American Express Australia Ltd v Mi-Ok Pty Ltd t/a Topgun Technology [2006] NSWLC 28

Local Court of New South Wales

CITATION: American Express Australia Ltd v Mi-Ok Pty Ltd t/a Topgun Technology [2006] NSWLC 28 JURISDICTION: Civil PARTIES: American Express Australia Ltd Mi-Ok Pty Ltd t/a Topgun Technology FILE NUMBER: 11433/05 PLACE OF HEARING: DowningCentre Local Court DATE OF DECISION: 08/01/2006 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Contract - Terms and conditions - Onus onplaintiff to prove terms and conditions - Onus on plaintiff to prove breach of conditions - written terms - Consideration of the difference between signed and unsigned written contracts LEGISLATION CITED: Baltic Shipping Co ("The Mikhail Lermontov" ) v Dillon (1991) 22 NSWLR 1 CASES CITED: L'Estrange v Graucob [1934] 2 KB 394 Sydney City Council v West (1965) 115 CLR 353 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 Mr Keller - Counsel REPRESENTATION: Insight Litigation - Solicitors Mr O'Sullivan - Counsel ORDERS: Verdict for the Defendant. I propose an order that the costs follow the event in a sum agreed or assessed. Parties may have liberty to apply on the question of costs.

JUDGMENT

1. In this matter the plaintiff, American Express Australia Ltd ("American Express") claims a sum of $19,632.59 being an amount it paid to the defendant pursuant to a contract between the parties. It asserts an entitlement under the contract to be repaid those moneys. Although it concedes that a contract had been formed by the parties, the defendant, Mi-Ok Pty Ltd, trading as Topgun Technology ("Topgun") denies an agreement in the terms asserted by the plaintiff.