Cherry Media Pty Ltd v Paykel Media Company Pty Ltd [2007] NSWLC 32

Local Court of New South Wales

CITATION: Cherry Media Pty Ltd v Paykel Media Company Pty Ltd [2007] NSWLC 32 JURISDICTION: Civil PARTIES: Cherry Media Pty Ltd Paykel Media Company Pty Ltd FILE NUMBER: 4938/07 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 12/12/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Procedure – what is "claim for damages" in Legal Profession Act Sec 347(2) – consequences of not attaching certificate under Sec 347(3) Legal Profession Act – Power of Magistrate to set aside Order of Assessor – whether finding of no jurisdiction amounts to order or judgment. LEGISLATION CITED: Uniform Civil Procedures Rule 36.15, Rule 36.1BA, 3B Degiorgio v Dunn (No 2) (2005) NSWSC 3 Groth v Audet (2006) NSWCA 48 CASES CITED: Cvetkovic & Anor v Parexel International Pty Limited & Anor (2007) NSWSC540 Autodesk Inc v Dyason (No2) 1993 176 CLR 3000 Hunyh v Swanson (1999) NSWSC 72 REPRESENTATION: Plaintiff's Solicitor: Mr D C Jenkins Defendant's Solicitors: Mr B W Gower ORDERS:

JUDGMENT

1. This matter was before the court to hear the plaintiff's motion seeking the following orders: 1. The orders of the Assessor made 24 September be set aside. 2. The proceedings be transferred from the Small Claims Division to the General Division. 3. The defendant pay the plaintiff's costs of the motion. 2. The plaintiff pleaded its Statement of Claim seeking recovery of the sum of $7,432.49 as follows: "The plaintiff relies on the following facts and assertions: 4. By an agreement dated on or about 27 March 2006 the defendant agreed to act as a media transacting agency for the plaintiff. 5. It was a term of the agreement that the defendant would remit to the plaintiff 80% of the commissions received for production and media placement through the agency of the defendant. 6. The plaintiff has invoiced the defendant for money owing pursuant to the agreement for the month of December 2006 in the sum of $13,074.93 inclusive of GST. 7. The defendant has paid $5,652.44 leaving a balance owing of $7,432.49. 8. The plaintiff has demanded but the defendant has failed and refused to pay the amount owing to the plaintiff." 3. The defendant filed a Defence and the matter came on for hearing before the Assessor in the Small Claims Division of the Court on 24 September 2007. The parties had filed and exchanged statements.