American Express International Inc v Ian Bennell & Anor [2003] NSWSC 976

New South Wales Supreme Court

CITATION : American Express International Inc v Ian Bennell & Anor [2003] NSWSC 976 HEARING DATE(S) : 23-25/09/03, 21/10/03 JUDGMENT DATE : 3 November 2003

JUDGMENT OF : Cripps AJ DECISION : (i) The second named defendant is not liable as a guarantor for the indebtedness of the first named defendant; (ii) judgment for the plaintiff against the first and second named defendants; (iii) The first and second named defendants to pay the plaintiff's costs

CATCHWORDS : Debt owing on credit cards - late payment interest claimed to be a penalty - liability of guarantor PARTIES : American Express International Inc - Plaintiff Ian Bennell & Anor - Defendants FILE NUMBER(S) : SC 12169 / 2002 COUNSEL : M. Ashhurst - Plaintiff S.J Bennell (in person) - 1st and 2nd Defendants SOLICITORS : Kemp Strang Lawyers - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Cripps AJ

3 November 2003

12169/02 - American Express International Inc v Ian Bennell & Anor

JUDGMENT 1 HIS HONOUR: On 7 August 2002 the plaintiff commenced proceedings against four named defendants to recover charges incurred by them on their credit cards and, in the case of the first and second named defendants pursuant to guarantees given by them. The plaintiff has discontinued against the third and fourth named defendants. 2 The first named defendant was, at all relevant times, the holder of a platinum card, a gold card and a corporate card (of which he was the primary cardholder) issued by the plaintiff. The second named defendant was, at all material times, the holder of a gold card. 3 The plaintiff was represented by counsel. The first and second named defendants were represented by lawyers at the time their amended defence was filed but not thereafter. The second named defendant Ms Bennell represented herself and her husband. She gave evidence – her husband chose not to. The evidence presented by Ms Bennell does not persuade me that her husband was unable to give evidence.