Flow Communications Pty Limited v Sunciti Telecom Pty Limited [2005] NSWSC 697

New South Wales Supreme Court

CITATION : Flow Communications Pty Limited v Sunciti Telecom Pty Limited [2005] NSWSC 697

HEARING DATE(S) : 13 July 2005

JUDGMENT DATE : 13 July 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : Judgment for the plaintiff in the sum of $2,350,856.12; the defendant, You Chan, is to pay the costs of the proceedings brought against him.

Flow Communications Pty Limited (Receivers and Managers Appointed) (Plaintiff) PARTIES : Sunciti Telecom Pty Limited (Defendant)

FILE NUMBER(S) : SC 11612/04

Ms N Obrart (Plaintiff) COUNSEL : N/A (Defendant)

Sirius Law (Plaintiff) SOLICITORS : N/A (Defendant)

LOWER COURT JURISDICTION :

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

13 July 2005

11612 of 2004 Flow Communications Pty Limited (Receivers and Managers Appointed) v Sunciti Telecom Pty Limited

JUDGMENT 1 His Honour: These proceedings were commenced by statement of claim. Originally there were two defendants. The plaintiff now proceeds only against the party, You ("Jim") Chan who was, originally, the second defendant. 2 The claim made against him is founded on a guarantee. On 10 July 2004 Mr Chan had a defence filed on his behalf. The defence seems to raise a number of matters, including that there was a limitation on his liability to the sum of $200,000, and various other claims, including claims for relief under the Contracts Review Act. 3 Until 3 March 2005 he had been legally represented. On that day his solicitors filed a notice of ceasing to act. The notice has attached to it an affidavit of service which provides two addresses upon which the notice of intention to cease to act was served. 4 The plaintiff now brings a notice of motion for summary judgment. The notice of motion has been served at the addresses specified in the affidavit attached to the notice of ceasing to act. The notice of motion has been before the court on a number of occasions. Mr Chan has not appeared on any of those occasions, despite being notified of each of the adjournments. In particular, he was given notice that the matter was listed for hearing today. Again there is no appearance by or on his behalf today. 5 The plaintiff has proceeded with the hearing of the summary judgment application. It is well established that summary relief is only granted in what might be described as "clear" cases. The court has before it a number of affidavits dealing with both the merits of the plaintiff's case and questions of service. 6 I have looked at the defence filed by Mr Chan. There is no evidence before the court to support the various matters that he claims or raises by way of a defence. My attention has been drawn to what has been described as a legal issue; this is the issue concerning the limitation of indebtedness in the sum of $200,000. 7 I have perused the document which is the guarantee upon which the plaintiff sues. It seems to me, as a matter of proper construction of that document, that what is relied on as giving rise to the limitation does not in fact limit the amount that is guaranteed under the document. 8 In the light of the material placed before me, I am of the view that the plaintiff has satisfied the onus that is borne in summary relief applications, and that the relief sought by the plaintiff should be granted. 9 I direct the entry of judgment in the sum of $2,350,856.12. The defendant, You Chan is to pay the costs of the proceedings brought against him. **********