Kelen v Vitaman Pty Limited & Ors [2010] NSWSC 328

New South Wales Supreme Court

CITATION : Kelen v Vitaman Pty Limited & Ors [2010] NSWSC 328

HEARING DATE(S) : 3 March 2010

JUDGMENT DATE : 28 April 2010

JUDGMENT OF : Schmidt J

1. Leave to appeal is granted. 2. The appeal is upheld and the Local Court decisions are set aside. DECISION : 3. The parties are to recalculate the sum owed to the plaintiff, in accordance with the conclusions reached in this judgment. 4 . The defendants are to bear two thirds of the plaintiff's costs in the Local Court proceedings, as agreed or assessed. 5. The parties are to file short minutes to reflect the conclusions reached.

CATCHWORDS : APPEAL - leave to appeal against Local Court decisions - leave to appeal granted - loans advanced to defendant company on the security of personal guarantees provided by directors - calculation of moneys outstanding under loan - whether deduction of $10,000 discount agreed - calculation of prejudgment interest - award of $10,000 damages under cross claim - denial of natural justice - award of damages and prejudgment interest - contradicted findings in first judgment - unexplained departures from conclusions reached in first judgment - costs - unexplained departures from general rule - plaintiff's success in proceedings overlooked - both plaintiff and defendants partially successful - just cost order that defendants bear two thirds of plaintiff's costs - appeal upheld - Local Court decision set aside - costs

Civil Procedure Act 2005 Local Courts Act 2007 LEGISLATION CITED : Supreme Court Act 1970 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005