Enterprise and Management Pty Limited v Tomasevich [2014] NSWDC 335

District Court New South Wales

Medium Neutral Citation: Enterprise and Management Pty Limited v Tomasevich [2014] NSWDC 335 Hearing dates: 8 and 9 April 2014 Date of orders: 10 April 2014 Decision date: 10 April 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $112,013. (2) The defendant to pay the plaintiff's costs. Catchwords: BREACH OF CONTRACT – sale of business – truth of financial records warranted – business underperforming – record, false – calculation of damages – goodwill – trading losses - costs Legislation Cited: Uniform Civil Procedure Rules 2005, r 36.16 Cases Cited: Clark v Macourt [2013] HCA 56 European Bank Ltd v Robb Evans of Robb Evans & Associates [2010] HCA 6; (2010) 240 CLR 432 Hadley v Baxendale (1854) 156 ER 145 Category: Principal judgment Parties: Enterprise and Management Pty Limited (ABN 30 075 709 876) (plaintiff) Mattie Tomasevich (defendant) Representation: Counsel: Mr B Camilleri (plaintiff)

Solicitors: Emil Ford Lawyers (plaintiff) File Number(s): 2012/260000 Publication restriction: None

Judgment 1. The plaintiff ("Enterprise") purchased a gift shop business from the defendant, Mattie Tomasevich, pursuant to a written agreement. Enterprise alleges that Ms Tomasevich breached the agreement and made misleading representations, and sues for damages. 2. Ms Tomasevich did not appear at the hearing. On 4 April 2014 Ms Tomasevich's then lawyers, Clamenz Evans Ellis Lawyers, wrote to Enterprise's lawyers in the following terms: "We advise that we no longer act for the Defendant as she has terminated our retainer. Please find enclosed a copy of the Notice of Removal of Solicitor which was filed in the District Court of New South Wales today. In respect to the hearing listed for Tuesday 8 April 2014, we suggest you contact Ms Tomasevich directly as we have not been advised whether she has engaged in further legal representation. We note that we have been instructed that Ms Tomasevich currently lives offshore in India. However, we have not been provided with her current address as our primary form of communication has been via telephone. We have also provided her last known address in the Notice of Removal of Solicitor. If you have any questions, please contact the writer." 1. Enterprise elected to proceed with the hearing ex parte after being informed of the impact of r 36.16 of the Uniform Civil Procedure Rules 2005 on a judgment given in the absence of parties. During the course of the hearing, after inquiries, Ms Tomasevich's previous lawyer provided her email address to Enterprise's lawyers and an email about the proceedings was sent to that address. It elicited no response.