9 At the hearing on 7 November 2007, I made a direction that inquiries be made to ensure that notice had been given to the first and second defendants of the hearing date. The plaintiffs subsequently sought and obtained leave to rely upon two affidavits sworn respectively by Mr Alexander Haslam and Mr Peter Jonathan Lander on 7 November 2007.
10 Mr Haslam gave evidence that advice of the hearing date of 7 November 2007 had been provided to Mrs Pallister by the firm of solicitors who had previously acted for the first and second defendants, Somerville & Co, by way of email on 22 June 2007. The email address to which the email had been sent was vanessap@mobileemail.vodafone.com.au.
11 Mr Lander's affidavit evidence referred to two letters sent by Mr Lander to Mr and Mrs Pallister on 27 September 2007 which attached a draft schedule of damages, a schedule of issues in dispute and a chronology of events. A further letter was sent on 30 October 2007 to Mrs Pallister personally inquiring whether she intended to appear at the hearing on 7 and 8 November 2007.
12 On the basis of the evidence in the affidavits, I was satisfied that the second defendant had been informed by her former solicitors of the dates for the hearing.
13 By judgment given on 7 November 2007, I determined that the hearing should proceed on an "undefended basis": [2008] NSWSC 504 at [2].
14 The following affidavits were relied upon by the plaintiffs at the final hearing:-
(a) Affidavit of Peter Jonathan Lander sworn 16 January 2007;
(b) Affidavit of Robin Mignon Hayes Hearse sworn 22 January 2007;
(c) Affidavit of Phillip Baden Hearse sworn 23 January 2007.
15 The evidence of Mr Lander, the solicitor who had acted for the plaintiffs on the purchase of the subject property, was relied upon as establishing the primary facts, particularly in relation to the alleged addition of Mrs Pallister to the contract of sale.
16 Mr Lander's affidavit annexed a letter marked "C" from Mr Staunton to Mr Lander dated 16 December 2004 in which Mr Staunton informed Mr Lander that he was ready to exchange subject to three conditions, one of which was:-
" 3. Purchaser: Vanessa Joan Pallister will probably be added as a joint purchaser pursuant to Section 18(3) of the Duties Act prior to completion ."
17 The contracts were exchanged on 16 December 2004. A letter from Mr Staunton to Mr Lander dated 19 January 2005 was annexed to Mr Lander's affidavit at "G", which stated:-
" We enclose an unstamped Transfer for execution by the Vendors. Please return the Transfer to us for stamping purposes.
Please note that we have added Mrs Pallister as a joint purchaser pursuant to S.18(3) of the Duties Act, 1997. Please amend the counterpart Contract accordingly."
18 The evidence arguably indicated, at least on a prima facie basis, that Mrs Pallister had been made a party to the contract of sale, although the evidence did not specifically establish that Mr Staunton had actual authority from Mrs Pallister to him to act on her behalf.
19 The plaintiffs' claim at hearing was one for damages based on the contractual provisions in clause 8 and Special Condition 2(b) of the contract ([2008] NSWSC 504 at [45]). Following a failed sale and subsequent resale, clause 9.3 of the contract allowed the plaintiffs/vendors to either claim for liquidated damages pursuant to the contract or claim for unliquidated damages at common law. Although plead in the alternative, at hearing, the plaintiffs elected to claim liquidated damages in accordance with clause 9.3.1 ([2008] NSWSC 504 at [49]).
20 Pursuant to UCPR rule 29.7(3), if in relation to a liquidated claim the plaintiff appears but a defendant does not appear, the Court may, without proceeding to trial, give judgment against that defendant on the evidence of:-