HIS HONOUR: The court makes orders in terms of the initialled draft to the following effect, namely that:

(1) The defendant pay the plaintiff damages to be assessed upon the plaintiff's claim and statement of claim together with interest, and that the value of damages be assessed by the District Court.

(2) Pursuant to rule 509(1) of the UCPR, leave be given for the plaintiff to proceed with the assessment of damages by way of application with evidence in chief to be given by affidavit.

(3) The defendant pay the plaintiff's costs of the proceedings to date, including the application filed 24 November 2010.

(4) The plaintiff's application that the above cost be fixed under rule 687(2)(c) in the amount of $2,257.50 be adjourned for hearing with the assessment.

The plaintiff's claim arises from damage to a Kenworth prime mover in a motor vehicle accident on the Bruce Highway on the afternoon of the 23rd of April 2009.

According to the statement of claim, the defendant drove her vehicle onto the wrong side of the road, causing a collision which damaged the prime mover occasioning the incurring of costs for repair in the amount of $104,376.27.

The statement of claim records the defendant as making payments totalling $1200 in part payment, and claims the balance. That balance is further reduced by a sum of $40 acknowledged to have been paid. Recently, the amount of the claim fluctuates by reason of interest accruing.

The defendant has failed to file a notice of intention to defend. The plaintiff sought default judgment under rule 284. On the 27th of October 2010, the registrar declined to enter a judgment for damages to be assessed under the rule. An aspect may have been the unavailability of an affidavit of service of the claim and statement of claim.

The registrar's notation also notes, "The claim and statement of claim specifically plea a liquidated demand; a debt of $103,176.27 plus interest. The request for default judgment is for un-liquidated damages to be assessed? The request in default need to reflect the claim and statement of claim, alternatively the claim and statement of claim will need to be amended and reserved."

The plaintiff's solicitors tried again with the registrar, presenting authority to support their contention that the claim was in fact one for un-liquidated damages so that rule 284 was appropriate.

It appears that that the notion that the claim should be characterised as a liquidated one arose in the registry. The plaintiff's documents nowhere refer to the claim as liquidated. What impressed the registrar was the precision of the amount set out.

In my opinion, the solicitors' approach is correct. The legal nature of the claim is that it is un-liquidated, notwithstanding that it can be and has been precisely quantified. Authorities that bear out this proposition were collected by Judge Brabazon QC in Day v. Bell [2001] QDC 329 at paragraphs 41 and 42.

More recently, in Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26 Nettle J said, in paragraph 79, "The ordinary meaning of "liquidated damages" is a sum fixed by the parties to a contract as a genuine pre-estimate of damage in the event of a breach, whether as a predetermined lump sum, or by means of a specific calculation or scale of charges or other positive data..." Paragraph 81, "...it is also clear that a claim for un-liquidated damages is not converted into a claim for liquidated damages by reason of the plaintiff having incurred and being able to specify the costs for which the damages are claimed."

The registrar on the 4th of November 2010, was unmoved by the legal argument advanced by the solicitors, and for that reason the application was made to the court. The interests of efficiency dictate the court making an order rather than remitting the matter to the registrar with a direction to enter judgment under rule 284.

The court can assist the plaintiff by facilitating a mode of trial pursuant to rule 509, as specified in paragraph 2 of the draft order.

I've authorised proceedings in that way on a recent assessment, myself.

Exhibit 1 is the plaintiff's calculation of costs of the proceeding to date which the court was asked to fix in the scale amounts indicated. There is scope for some issues to be considered in assessing or fixing costs, for example, in respect of the claim for costs of obtaining judgment from the registrar on the 4th of November 2010.

The view might be taken that it's hardly the defendant's responsibility that the registry took the view that was taken, thereby necessitating today's appearance in Court for which a more modest charge is made.