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Darren Kruse
Darren Kruse, Solicitor
Category: Australia Law
Satisfied Customers: 16
Experience:  Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.
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Im involved in the wine industry. A few years ago I contacted

Customer Question

I'm involved in the wine industry. A few years ago I contacted a transport company to transport bulk wine from WA to NSW. The price was 19c/ltr. I engaged them again and then got an account of 27.5c/ltr Nowhere was there any information suggesting that there would be a price increase with out notification. I paid the account at 19 cents. I have all the receipts from my bank (Domestic Transfer Funds). I said that I would be happy to discuss. The first solicitor I engaged got disbarred. The second, useless. They should have argued that I paid the account. They did not. I should have been given notification of a price increase. I did not receive one. What happened was that I got sued. I entered into an arrangement to pay back the difference! I should not have. So it automatically came out of my bank account. My account fluctuates and sometime don't notice if a payment does not come out. Example: NRMA, if I miss a payment I get a notification within a few days. It took the transport company 14months to notify me then got authorities to come to my home. I phoned the owner of the transport company and said I paid the original account, he said he was not aware. I then went back to the court to state my case, showing evidence of payment. But the court said they could not look at this retrospectively. I wanted to Set aside judgement and dismissed. From the tone of the magistrates voice, he agreed with me. I need to go to District Court in WA to fight this.
Submitted: 3 years ago.
Category: Australia Law
Expert:  Darren Kruse replied 3 years ago.

section52 :

Hi

section52 :

What was the value of the judgement entered against you and in what jurisdiction ? I note that you want to appeal to the WA District Court, but your information says Paddington NSW. A WA court will not entertain an appeal of a NSW Court.

section52 :

I can give you some more information if you like and if you tell me the value of the judgement entered against you and in what court (jurisdiction) the judgment was entered.

Darren Kruse, Solicitor
Category: Australia Law
Satisfied Customers: 16
Experience: Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.
Darren Kruse and other Australia Law Specialists are ready to help you
Expert:  Darren Kruse replied 3 years ago.
We are now out of interactive chat mode.

I'm happy to help further if you tell me the value of the judgment entered against you and in what court (jurisdiction) the judgment was entered.

Darren Kruse, Solicitor
Category: Australia Law
Satisfied Customers: 16
Experience: Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.
Darren Kruse and other Australia Law Specialists are ready to help you
Customer: replied 3 years ago.

The judgement was for $13k (this included legal fees) I paid back $8 k but I should not have been sued. I want my $8k back legals and interest. I have all the emails stating that I was not given any indication of the price rise, and I wrote letters trying to speak to management to discuss but they would not.

Expert:  Darren Kruse replied 3 years ago.
Which Court entered judgment against you and on what date ?
Customer: replied 3 years ago.

Busselton Court WA in June 06. And Just recently March 2011 to uphold the original decision because the magistrate could not got back. So he suggested I go to District court. As I said I paid the account! I spoke to the owner of the transport company and he did not realise I paid the account - I said that I just did not pay the increase because my customer was Woolworth's and they said to me I did not notify them of increases in transport - how can I charge them? They paid me on the original cost of invoice - which I paid the transport company. Personally, I paid the account and still got sued!

Expert:  Darren Kruse replied 3 years ago.
OK ; the WA Magistrates Court judgment was for $13K in March 2011 (presumably for the difference between 19 and 27.5c/ltr + legals + interest) but you only want to claim $8k back for legals and interest ?

Why are you not seeking to appeal the whole of the $13K judgment to the District Court ? I assume you would argue that the terms of the transport contract were never varied from 19 to 27.5c/ltr

If you are only seeking $8K then this is a "minor case" and you have very limited rights to an appeal to the District Court.
Customer: replied 3 years ago.

Ok I would be happy to seek the $13k plus interest, loss of reputation and legals. But I didn't think I would be entitled to the $13k as I only paid out $8k - there is now a balance of nearly $8,500.00 owing because of interest etc.

Expert:  Darren Kruse replied 3 years ago.
Sorry, I'm a little confused about exactly when you paid out this $8K

You paid the account at the 19c/ltr rate. This was for some other amount - presumably a lot more than $8K.

There was a difference of $??

You got sued for the difference plus interest plus legal costs.

You eventually had judgment awarded against you for $13K being made up of:
a) the difference $??
b) interest on the difference
c) legal costs.

You have then paid $8K against this judgment of $13K ?
or
The original account was for $8K that you paid ?

Customer: replied 3 years ago.

Apologies. The $13k was the judgement which was made up of the difference in the amount and legal fees plus interest. The difference in the amount (I don't have the paper work right in front of me) is about $6,000.00 so the balance is the legals plus interest. I got sued for the difference plus interest plus legals! So the judgement was for $13k of which I paid back $8k. So a balance of $5k. Now this has escalated. I should not have been sued as there was never any notification on any paperwork of a price increase. I agreed to 19 and never agreed to 27.5. The first solicitor got disbarred and the 2nd didn't understand that I paid the account - I should have been better informed. But me being in Sydney and the court in country WA. was against me. There was no mention on the documents from the transport company of any increase "without notice." What I did was to try and negotiate a solution. I tried to speak to the transport company and find a compromise. No one would take my call. Then I got harassed by the debt collectors - over 100 phone calls. I said that I paid the account, all bank receipts supplied but they would not take my calls.

Expert:  Darren Kruse replied 3 years ago.
I agree with you and the Magistrate that the only way to sort this mess out is to appeal it to the District Court.

Notwithstanding that you have already paid $8K off the $13K judgment (leaving $5K or thereabouts still to pay) , you never should have had judgment entered against you for the $13K because you say that the terms of the transport contract were never varied.

Because the amount in dispute is more than $10K, this is not a minor case and you therefore have a right of appeal to the District Court.
See http://www.austlii.edu.au/au/legis/wa/consol_act/mcpa2004368/s40.html

You should plead that the entire judgment of $13K should be set aside, and that the $8K that you paid following that judgment should be returned to you.

You have 21 days from the delivery of the Magistrates Court judgment to appeal ; leave to extend this time can be sought if needed.

See DISTRICT COURT RULES 2005 - REG 51 Appeal, commencement of http://www.austlii.edu.au/au/legis/wa/consol_reg//dcr2005236/s51.html

This will also be helpful to show how an appeal is set out. It will have to be changed to suit the specifics of your case.
http://www.districtcourt.wa.gov.au/_files/Circular%20to%20Practitioners%202009-2%20%20Registrar%20Appeals.pdf

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