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Debt, or liquidated demand

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AE Consulting Pty Ltd v Online Valuations Pty Ltd [2012] NSWSC 1300. Davies J.

6. In Alexander v Ajax Insurance Co Ltd [1956] VicLawRp 70[1956] VLR 436 Sholl J concluded that the expression "debt or liquidated demand" covered any claim: 

for which the action of debt would lie; 

for which an indebitatus (or "common") count would lie; 

for which covenant or special assumpsit would lie provided that the claim was for a specific amount not involving in the calculation thereof elements whose selection would depend on the opinion of a jury. 

7. Sholl J said (at 442): 

It would therefore seem that, in order to be "liquidated", the sum claimed (save no doubt, in the case of a claim for a reasonable amount. Where that could have been sued for under the common counts) must, in the opinion of the Court, have been agreed upon in some binding and conclusive fashion. 

8. The present is not such a claim. The Plaintiffs correctly claims damages from the valuer for breach of contract and for breach of s 18 Australian Consumer Law.

9. The mere fact that calculation can be made of the precise amount of damages that are alleged to be payable does not convert what is a claim for damages into a claim for a liquidated sum: Alexander at 450. 

10. Accordingly, the application is properly one pursuant to r 16.7 for default judgment for unliquidated damages. I am satisfied by reason of the absence of any Defence that judgment should be given to the Plaintiffs for damages to be assessed.

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