Problem
You act for Penny Polking who attends your office. She is the sole director of Capital City Catering P/L and she is very distressed. Ms Polking tells you that she has a written contract dated 11 June 2022 between the Capital City Catering P/L and Danny Deschamps. Mr Deschamps is an event organiser and a celebrity. The contract notes that Polking agreed to supply premium quality seafood to Mr Deschamps for the sum of $160,000 for a special event he was arranging, the Luxe Legal Ball on 4 August 2022. The seafood comprised of 300 kgs of lobster, 100 kgs of smoked salmon and 50 kgs of imported caviar for the event. Polking arranged for her Capital City Catering driver to deliver the seafood to the Eastside Hotel, King St, Sydney, NSW by 4pm on 4 August 2022. Polking was at the event until about 11pm that night. Things seemed to go well on the night although there were some issues with power outages throughout the evening. Well before the event, under an express term of the contract, Deschamps paid Polking a deposit of $32,000 by EFT on 18 June 2022. An additional term of the contract required Deschamps to pay the balance within 7 days of the delivery of the seafood that is by 11 August 2022. It is now 21 days after the event and Deschamps has not paid the balance due under the contract being $128,000. Answer all the questions below. Must refer to specific provisions of the applicable legislation, court rules, practice directions and any relevant case law in NSW Australia.
A. You advise Polking that she can take action to recover the money owed by Deschamps to Capital City Catering P/L. You make and send a letter of demand to Deschamps but there is no response. What type of document will you have to file for Polking or her company to start court action? Does the document have to be provided to Deschamps? Is there a time frame which applies? Discuss and refer to relevant court rules and legislation.
B. Before you start court action for Polking, you need to advise Polking about the costs of legal proceedings, what the usual rule is as to costs after a trial ends. Further, advise Polking of the rules as to costs if she wins the case but made an offer to compromise/settle during the course of the litigation that Deschamps rejected. Summarise your advice to Polking and refer to relevant court rules, legislation and cases.