Affidavit sample

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LLW 4009
Sep 14, 2023
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Studocu is not sponsored or endorsed by any college or university Affidavit-civil-matters College of Law Civil Procedure (The College of Law (Australia)) Studocu is not sponsored or endorsed by any college or university Affidavit-civil-matters College of Law Civil Procedure (The College of Law (Australia)) Downloaded by Sehajpal Singh ([email protected])
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION - GENERAL LIST No. [proceeding no.] B E T W E E N BROWNS BRICKS PTY LIMITED ACN 082 753 276 Plaintiff -and- ANDREW ALLEN T/AS NORTHERN HOMES ABN 32 054 865 246 Defendant AFFIDAVIT Date of Document: 26/02/2022 Solicitors Code: 123456 Filed on behalf of: The defendant Telephone: 03 9416 2087 Prepared by: Law & Co Lawyers DX: 222222 Ref: LL:221383 Email: [email protected] I, Andrew Allen of 19 Jolimont Terrace, East Melbourne, VIC 3002, Licenced Builder, affirm and say: Background 1. I am the sole proprietor of the business, Northern Homes. 2. I have worked in the building industry for over 25 years. 3. On or about 15 September 2021 I placed an order to Brown's Bricks by email and by fax for 70,000 bricks, from the Heritage range, to be delivered to Lot 34 Tangerine Road, Box Hill, Victoria, within 7 days. Meritorious Defence 4. I believe that I have a meritorious defence, in that I never received the goods the plaintiff claims they provided, in order to have incurred the alleged debt. 5. On or about October 15 th 2021 date I received an invoice from the plaintiff for the goods I ordered. I had the following conversation with Lynn Dalton of the plaintiff's office, informing them that I had not received the order and I would not be paying the invoice: I said: "Lynn, what you want me to pay for thin air now?". Lynn said: "What do you mean?". I said: "Well I've just got your invoice for the bricks, and I'd like to know when they're going to be delivered?". Lynn said: "I think they were delivered over a week ago". I said: "Well if they were, I haven't seen them. You'd better check your records and get back to me". 1 Downloaded by Sehajpal Singh ([email protected])
6. Later that day there was a second phone call with Lynn Dalton of the plaintiff's office, where they claimed to have delivered the order but said no-one had been there to sign for the items: Lynn said: "I've checked the records and the bricks were delivered to Lot 34 Tangerine Road, Box Hill on Saturday 10th October 2021". I said: "Well we'd better send out a search party for them because they aren't there". Lynn said: "Well on our records they are". I said: "Who delivered the bricks?". Lynn said: "Emu Transport". I said: "Before I go, do your records show anyone having signed for the bricks?". Lynn said: "No, when Emu delivered the bricks there was no one there". 7. On or about December 15 th 2021 upon receiving the writ I again informed the plaintiff by telephone call with Lynn Dalton of the plaintiff's office, that the order had not been received: I said: "Now you are suing me for those bricks I never got". Lynn said: "We know you got them, you are just trying to get out of paying for them". I said: "I couldn't pay for them if I wanted to, as I lost a lot of money on that job". 8. On or about 1 February 2022, Bill Cummins informed me that an order of bricks had been delivered to the address at Lot 34 Tangiers Road, Box Hill VIC, around the time my order was said to have been delivered: Bill said: "I was working on a building site at Lot 34 Tangiers Road, Box Hill a few months ago. It's a vacant lot. All of a sudden these bricks turned up. We couldn't use the bricks there but the owner of the site thought they would do nicely for his new house extension and he arranged to have the delivered to another address." I said: "What type of bricks were they?". Bill said: "Sorry mate, can't tell you how many or the type". Reason for not filing a defence 9. Within 10 days of being served the writ, on or about 12 th December 2021, I attended the court to arrange filing an appearance, however I mistakenly attended the incorrect court. Following this, my wife fell ill and I failed to then file an appearance on time, which was an oversight. Prompt application for setting-aside judgement 10. On or about 12 th January 2022 I attended the County Court at Geelong where I was informed that judgment had been entered against me on 11 th January 2022. 11. The clerk at the County Court informed me that I needed to engage a solicitor to deal with the judgment, which at the time I could not afford to do. Prejudice to plaintiff 12. I do not believe the plaintiff would be prejudiced in any respect which could not be adequately compensated for by a suitable award of costs and the giving of security, if the judgment was set aside. The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offences of perjury. 2 Downloaded by Sehajpal Singh ([email protected])
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