Cantarella Bros Pty Limited v Modena Trading Pty Limited (No 2) [2013] FCA 130

FEDERAL COURT OF AUSTRALIA

Siegwerk Australia Pty Ltd (In Liquidation) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130 Citation: Siegwerk Australia Pty Ltd (In Liquidation) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130

Appeal from: Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231

Parties: SIEGWERK AUSTRALIA PTY LTD (ACN 007 114 338) (In Liquidation) v NUPLEX INDUSTRIES (AUST) PTY LTD (ACN 000 045 572) QBE INSURANCE (AUSTRALIA) LIMITED (ACN 003 191 035) v NUPLEX INDUSTRIES (AUST) PTY LIMITED (ACN 000 045 572)

File numbers: VID 265 of 2013 VID 713 of 2013

Judges: PERRAM, DODDS-STREETON & ROBERTSON JJ

Date of judgment: 20 November 2013

Catchwords: APPEAL AND NEW TRIAL – Retrial – Where reasons fail to deal with evidence PRACTICE AND PROCEDURE – Application to amend notice of appeal – Discretion to allow – Interests of justice – Finality – Where issue pleaded but at trial appellant's counsel agreed point sought to be raised was not in issue – Where respondent's counsel submitted the course of the trial had been significantly altered – Whether point went to the root of the claim – Application refused INSURANCE – Broadform liability policy – Indemnity in respect of claim for property damage as defined caused by an occurrence in connection with insured's business – Obligation to defend in insured's name and on insured's behalf any claim against insured seeking damages for property damage as defined – Whether liability of insured in respect of property damage – Whether loss of use of tangible property not physically damaged but caused by physical damage to other tangible property – Whether sudden and accidental physical damage to insured's products – Whether product recall exclusion applied – Whether property damage as defined resulting from active malfunctioning of insured's products