FEDERAL COURT OF AUSTRALIA ThyssenKrupp Materials Handling Pty Ltd v Trans Global Projects Pty Ltd (No 1) [2014] FCA 817 Citation: ThyssenKrupp Materials Handling Pty Ltd v Trans Global Projects Pty Ltd (No 1) [2014] FCA 817 Parties: THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 v TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 and MAMMOET AUSTRALIA PTY LTD ACN 075 483 644; MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 v TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 and THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325; TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 v THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325; TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 v MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 File number: NSD 2431 of 2013 Judge: PERRAM J Date of judgment: 7 August 2014 Legislation: Burgerlijk Wetboek [Civil Code] (Netherlands), Art 8:1102 Date of hearing: 18 July 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 24 Solicitor for ThyssenKrupp Materials Handling Pty Ltd: Mr M Lynch of Piper Alderman Solicitor for Trans Global Projects Pty Ltd: Mr P Clay of Holman Fenwick Willan Counsel for Mammoet Australia Pty Ltd: Mr J Hogan-Doran Solicitor for Mammoet Australia Pty Ltd: HWL Ebsworth Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2431 of 2013 BETWEEN: THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Plaintiff AND: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 First Defendant MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Second Defendant AND BETWEEN: MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Cross-Claimant (First Cross-Claim) AND: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 First Cross-Defendant (First Cross-Claim) THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Second Cross-Defendant (First Cross-Claim) AND BETWEEN: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 Cross-Claimant (Second Cross-Claim) AND: THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Cross-Defendant (Second Cross-Claim) AND Between: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 Cross-Claimant (Third Cross-Claim) AND: MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Cross-Defendant (Third Cross-Claim) JUDGE: PERRAM J DATE OF ORDER: 7 AUGUST 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Mammoet has leave to file an amended defence in the form annexed to the affidavit of Danella Wilmshurst sworn 10 July 2014 at annexure DAW-1. 2. Mammoet has leave to file an amended statement of cross-claim in the form annexed to the affidavit of Danella Wilmshurst sworn 10 July 2014 at annexure DAW-1. 3. Such pleadings be filed and served on or before 8 August 2014. 4. ThyssenKrupp file and serve any reply to the amended defence on or before 15 August 2014. Alternatively, ThyssenKrupp may give notice to Mammoet that its reply filed on 20 February 2014 shall stand as its reply to the amended defence. 5. Trans Global file and serve any defence to the amended statement of cross-claim on or before 15 August 2014. 6. Mammoet file and serve any reply to Trans Global's defence to the amended statement of cross-claim in the first cross-claim on or before 22 August 2014. 7. Mammoet pay any costs of the other parties thrown away by reason of the amendments. 8. Trans Global pay Mammoet's costs of or relating to the hearing of the interlocutory application filed 10 July 2014. 9. Trans Global serve any proposed amended statement of cross-claim in the third cross-claim on or before 13 August 2014. 10. In the event that Mammoet consents to the filing of the amended statement of cross-claim in the third cross-claim on or before 18 August 2014, Trans Global shall file and serve the pleading on or before 20 August 2014, and: (a) Mammoet shall file and serve any defence on or before 27 August 2014; (b) Trans Global shall file and serve any reply on or before 2 September 2014. 11. The directions hearing on 2 September 2014 is confirmed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2431 of 2013 BETWEEN: THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Plaintiff AND: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 First Defendant MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Second Defendant AND BETWEEN: MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Cross-Claimant (First Cross-Claim) AND: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 First Cross-Defendant (First Cross-Claim) THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Second Cross-Defendant (First Cross-Claim) AND BETWEEN: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 Cross-Claimant (Second Cross-Claim) AND: THYSSENKRUPP MATERIALS HANDLING PTY LTD ACN 108 552 325 Cross-Defendant (Second Cross-Claim) AND Between: TRANS GLOBAL PROJECTS PTY LTD ACN 112 290 089 Cross-Claimant (Third Cross-Claim) AND: MAMMOET AUSTRALIA PTY LTD ACN 075 483 644 Cross-Defendant (Third Cross-Claim) JUDGE: PERRAM J DATE: 7 AUGUST 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The question on the present application is whether the second defendant, Mammoet Australia Pty Ltd ('Mammoet'), should be given leave to amend its defence to the claim brought by the plaintiff, ThyssenKrupp Materials Handling Pty Ltd ('ThyssenKrupp'), and its statement of first cross-claim against ThyssenKrupp and the first defendant, Trans Global Projects Pty Ltd ('Trans Global'). Trans Global consented to the filing of the amended defence and ThyssenKrupp consented to the amendment of both pleadings on the basis that Mammoet pays its costs thrown away by reason of the amendments. 2 ThyssenKrupp was retained by BHP to design, supply, deliver to site, install and commission a bucket wheel reclaimer. A bucket wheel reclaimer is a very large machine used for moving granular material, such as iron ore, from one place to another. BHP proposed to use the bucket wheel reclaimer involved in this case to load iron ore onto ships at its facility on Finucane Island near Port Hedland, presumably with a view to taking the ore elsewhere. 3 ThyssenKrupp constructed this behemoth in modules at premises in Henderson, Western Australia. One of the modules was the bucket wheel reclaimer boom. This component of the bucket wheel reclaimer is also large, indeed, very large. 4 ThyssenKrupp therefore needed to transport the boom from Henderson to BHP's facility at Finucane Island. It engaged Trans Global to perform this function. ThyssenKrupp delivered the boom to one of Trans Global's contractors, Patrick Stevedores, on 22 and 23 December 2012 at the Australian Marine Complex, Henderson. Those stevedores loaded it onto a vessel contracted by Trans Global to convey the boom to Port Hedland. 5 At the other end, Trans Global retained Mammoet to carry the boom from the port at Port Hedland to BHP's site at Finucane Island. Mammoet collected the boom from the vessel on 1 January 2013 and conveyed it by road to the designated lay down area within the port. There the boom rested until 30 January 2013 when it was loaded onto a trailer attached to a prime mover. On 31 January 2013, Mammoet began to move the boom by road. At 1:45 am in the morning on 1 February 2013, approximately 300 metres from the Port Hedland Road intersection, the boom slid off the trailer sustaining damage. Given the sheer size of the machinery involved this was unquestionably a significant industrial incident. 6 ThyssenKrupp has now sued both Trans Global and Mammoet and they have each cross-claimed against each other and ThyssenKrupp. 7 The present question arises in the context of Mammoet's cross-claim against Trans Global. At its simplest, Mammoet alleges that the terms of the contract between it and Trans Global involved a promise by Trans Global that it would obtain insurance to cover the risk of harm to the boom and that Mammoet would be named on the policy. Further, Trans Global promised that the insurer engaged would waive any rights of subrogation against Mammoet. 8 As events appear to have transpired, insurance of this kind was not arranged by Trans Global. The gist of Mammoet's cross-claim is that if such a policy had been in place it would not now be out of pocket. It therefore claims from Trans Global a full indemnity in respect of any liability arising from damage to the boom. 9 The clauses containing these terms were contained in a document which was prepared by the Dutch Vertical Transport Association entitled 'Standard Terms and Conditions of the Vertical Transport Association'. One of its provisions says that the contract is to be governed by Dutch law. If Dutch law applies, then under Article 8:1102 of the Burgerlijk Wetboek [Civil Code] (Netherlands) ('Dutch Civil Code') it is provided (in Dutch) that any clause which limits the liability of a person delivering goods: '…shall be null and void, unless such provision has been entered into expressly and otherwise than by reference to provisions appearing in another document, in a contract specifically entered into with respect to the intended carriage and set out in a separate document.' 10 One of the debates between these parties is whether the standard terms and conditions were, to use the language of Art 8:1102, entered into 'by reference to provisions appearing in another document'. 11 The allegation presently made by Mammoet about the formation of the contract and its terms is in paragraphs 7-9 of its statement of cross-claim. They provide: '7. On or about 21 September 2012, the Cross-Claimant provided a quotation to the First Cross-Defendant for the carriage of the Consignment from Port Headland [sic] wharf to a designated lay down area within the secured grounds of the Port Hedland Port Authority, followed by road carriage from the designated lay down area to the BHP Finucane Island Site ("the Mammoet Quotation"). Particulars (a) Written quotation provided to the First Cross-Defendant via email on or about 21 September 2012. (b) The email referred to in paragraph 7(a) above attached a copy of the Cross-Claimant's Quotation number MM-AU/QUOTE-0141 and a copy of the Cross-Claimant's Standard Terms and Conditions (2010). (c) The email referred to in paragraph 7(a) above contained a notice that: "Our Standard Terms and Conditions (2010) apply to all our offers, agreements and any commitments arising therefrom." 8. The Cross-Claimant's Quotation stated that it was subject to the Cross-Claimant's Terms and Conditions. Particulars (a) Page 1 of the Cross-Claimant's written Quotation number MM-AU/QUOTE-0141 dated 21 September 2012. 9. On or about 11 January 2013, the First Cross-Defendant accepted the Mammoet Quotation ("the Agreement"). Particulars The Cross-Claimant's Quotation was signed and accepted in writing by Simon Duke on behalf of the First Cross-Defendant.' 12 In the midst of these allegations there is plainly room for a contention that the standard terms and conditions were provisions which, within the meaning of Art 8:1102, appeared in another document and were included in the contract by reference. In its defence to Mammoet's cross-claim, Trans Global has raised just such an argument: see paragraph 12(e)(vii). 13 This limb of the case will involve a consideration of the operation of Art 8:1102 of the Dutch Civil Code. Experts in Dutch transport law have been retained by both parties. Trans Global retained Professor Claringbould, a part-time professor of maritime and transport law at Leiden University and a partner of the law firm Van Traa Advocaten in Rotterdam. Mammoet retained Professor Haak who is also expert in Dutch transport law. 14 In addition, the parties have prepared a statement of agreed facts. Unlike the statement of cross-claim, the statement of agreed facts does not contain any fact as to the acceptance of the quotation. On the issue of the formation of the contract the only matter relevantly agreed was in paragraph 5 as follows: '5. Trans Global entered into a contract with Mammoet in relation to road carriage of the Package.' 15 The orders made by the Court on 12 May 2014 included an order that the parties prepare an additional statement of agreed facts in relation to all issues regarding foreign law by 18 July 2014. I was not taken to the terms of any such statement during the present debate and, indeed, it does not appear to have been provided at this time. 16 The two experts thereafter prepared their reports and then, very usefully, a joint report. On the issue of Art 8:1102 the joint report says: '(j) Haak is of the opinion that the parties will comply with Article 8:1102 DCC if the written agreement that was entered into – whether on paper or electronically – for the intended carriage, is in a document, and the general terms and conditions are enclosed with that document and, as such, has been submitted to the other party upon formation of the agreement. (k) Claringbould takes the view that any reference to general conditions – even if such general conditions are attached as a separate document to the framework agreement (and are as such applicable to that agreement) – is still a reference to general conditions. Moreover, any provision increasing or reducing the carrier's liability in such general conditions, has not been entered into expressly in a contract specifically entered into with respect to the intended carriage and set out in a separate document. Therefore, any such 'deviating' provision in general conditions does not comply with the requirement that such provision has to be entered into expressly (italics; MHC) in the contract and for that reason alone such provision in general conditions is null and void.' 17 Thus is the dispute between the parties. It will be seen that Professor Haak views the issue as being whether the document in question was itself part of the initial agreement whereas Professor Claringbould takes a narrower view. 18 Mammoet now wishes to amend its statement of cross-claim in three ways that are opposed by Trans Global. First, it wishes to contend that the quotation was accepted orally on 22 or 23 November 2012. Secondly, it wishes to allege that the agreement was made in Australia. Thirdly, it wishes to make changes which, if allowed, would emphasise that the standard terms and conditions were part of, or consubstantial with, the contract. The proposed amendments are: '7. On or about 21 September 2012, the Cross-Claimant provided a quotation to the First Cross-Defendant for the carriage of the Consignment from Port Headland [sic] wharf to a designated lay down area within the secured grounds of the Port Hedland Port Authority, followed by road carriage from the designated lay down area to the BHP Finucane Island Site ("the Mammoet Quotation"). Particulars (a) Written quotation provided to the First Cross-Defendant via email on or about 21 September 2012. (b) The email referred to in paragraph 7(a) above attached a copy of the Cross-Claimant's Quotation number MM-AU/QUOTE-0141 and a copy of the Cross-Claimant's Standard Terms and Condition (2010). (c) The email referred to in paragraph 7(a) above contained a notice that "Our Standard Terms and Conditions (2010) apply to all our offers, agreements and any commitments arising therefrom." (collectively referred to as the "Cross-Claimant's quotation") 8. The Cross-Claimant's qQuotation stated that it was subject to the Cross-Claimant's Terms and Conditions, and contained a copy of the Cross-Claimant's Standard Terms and Conditions (2010). Particulars (a) Page 1 of the Cross-Claimant's written qQuotation number MM-AU/QUOTE-0141 dated 21 September 2012. (b) The email sent to the First Cross-Defendant on or about 21 September 2012 attached a copy of the Cross-Claimant's quotation number MM-AU/QUOTE-0141 and a copy of the Cross-Claimant's Standard Terms and Condition (2010). 8A. On or about 22 November 2012 or 23 November 2012, the First Cross-Defendant accepted the Cross-Claimant's quotation. The Cross-Claimant relies upon the terms of the Cross-Claimant's quotation in full as if repeated and fully set out in this Statement of Claim. 9. On or about 11 January 2013, the First Cross-Defendant accepted, or confirmed its acceptanceed of, the Cross-Claimant's quotationMammoet Quotation ("the Agreement"). Particulars The Cross-Claimant's qQuotation was signed and accepted in writing by Simon Duke on behalf of the First Cross-Defendant. 9A. The agreement as alleged in paragraphs 8A and/or 9 above ("the Agreement") was made in Australia. Particulars (a) The Cross-Claimant's quotation was sent via email from the Cross-Claimant to the First Cross-Defendant in Western Australia. (b) On or about 22 November 2012 or 23 November 2012, the First Cross-Defendant verbally accepted the Cross-Claimant's quotation in Western Australia. (c) On or about 11 January 2013, the First Cross Defendant's acceptance, or confirmation of acceptance, of the Cross-Claimant's quotation was sent via email from the First Cross-Defendant to the Cross-Claimant in Western Australia.' 19 Trans Global opposes the amendments. It says that Mammoet has already admitted that the standard terms and conditions are a separate document to the agreement. It sees the alleged oral acceptance as an attempt to get the standard terms and conditions in as part of the contract. 20 I do not accept this contention. Mammoet's original cross-claim does no more than allege in paragraph 7 an offer and in paragraph 9, an acceptance. Particulars are provided of the offer: it consisted of an email, a quotation and the standard terms and conditions. There is no substance in the contention that this allegation made any statement about whether the terms and conditions document was part of the contract. It did not say such a thing and had no need to say such a thing in the time before Art 8:1102 had first been raised by Trans Global. 21 Nor do I accept that the expert evidence has been prepared on any such basis. There is nothing about this in the statement of agreed facts and it is clear that the expert evidence is easily able to deal with the current point. 22 The suggested reasons for refusing leave are therefore rejected. I would note for completeness that Trans Global did not suggest that it could not meet the allegation in time for the trial. 23 I grant leave to Mammoet to amend its defence and statement of cross-claim in the forms proposed. 24 I will order Mammoet to pay ThyssenKrupp's and Trans Global's costs thrown away by reason of the amendments. However, I will order Trans Global to pay Mammoet's costs of the amendment application. In my opinion, Trans Global's resistance to the grant of leave was misconceived. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 7 August 2014