Par Recycling Services Pty Ltd v United Resource Management Pty Ltd [2022] NSWSC 1269

Supreme Court New South Wales

Medium Neutral Citation: Par Recycling Services Pty Ltd v United Resource Management Pty Ltd [2022] NSWSC 1269 Hearing dates: 5 – 9 September 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: Orders must be made in favour of Par. The parties should confer and file proposed orders, including as to costs, within 14 days. In the event that they need to be heard they should approach and also file and serve a short outline of submissions. Catchwords: CONTRACTS — Termination — where termination of one contract results in termination of another — common mistake that contract remains on foot. CONTRACTS — Implied contract — where parties to and term of resulting implied contract in issue — whether failure to make payments due under implied contract — where parties enter a further contract — parties to and terms of further contract in issue — whether failure to make payments due under further contract — whether loss or damage suffered as result of mistake — unjust enrichment. CONSUMER LAW — Misleading or deceptive conduct — Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18 — whether misleading or deceptive conduct induced error as to continuation of terminated contract — whether parties became bound by implied agreement as the result of misleading or deceptive conduct — whether further contract entered because of misleading or deceptive conduct — silence —whether loss or damage suffered as the result of misleading or deceptive conduct. EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Evidence Act 1995 (NSW), s 79 — where witness' necessary specialised knowledge based on experience in industry in issue — whether opinions substantially based on witness' experience in issue — where facts and assumptions upon which opinion based are undisclosed — where reasoning process is undisclosed — evidence inadmissible as expert opinion evidence. EVIDENCE — Credibility and reliability evidence —conflicting evidence — whether Jones v Dunkel inferences arise to be drawn from failure to call other available witnesses — failure results in drawing of Jones v Dunkel inferences. Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 236 Corporations Act 2001 (Cth), s 129 Evidence Act 1995 (NSW), ss 76, 79 Material Recovery Facility Processing Refund Protocol 2017 Waste Avoidance and Resource Recovery Act 2001 (NSW), ss 19, 28 Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (NSW), reg 18 Cases Cited: ASIC v Rich [2005] NSWCA 152 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Butt v McDonald (1896) 7 QLJ 68 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Crawford Fittings Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321 Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kriketos v Livschitz [2009] NSWCA 96 Kyrwood v Drinkwater [2000] NSWCA 126 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 Mount Bruce Mining Pty Ltd v Wright Prospecting Ltd (2015) 256 CLR 104; [2015] HCA 37 Newey v Westpac Banking Corporation [2014] NSWCA 319 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Svanosio v McNamara (1956) 96 CLR 186; [1956] HCA 55 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Par Recycling Services Pty Ltd (Plaintiff) United Resource Management Pty Ltd (First Defendant) Anthony Charles Johnston (Second Defendant) Representation: Counsel: Mr J Gooley (Plaintiff) Mr R Higgins (Plaintiff) Mr J McLeod (First Defendant)