TMA Australia Pty Limited v 100% Bottling Company [2023] NSWDC 231

District Court New South Wales

Medium Neutral Citation: TMA Australia Pty Limited v 100% Bottling Company [2023] NSWDC 231 Hearing dates: 6, 7 (for directions), 20, 21, June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Civil Before: Newlinds DCJ Decision: Plaintiff's claim is dismissed. The plaintiff is to pay the defendant's costs of the proceedings, including the reserved costs of the adjournment of the hearing on 6 June 2023. Catchwords: Contract: Proof Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clarke v Flanagan (1934) 52 CLR 416 Guest v The Nominal Defendant [2006] NSWCA 77 Jackson v Lithgow Council [2008] NSWLR 312 Jones v Dunkel (1959)101 CLR 298 Neat Holdings v Karajan Holdings (1992) 110 ALR 449 Category: Principal judgment Parties: TMA Australia Pty Limited (Plaintiff) 100% Bottling Company Pty Ltd (Defendant) Representation: Counsel: Mr A Gandar (Plaintiff) Mr E Ball with Ms C Nguyen (Defendant)

Solicitors: Blackstone Waterhouse Lawyers (Plaintiff) Russell Kennedy Lawyers (Defendant) File Number(s): 2021/00291978 Publication restriction: None

JUDGMENT 1. HIS HONOUR: The plaintiff is a commercial printer. By Amended Statement of Claim filed 4 March 2022, the plaintiff claims against the defendant $179,890.40 together with interest and costs. 2. The claim is based in contract, said to have been formed following the acceptance by the plaintiff of an order placed by the defendant for a quantity of bottling labels. The plaintiff claims that the contract is recorded in an exchange of emails between the parties dated 23 November 2015 ("the email exchange"). 3. It is common ground that if the email exchange occurred on 23 November 2015 then the defendant is liable to the plaintiff in the amount claimed. This is because it is also common ground that earlier in November 2015 the parties agreed on the physical characteristics of the labels and a price per 1000 units which would be the price upon an order being placed.