TMA Australia Pty Limited v 100% Bottling Company Pty Ltd [2024] NSWCA 80

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: TMA Australia Pty Limited v 100% Bottling Company Pty Ltd [2024] NSWCA 80 Hearing dates: 27 March 2024 Date of orders: 17 April 2024 Decision date: 17 April 2024 Before: Bell CJ at [1]; Leeming JA at [2]; Basten AJA at [3] Decision: 1 Dismiss the appeal. 2 Order the appellant to pay the respondent's costs of the appeal. Catchwords: APPEAL – finding that appellant's main witness unreliable – whether evidence as to business practice affected – reliance on commerciality – inferences drawn from circumstances and context – failure of trial judge to be satisfied of case for party bearing onus of proof – absence of basis to reject findings of fact CONTRACTS – formation – contract alleged to have been formed by exchange of emails – respondent disputed the existence of the two emails – no electronic record of emails – only explanation of absence from respondent's server was deletion prior to migration to cloud in 2017 – deletion not relied on by appellant – hardcopy of emails relied on by appellant – irregularities between disputed emails and undisputed emails – belated discovery implausible Category: Principal judgment Parties: TMA Australia Pty Limited (ACN 114 874 690) (Appellant) 100% Botting Company Pty Ltd (ACN 124 843 367) (Respondent) Representation: Counsel: J Sexton SC (Appellant) N Kidd SC / E Ball (Respondent)

Solicitors: K & L Gates (Appellant) Russell Kennedy Lawyers (Respondent) File Number(s): 2023/00234945 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2023] NSWDC 231 Date of Decision: 28 June 2023 Before: Newlinds DCJ File Number(s): 202100291978