United Beverage Co-Packers Pty Ltd v Proclear International Pty Ltd; Proclear International Pty Ltd v United Beverage Co-Packers Pty Ltd (No 4) [2024] NSWSC 1455

Supreme Court New South Wales

Medium Neutral Citation: United Beverage Co-Packers Pty Ltd v Proclear International Pty Ltd; Proclear International Pty Ltd v United Beverage Co-Packers Pty Ltd (No 4) [2024] NSWSC 1455 Hearing dates: 16-19, 23-24 September, 9, 22-24 October 2024 Date of orders: 21 November 2024 Decision date: 18 November 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Proclear's claims fail; UBC entitled to judgment for unpaid invoices Catchwords: CONTRACTS – breach of contract – where agreement formed between plaintiff customer and defendant manufacturer for the manufacture of protein water beverages in accordance with identified specifications – whether defendant manufacturer overcharged plaintiff customer concerning identified ingredients – whether defendant manufacturer in breach of alleged certification agreement concerning supply to ALDI stores CONTRACTS – construction – interpretation – meaning of "clear protein beverage" – whether defendant manufacturer breached obligations of exclusivity by manufacturing for third parties "clear" protein water beverages CONTRACTS – implied terms – terms implied in fact – where 'mould' issue was found in the protein water beverages manufactured by the defendant manufacturer for the plaintiff customer – where cause of the 'mould' issue in dispute – whether 'mould' issue caused by environmental factors at the defendant manufacturer's factory or by reason of spores in ingredient supplied by plaintiff customer – whether an implied term of the agreement that the product would be suitable and safe for human consumption and free from contamination, regardless of whether mould caused by spores in ingredient supplied by plaintiff customer – whether implied term would be reasonable and equitable – whether defendant manufacturer otherwise breached express term concerning quality control procedures EQUITY – breach of confidence – necessary quality of confidence – material in public domain – whether defendant manufacturer breached obligations of confidence by manufacturing for and assisting third parties to make protein water beverages – whether an identified "formula" was confidential information – where each element in that "formula" was in the public domain – whether combination of those elements was nonetheless confidential – whether the "formula" was a "formula" for the purposes of the agreement Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Cases Cited: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220 Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 Chaina v The Presbyterian Church (NSW) Property Trust [2008] NSWSC 290 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; [1987] FCA 266 Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101; [1993] HCA 54 Dr Martens Australia Pty Ltd v Bata Shoe Co of Australia Ltd (1997) 75 FCR 230; [1997] FCA 505 Filby v TEG Live Pty Ltd [2023] NSWCA 320 Fraser v Thames Television Ltd [1984] QB 44; [1983] 2 WLR 917; [1983] 2 All ER 101 Hart v Macdonald (1910) 10 CLR 417; [1910] HCA 13 Hexiva Pty Ltd v Lederer [2006] NSWSC 318 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Talbot v General Television Corporation Pty Ltd [1980] VR 224 Texts Cited: Collins Dictionary, 5th Australian ed (2003) Concise English Oxford Dictionary, 4th ed (2004) J D Heydon, Heydon on Contract (2019, Thomson Reuters Lawbook Co) Macquarie Dictionary, 9th ed (2023) Macquarie Dictionary, online ed, accessed 13 November 2024 P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters Lawbook Co) The Oxford English Dictionary, 2nd ed, Vol VI (1989) Webster's New Twentieth Century Dictionary Unabridged, 2nd ed (1979) Category: Principal judgment Parties: Proceedings 2021/352878 United Beverage Co-Packers Pty Ltd (Plaintiff) Proclear International Pty Ltd (Defendant)