Chung v Kilpatrick Holdings (NSW) Pty Ltd ACN 167311435 [2025] NSWDC 14

District Court New South Wales

Medium Neutral Citation: Chung v Kilpatrick Holdings (NSW) Pty Ltd ACN 167311435 [2025] NSWDC 14 Hearing dates: 2 – 6 September 2024 Date of orders: 14 February 2025 Decision date: 14 February 2025 Jurisdiction: Civil Before: Cole DCJ Decision: See [289] – [292] Catchwords: CONTRACTS – Breach of contract – lease of premises – co-operation in export of scrap metal – allegations of breaches of lease and agreement – allegations of breach of duty as a bailee of goods Legislation Cited: Storage Liens Act 1935 (NSW) Cases Cited: Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (1978) 18 ALR 333 Category: Principal judgment Parties: Tung Hui Chung (First Plaintiff) THC Holding (NSW) Pty Ltd (Second Plaintiff) Kilpatrick Holdings (NSW) Pty Ltd (First Defendant) Paul Kilpatrick (Second Defendant) Kate Oliver (Third Defendant) Representation: Counsel: E Cox SC and C Street (Plaintiffs) N Kirby (Defendants) Solicitors: Norton Wilson Lawyers (Plaintiffs) Bartier Perry Lawyers (Defendants) File Number(s): 2022/150971 Publication restriction: Nil

JUDGMENT

Introduction 1. The plaintiff, Mr Tung Hui Chung ('Mr Chung'), owns a property at Port Kembla ('the Premises') which he leased to the first defendant, Kilpatrick Holdings (NSW) Pty Ltd ('KH P/L'). The term of the lease began on 1 July 2020 and ended on 30 June 2021 ('the lease'). The second defendant, Mr Paul Kilpatrick ('Mr Kilpatrick'), and the third defendant, Ms Kate Oliver ('Ms Oliver'), were guarantors for KH P/L under a term which was set out in the lease. At all relevant times, the Premises were used as a scrap metal yard. 2. Between May and October 2020, KH P/L and the second plaintiff, THC Holding (NSW) Pty Ltd ('THC'), entered into a verbal agreement regarding the storage, export and sale of scrap metal ('the Scrap Export Agreement'). Before the commencement of the lease, the parties had co-operated in relation to the export of scrap metal on the "Thorco Lanner". Within the term of the lease, a single further export consignment was arranged, which involved the loading and export of scrap metal on the "Stamina". 3. These proceedings concern disputes which have arisen between the parties with respect to the lease and the Scrap Export Agreement. The plaintiffs set out their claims in the Statement of Claim and the second defendant, KH P/L, has filed a Cross-Claim. 4. The lease ended on 30 June 2021 and KH P/L vacated the Premises. 5. The plaintiffs rely upon an affidavit of Mr Chung of 14 February 2023 and a further affidavit of Mr Chung dated 16 September 2023 (together with the exhibits to those affidavits) and Mr Chung gave oral evidence. Mr Bilal Omar, a property manager, Mr Matthew Clenton, a project manager and Mr Grant Kelleher, the principal of GCK Electrical also gave oral evidence in the plaintiffs' case. 6. The defendants rely upon affidavits of Mr Kilpatrick dated 5 May 2023, 24 May 2024 and 3 September 2024 (together with the exhibits and annexures to those affidavits). Mr Kilpatrick gave oral evidence. Mr Robbie Miners, the principal of Lylec Electrical Solutions also gave oral evidence in the defendants' case. 7. The plaintiffs bear the onus of proof in relation to the allegations in the Statement of Claim. The cross-claimant, KH P/L, bears the onus of proof in relation to the allegations in the Cross-Claim.