MANILDRA FLOUR MILLS MANUFACTURING PTY LTD v BELTAVIA PTY LTD [1989] NSWCA 137

MANILDRA FLOUR MILLS MANUFACTURING PTY LTD v BELTAVIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA, and Hope AJA 11 April 1989, 14 December 1989

[1989] NSWCA 137

Priestley and Meagher JJA and Hope AJA This case concerned an agreement under theterms of which Beltavia Pty Ltd, the plaintiff below and the respondent in this Court, was to mill the wheat of Manildra Flour Mills Pty Ltd, the defendant below and the appellant in this Court. The plaintiff was to charge the defendant for the flour produced and the defendant was to charge the plaintiff for the wheat it delivered. The plaintiff brought these proceedings to recover alleged overpayments made by it for the defendant's wheat. A question arose as to whether, on the contract between the parties, it was obliged to pay for the wheat actually delivered (as the plaintiff alleged) or for wheat deemed to have been delivered (as the defendant alleged). Rogers J found for the plaintiff on this issue, but this Court came to the opposite conclusion, accepting the defendant's contention. Meagher JA's reasons, with which the other members of the Court agreed, were published on 31 May 1989.

However, the Court did not know to what final orders (if any) the defendant's success entitled it. This situation arose because of the exiguity of the evidence, which Meagher JA described, because we were unclear exactly what issues his Honour had decided and because the pleadings, if they may be so termed, raised matters which did not readily seem to be decided by a resolution of the construction question. The question now raised by the unsuccessful plaintiff is best understood by referring to its amended summons. Paras | to 4 of this document read as follows:

"1. It was agreed orally and in writing in about May 1984 that the Defendant deliver to the Plaintiff's flour mill at Dubbo, quantities of wheat which would then be milled into flour at the Plaintiff's flour mill at Dubbo and then delivered by the Plaintiff to the Defendant at Auburn at a price agreed on between the parties.