K J Siely Pty Ltd v Hanson Construction Materials Pty Ltd [2008] NSWDC 117

New South Wales District Court

CITATION: K J Siely Pty Ltd v Hanson Construction Materials Pty Ltd [2008] NSWDC 117

HEARING DATE(S): 14/4/08 - 16/4/08 and 23/6/08

JUDGMENT DATE: 8 July 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See Judgment para 79.

CATCHWORDS: Cartage Contract - Consideration of whether there was serious misconduct giving rise to breach, unlawful termination, assessment of damages where there is a contractual right to terminate anyway.

CASES CITED: Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64

PARTIES: K J Siely Pty Ltd (Plaintiff) Hanson Construction Materials Pty Ltd (Defendant)

FILE NUMBER(S): 2583/07

COUNSEL: JJE Fernon SC with T J Boyd (for the Plaintiff) J Murphy with Y Shariff (for the Defendant)

JUDGMENT

1 The plaintiff was an independent operator which owned and operated a concrete truck. On 28 April 2005 the plaintiff entered into a contract in the form of a deed of that date under which the defendant granted the plaintiff a cartage contract for a term commencing on 1 May 2005 until 31 October 2014 (the "Contract").

2 The terms and conditions of the Contract incorporated the terms and conditions applying to all contract carriers carting concrete for the defendant in New South Wales in accordance with a contract determination ("Determination") made between the defendant and the Transport Workers' Union of New South Wales. The Determination was registered and approved by the Industrial Relations Commission of New South Wales. The terms and conditions of the Determination are Annexure RF 3 to the affidavit of Russell Farr sworn 18 February 2008 (exhibit 1). It applied to the defendant's fleet of about 167 lorry owner/drivers ("LODs") across New South Wales.