FERMENTATION INDUSTRIES (AUST) PTY LTD & ANOR v BURNS PHILP & CO LTD [2000] NSWCA 71

New South Wales Court of Appeal

CITATION : FERMENTATION INDUSTRIES (AUST) PTY LTD & ANOR v BURNS PHILP & CO LTD [2000] NSWCA 71 FILE NUMBER(S) : CA 40145/98 HEARING DATE(S) : 23 March 2000, 24 March 2000 JUDGMENT DATE : 19 May 2000

PARTIES : Fermentation Industries (Aust) Pty Ltd and Fermentation Enterprises Pty Ltd - Appellants Burns Philp & Co Ltd - Respondent JUDGMENT OF : Priestley JA at 1; Sheller JA at 4; Beazley JA at 85

LOWER COURT JURISDICTION : Supreme Court Commercial Division LOWER COURT 50210/97 FILE NUMBER(S) : LOWER COURT Rolfe J JUDICIAL OFFICER :

COUNSEL : J C Campbell QC/F Kunc - Appellant J S Hilton SC/P Durack SOLICITORS : Dunhill Madden Butler - Appellants Clayton Utz - Respondent CATCHWORDS : CONTRACTS - Construction and interpretation of contract - Dispute determined by expert - Review of expert's decision - Meaning of 'price' - ND LEGISLATION CITED : Supreme Court Act 1970 Sales Tax Assessment Act (No 1) 1930 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Colgate-Palmolive Pty Ltd v Federal Commission of Taxation (1999) 41 ATR 357 Commonwealth Quarries (Footscray) Pty Ltd v Federal Commissioner of Taxation (1938) 59 CLR 111 CASES CITED: Holt v Cox (1997) 23 ACSR 590 Hooker Investments Pty Limited v Baring Bros Halkerston & Partners Securities Limited (1986) 5 NSWLR 156 Johnston Fear & Kingham and The Offset Printing Co Pty Limited v The Commonwealth (1943) 67 CLR 314 Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 Queensland Independent Wholesalers Ltd v Commissioner of Taxation (1991) 29 FCR 312 DECISION : 1. Appeal allowed; 2. Order that the orders of Rolfe J made on 12 February 1998 and 1 May 1998 be set aside; 3. In lieu thereof, declare that; (a) The appointed expert, Warwick Finney, is entitled to determine whether an adjustment is required in the selling price between the respondent and the first and/or second appellant, pursuant to the supply agreement, to recognise and take into account the benefits received by other customers of the respondent pursuant to the provision by the respondent, to other customers of capital equipment; (b) The appointed expert, Warwick Finney, is entitled to determine whether an adjustment is required in the selling price between the respondent and the first and/or second appellant, pursuant to the supply agreement, to take into account the inclusion of delivery costs to other customers in the respondent's Current Large User Price; (c) The respondent is obliged to provide to the first and/or second appellant details of the Current Large User Price; 4. The respondent to pay the appellants' costs of the proceedings before Rolfe J and of this appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified.