NSW Caselaw
New South Wales Court of Appeal CITATION : Tech Pacific Australia Pty Limited v Air Pacific Limited and Ors [1999] NSWCA 71 FILE NUMBER(S) : CA 40639/96 HEARING DATE(S) : 6 November 1998; 9 November 1998 JUDGMENT DATE : 30 March 1999
PARTIES : Tech Pacific Australia Pty Limited v Air Pacific Limited and Ors JUDGMENT OF : Meagher JA at 1; Sheller JA at 2; Stein JA at 3
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5252/95 LOWER COURT JUDICIAL OFFICER : Williams ADCJ
P.R. King (Appellant) COUNSEL : J.T. Gleeson (1st Respondent) G.J. Nell (2nd Respondent) S.M. Kettle (3rd Respondent) Witnell & Co. (Appellant) SOLICITORS : Ebsworth & Ebsworth (1st Respondent) Norton Smith & Co. (2nd Respondent) Phillips Fox (3rd Respondent) CATCHWORDS : Claim for damages for the loss of part of a consignment of computer parts shipped by air from the USA to Australia - place of loss - protection of exemption clauses contained in commercial agreements - disclaimer of liability for loss - Warsaw Convention - whether 'direct flights' and 'quality of service' representations were contractually enforceable or gave rise to a contravention for misleading or deceptive conduct under s 52 Trade Practices Act, 1974 (Cth) - negligence - whether third respondent, as a sub-contractor or agent of the second respondent, is entitled to escape or limit liabilty by relying on limitation clauses contained in the third respondent's general trading conditions or its own air waybill Civil Aviation (Carriers) Liability Act, 1959 (Cth) ACTS CITED : Warsaw Convention, Article 22 Trade Practices Act, 1974 (Cth); s 52 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED: Life Savers (Australasia) Ltd v Frigmobile Pty Ltd & Anor (1983) 1 NSWLR 431 Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] AC 576 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Midlands Silicones Pty Ltd v Scruttons [1962] AC 446 DECISION : Appeal and Cross-Appeal both dismissed; costs reserved
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