Budd & Ors v Kambah Tea Tree Plantations Pty Ltd & Ors [2001] NSWCA 180

New South Wales Court of Appeal

CITATION : Budd & Ors v Kambah Tea Tree Plantations Pty Ltd & Ors [2001] NSWCA 180 FILE NUMBER(S) : CA 40627/00 HEARING DATE(S) : 5 June 2001 JUDGMENT DATE : 20 June 2001

PARTIES : Dany Malcolm Budd, Yvonne Mary Budd, Palmer Milling Engineers Pty Ltd trading as Palmer Plantations and Wayne Palmer Pty Ltd (Appellants) Kambah Tea Tree Plantations Pty Ltd, Norma Holding and Keith Holding (Respondents) JUDGMENT OF : Heydon JA at 1; Davies AJA at 131; Rolfe AJA at 149

LOWER COURT JURISDICTION : District Court LOWER COURT DC 7323/98 FILE NUMBER(S) : LOWER COURT Susan J Gibb DCJ JUDICIAL OFFICER :

COUNSEL : P J McEwen SC/S A Benson (Appellants) M H Southwick (Respondents) SOLICITORS : Mackenzie & Vardanega (Appellants) Macquarie Lawyers (Respondents) CATCHWORDS : Contracts - Termination - Whether repudation wrongful - Quantum of damages - Practice and procedure - Bias - Fairness of trial - D CASES CITED: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Vakuata v Kelly (1989) 167 CLR 568 DECISION : See para 130

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40627/00 DC 7323/98

Wednesday, 20 June 2001

Danny Malcolm BUDD, Yvonne Mary BUDD, PALMER MILLING ENGINEERS PTY LTD trading as PALMER PLANTATIONS AND WAYNE PALMER PTY LTD v KAMBAH TEA TREE PLANTATIONS PTY LTD, Norma HOLDING and Keith HOLDING

Contracts - Termination - Whether repudiation wrongful - Breach - Quantum of damages.

Practice and procedure - Bias - Fairness of trial.

In March 1995 the first defendant, through the second defendant (both respondents to the appeal), contracted with the plaintiffs (the appellants) to procure 1.3 million tea tree seedlings and to sell them to the plaintiffs at 13 cents per seedling (the "First Supply Contract"). Pursuant to a "Second Supply Contract" made in July 1995 the first defendant, through the second defendant, agreed to procure and supply a further 2 million tea tree seedlings at 13 cents each. The plaintiffs would later contend that the defendants had told them that they (the defendants) would retain 2.5 cents per seedling out of the 13 cents price received from the plaintiffs, and would pay the seedling nursery supplier the balance of 10.5 cents. The defendants would later deny discussing with the plaintiffs any breakdown in the 13 cents per seedling price. By mid September 1995 the plaintiffs had paid the full price of the first contract and had paid $30,000 towards the Second Supply Contract.