Bev Pak -v- Caines Packaging [2001] NSWSC 397

New South Wales Supreme Court

CITATION : Bev Pak -v- Caines Packaging [2001] NSWSC 397 CURRENT JURISDICTION: 50003/01 FILE NUMBER(S) : SC 50003/01 HEARING DATE(S) : 11.5.01 JUDGMENT DATE : 17 May 2001

PARTIES : Bev Pak Australia Pty Ltd -v- Caines Packaging Pty Ltd JUDGMENT OF : Hunter J

COUNSEL : Applicant: L J W Aitken Respondent: R J Weber SOLICITORS : Applicant: Abbott Tout Respondent: I E Duffield Solicitor CATCHWORDS : Pratice & Procedure - application to stike out contentions - Pt 13 r5 and Pt 15 r 26 - onus of proof in reliance damages. LEGISLATION CITED : Sale of Goods Act 1923 Trade Practices Act 1974 CASES CITED : The Commonwealth of Australia -v- Amann Aviation Pty Ltd (1991) 174 CLR 64 DECISION : Application dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J THURSDAY 17 MAY 2001

50003/01 BEV PAK AUSTRALIA PTY LTD V CAINES PACKAGING PTY LTD REASONS FOR JUDGMENT 1 This is an application by notice of motion dated 19 March 2001 to strike out contentions 12(a)(i), (ii) and 12(b) of the plaintiff's contentions "as disclosing no cause of action or otherwise being embarrassing or prejudicial pursuant to Part 13 Rule 5 and Part 15 Rule 26 of the Supreme Court Rules." 2 The subject contentions are as follows: "C12. As a result of the said breaches of the agreement by the defendant, the plaintiff has suffered loss and damage reasonably within the contemplation of the parties at the time of the agreement. Particulars (a) In reliance on the defendant's promises set out at paragraphs C5 to C7 above, the plaintiff incurred the following loss, expense and damage: (i) The plaintiff suffered losses from sales made to supermarkets pursuant to the loss leading three litre cordial promotion. In the period 1 January 2000 to 30 June 2000 the plaintiff sold 290,838 cartons of cordial in three litre bottles to supermarkets at a loss of one dollar and twenty four cents ($1.24 per carton). 290,838 x $1.24 = $360,639 (ii) The plaintiff further incurred various expenses which were wasted due to the failure of the defendant to supply two litre and three litre bottles due to which the plaintiff ceased sales- Label proofs - 17 @ $71 each - $1,207.00 Label plates - 85 @ $155 each - $13,175.00 Cutting die - 1 @ $1,000 each- $1,000.00 Carton stereos - 2 @ $450 each - $900.00 Carton die - 1 @ $1,000 each - $1,000.00 Starwheels - 2 @$5,000 each - $10,000.00 Total $27,282.00 Front labels 322,908 @$25.43 per 1000 $8,211.55 Back labels 322,908 @$10.92 per 1000 $3,526.16 Excess cartons 13,000 @ $325 per 1,000 $4,225.00 Total $15,962.71