Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64

New South Wales Court of Appeal

CITATION : Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64 FILE NUMBER(S) : CA 40048/00 HEARING DATE(S) : 11, 16 October 2000 JUDGMENT DATE : 3 April 2001

PARTIES : Upper Hunter Timbers Pty Ltd - Appellant Forestry Commission of New South Wales - Respondent JUDGMENT OF : Handley JA at 1; Stein JA at 25; Giles JA at 26

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 3609/97 FILE NUMBER(S) : LOWER COURT Bryson J JUDICIAL OFFICER :

COUNSEL : D J Hammerschlag & M Wright - Appellant L Aitken & N Beaumont - Respondent SOLICITORS : Deacons Graham & James - Appellant Crown Solicitors Office - Respondent CATCHWORDS : CONTRACT - implied term to take steps necessary to ensure plaintiff had benefit of agreement - previously found that defendant obliged to have environmental impact statement when it issued timber licences to plaintiff - whether contract empowered under Forestry Act - what breaches of contract proved - whether necessary for plaintiff to have applied for timber licences - whether further evidence should have been allowed - turns on facts. ND Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54; Butts v O'Dwyer (1952) 87 CLR 267; The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; Gray v Dalgety & Co Ltd (1916) 21 CLR 509; Heyman v Darwins Ltd [1942] AC 356; CASES CITED: Lambert v Lewis [1982] AC 225; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; Meehan v Jones (1982) 149 CLR 591; Robinson v Harman (1848) 1 Ex 850; 154 ER 363; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; Urban Transport Authority v Nweiser (1992) 28 NSWLR 471. DECISION : (By majority) (1) Appeal allowed; (2) Set aside the determination made by Bryson J on 17 December 1999 that the respondent was not to any extent in breach of the agreement made on 14 November 1988 during the period on and from 14 August 1991 to 31 December 1996, and in lieu thereof determine that the respondent was in breach of the agreement made on 14 November 1988 during the period on and from 14 August 1991 to 31 December 1996 to the extent that at the time it issued timber licence 18677 expressed to have effect from 1 January 1993 to 31 December 1993 it had not complied with Part 5 of the Environmental Planning and Assessment Act 1979 in respect of the logging operations thereby purportedly permitted as required by s 6 of the Timber Industry (Interim Protection) Act 1992; (3) Set aside the judgment for the respondent with costs ordered by Bryson J on 17 December 1999; (4) Remit the proceedings to the Equity Division for determination of the amount of damages, if any, to which the appellant is entitled by reason of the breach as determined; (5) Make no order as to the costs of the appeal; (6) Order that the past costs of the proceedings in the Equity Division be disposed of as ordered by the judge determining the appellant's damages.