Woolworths Ltd v APL Co Pte Ltd [2001] NSWSC 662

New South Wales Supreme Court

CITATION : Woolworths Ltd v APL Co Pte Ltd [2001] NSWSC 662 CURRENT JURISDICTION: Equity Dvision Commercial List FILE NUMBER(S) : SC 50152/99 HEARING DATE(S) : 23, 24 and 25 July 2001 JUDGMENT DATE : 7 August 2001

PARTIES : Woolworths Ltd (Plaintiff) APL Co Pte Limited t/as APL Lines (Australia) (Defendant) JUDGMENT OF : Bergin J

COUNSEL : Dr AS Bell (Plaintiff) GJ Nell/E Cox (Defendant) SOLICITORS : Michell Sillar (Plaintiff) Norton White (Defendant) CATCHWORDS : [NEGLIGENCE] - Australian Customs requirement for defendant to provide notice of arrival of goods and a description of the contents of container - Whether defendant owed a duty of care to the plaintiff in describing contents of container - whether the plaintiff's system contributed to the damage. [TRADE PRACTICES - DAMAGES] - Whether plaintiff relied upon misleading description - Whether damages should be apportioned. LEGISLATION CITED : Trade Practices Act, 1974 (Cth) CASES CITED : Argy & Anor v Blunts & Lane Cove Real Estate Pty Limited & Ors (1990) 26 FCR 112 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) 179 ALR 89 DECISION : See paragraph 81.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

DATE: TUESDAY 7 AUGUST 2001

50152/1999 - WOOLWORTHS LTD v APL CO PTE LTD t/AS APL LINES (AUSTRALIA)

JUDGMENT

1 In August 1998 a cargo of two containers of frozen cooked black tiger prawns set sail from Sydney on the vessel, the APL Emerald , bound for Thailand. The prawns were being returned by the plaintiff Woolworths Ltd to the original supplier in Bangkok. When the cargo reached Fremantle it was unloaded at Woolworths' direction and returned to Sydney on the vessel, the APL Ivory , arriving on 11 September 1998. After arrival in Sydney one of the containers of prawns was stored in Woolworths' agent's storage depot without refrigeration and the cargo suffered thaw damage. 2 The plaintiff claims that the defendant, APL Co Pte Ltd trading as APL Lines (Australia) (APL), as the carrier of the goods owed a duty of care to the plaintiff to provide the plaintiff's agent, Smith Bros Trade and Transport Terminal Pty Ltd (Smith Bros), with sufficient instructions to ensure the prawns were properly cared for after delivery to Smith Bros. It claims that APL breached that duty of care. Woolworths also makes a claim against APL pursuant to s 52 of the Trade Practices Act, 1974 (Cth) (TPA) . It claims that APL's inaccurate description of the goods was relied upon by Woolworths' agent, Smith Bros, and as a result the container was stored without power for refrigeration and the cargo was damaged. 3 This matter was heard on 23, 24 and 25 July 2001. Dr A.S. Bell, of counsel, appeared for the plaintiff and Mr G.J. Nell, of counsel, leading Mr E. Cox, of counsel, appeared for the defendant.