Regal Pearl Pty Limited v Stewart & Ors [2002] NSWCA 291

New South Wales Court of Appeal

CITATION : Regal Pearl Pty Limited v Stewart & Ors [2002] NSWCA 291 FILE NUMBER(S) : CA 40421/01; 40422/01; 4023/01; 40424/01; 40425/01 HEARING DATE(S) : 3 June 2002 JUDGMENT DATE : 15 November 2002

Regal Pearl Pty Limited (Appellant) Jane Ralston Stewart (First Respondent) Great Ocean Products Pty Limited (Second Respondent) Tai Kwan Seafood Pty Limited (Third Respondent) PARTIES : and four other appeals (40421/01; 40423/01; 40424/01; 40425/01): To Hung (First Respondent) Eugenia Rozenberg (First Respondent) Eva Agnes Markham (First Respondent) Shen Ping Chen (First Respondent) JUDGMENT OF : Sheller JA at 1; Stein JA at 2; Hodgson JA at 109

LOWER COURT JURISDICTION : District Court DC 1785/99 LOWER COURT DC 2943/99 FILE NUMBER(S) : DC 4742/99 DC 9013/99 DC 261/00 LOWER COURT Woods ADCJ JUDICIAL OFFICER :

J Hislop QC/R Cavanagh (Appellant) COUNSEL : No appearance (First Respondents) P Deakin QC/J Turnbull (Second Respondent) G Drake (Third Respondent) Holman Webb (Appellant) (CA 40422/01) SOLICITORS : McLaughlin & Riordan (First Respondents) McCabes (Second Respondent) Lum Mow & Associates (Third Respondent) CATCHWORDS : NEGLIGENCE - patrons contracted hepatitis A virus after eating prawns at restaurant - causation - contaminated - whether the prawns were adequately cooked - failure to warn - duty of care - foreseeability - - TRADE PRACTICES - SALE OF GOODS - fitness for purpose - merchantability - whether appellant entitled to be indemnified by the wholesaler - breach of contract - whether prawns were of merchantable quality and not fit for the purpose for which they were required - D LEGISLATION CITED : Sale of Goods Act 1923, s 19 Trade Practices Act (Cth), s 74B, s 74D, s 75AK(1) Blair v Curran (1939) 62 CLR 464 Coulton v Holcombe (1986) 162 CLR 1 CASES CITED: Heil v Hedges [1951] 1 TLR 512 Rogers v The Queen (1994) 181 CLR 251 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Yachetti v John Duff & Sons Ltd (1943) 1 DLR 194 DECISION : 1) The appeal by the appellant against the importer (the second respondent) is dismissed with costs; 2) The appeal by the appellant against the wholesaler (the third respondent) is allowed; 3) The wholesaler is to pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act if otherwise entitled; 4) The verdict in favour of the wholesaler (third respondent) as against the appellant on the cross-claim be set aside and, in lieu thereof, the appellant's cross-claim against the third respondent be upheld and the third respondent ordered to indemnify the appellant in respect of the appellant's liabilty to the plaintiff in each case; 5) Liberty to apply on the costs of the trial on giving 7 days notice in writing.