Goodman v Cospak [2004] NSWSC 704

New South Wales Supreme Court

CITATION : Goodman v Cospak [2004] NSWSC 704 HEARING DATE(S) : 12, 13, 14 July 2004 JUDGMENT DATE : 6 August 2004

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 110

CATCHWORDS : [CONTRACT] - OFFER AND ACCEPTANCE - Twelve month contract for the supply of glass bottles by the defendant for use in the plaintiff's salad dressing filling line - breakages of bottles on line - 'battle of the forms' - whether contract contained implied terms as to merchantable quality and fitness for purpose - application of 'global' over 'last shot' approach - whether two forms inconsistent - IMPLIED TERMS - Implication of terms from trade usage and custom - whether parties under an implied obligation to cooperate in implementation of bottles onto filling line - EXCLUSION CLAUSES - Whether exclusion of all liability "imposed by law" sufficient to exclude liability in negligence - consideration of the status in Australia of the rules in Canada Steamship Lines Ltd v R [1952] AC 192. - [NEGLIGENCE] - Claims that defendant owed concurrent duties in contract and negligence - circumstances in which a duty of care in negligence can arise between two large commercial entities in detailed contractual relations. - [TRADE PRACTICES] - Misleading and deceptive conduct said to arise by defendant's failure to inform plaintiff of alleged defects in bottles - circumstances in which silence may constitute misleading and deceptive conduct. - [DAMAGES] - Whether defendant entitled to damages for 'loss of a chance'. PARTIES : Goodman Fielder Consumer Foods Ltd formerly known as Meadow Lea Foods Limited v Cospak International Pty Ltd FILE NUMBER(S) : SC 50139/2001 COUNSEL : M.T. McCulloch for plaintiff M.A. Pembroke SC and A. Ivantsoff for defendant SOLICITORS : Hunt & Hunt for the plaintiff Wight & Strickland for the defendant