NSW Caselaw
New South Wales Supreme Court
CITATION : Huntsman v Qenos & Anor [2005] NSWSC 494
HEARING DATE(S) : 2, 3, 4 and 5 May 2005
JUDGMENT DATE : 3 June 2005
JURISDICTION : Commercial List
JUDGMENT OF : McDougall J at 1
DECISION : See paras [154] and [155] of judgment
CATCHWORDS : CONTRACT - where contract between parties set price by reference to pricing index - where index claimed to reflect the US Gulf Coast contract price for ethylene - where methodology by which index derived changes - whether change in methodology changed the index - whether any change in methodology changed the index in a material way - whether the index ceased to reflect the US Gulf Coast contract price for ethylene - no question of principle - EXPERT EVIDENCE - where court expert appointed - where opinions of court expert conflict with opinions of other experts - whether Court should prefer views of court expert
Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Minnesota Mining and Manufacturing Company v Beiersdorf (Australia ) Ltd (1980) 144 CLR 253 Non-Drip Measure Co Ltd v Strangers Ltd (1942) 59 RPC 1
Huntsman Corporation Australia Pty Ltd (Plaintiff) PARTIES : Qenos Pty Ltd (First Defendant) Olefines Pty Ltd (Second Defendant)
FILE NUMBER(S) : SC 50057/04
R J Weber SC/A Ivantsoff (Plaintiff) COUNSEL : J T Gleeson SC/R Francois (Defendants)
Minter Ellison (Plaintiff) SOLICITORS : Cornwall Stodart Melbourne (Defendants) - by its Sydney Agents, Hicksons
LOWER COURT JURISDICTION :
HUNTSMAN v QENOS & ANOR [2005] NSWSC 494
INDEX TO JUDGMENT
Para
The issues 2 The supply agreement 6 The novation deed 12 The Gulf Coast ethylene market 13 NTCP and average acquisition price 19 The change in the method for deriving the NTCP 27 Mr Eramo's evidence 33 Ms Hubbard's evidence 41 The other evidence 43 Conclusion 44 Did the change in methodology mean that the NTCP changed? 46 Mr Eramo's evidence 47 Other relevant circumstances 59 Ms Hubbard's evidence 64 Statement of opinion or statement of fact? 72 Conclusion 91 Was any change material? 93 The concept of materiality 94 Characterisation of the change 96 Effect of the change 97 Ms Hubbard's evidence 102 Mr McElliott's evidence 107 Other evidence of price correlations 112 Huntsman Australia's alleged failure to provide pricing data 114 Analysis 119 Conclusion 124 "No longer reflects the US Gulf Coast contract price for ethylene" 125 The US Gulf Coast contract price for ethylene 128 "Reflects" 139 Analysis 144 Conclusion 150 Postscript: a Browne v Dunne submission 151 Conclusion overall 154
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