New South Wales Supreme Court CITATION : Allied Express Transport Pty Ltd v BAX Global (Aust) Pty Ltd (No 3) [2006] NSWSC 1319 HEARING DATE(S) : 27/11/06 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 11/27/2006 DECISION : Application to re-open refused. Plaintiff entitled to costs of the claim and ordered to pay one third of the costs of the cross-claim. CATCHWORDS : DAMAGES - General Principles - Quantum of cross-claim - Whether cross-claimant entitled to rely on portions of files not admitted in evidence - Whether case should be re-opened after principal reasons for judgment published - PROCEDURE - Costs - Equitable set-off pleaded in defence - Cross-claim for damages for breach of contract - Whether proceedings as a whole the event for the purpose of the principle that costs follow the event LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Allied Express Transport Pty Ltd v BAX Global (Aust) Pty Ltd (No 2) [2006] NSWSC 1180 McDonald & East Ltd v McGregor (1936) 56 CLR 50 CASES CITED : Eden Productions Pty Ltd v Southern Star Group (No 3) [2003] NSWSC 534 Amon v Bobbett (1889) 22 QBD 543 Waters v PC Henderson (Australia) Ltd, unreported, NSWCA, 6 July 1994 PARTIES : Allied Express Transport Pty Ltd - Plaintiff/Cross-Defendant BAX Global (Aust) Pty Ltd - Defendant/Cross-Claimant FILE NUMBER(S) : SC 50001/06 COUNSEL : Mr R Harper SC Plaintiff Mr J Lockhart - Defendant SOLICITORS : Hasset Dixon Solicitors and Attorneys - Plaintiff/Cross-Defendant Allens Arthur Robinson Solicitors - Defendant/Cross-Claimant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST GZELL J MONDAY 27 NOVEMBER 2006 50001/06 ALLIED EXPRESS TRANSPORT PTY LTD v BAX GOLBAL (AUST) PTY LTD (No 3) EX TEMPORE JUDGMENT 1 My principal reasons for judgment in this matter are set out in Allied Express Transport Pty Ltd v BAX Global (Aust) Pty Ltd (No 2) [2006] NSWSC 1180. These reasons should be read in conjunction with them. 2 There are three issues in relation to the quantum of the cross-claim that remain in issue. It is agreed between the parties that BAX is entitled to $41,786.00 for Samsung deliveries and $41,122. 66 for Dell deliveries. 3 The first of the three areas of the dispute relates to a situation in which there exists a signed manifest but no WMS allocation form. I indicated in a negative way that delivery to Allied is to be inferred from a signed manifest in my principal reasons at [152] to [155]. BAX is, in my view, entitled to damages even if there be no WMS allocation form. The amount in respect of that area of dispute is agreed in the sum of $33,116.37. 4 The second area of dispute is where BAX's evidence indicates the receipt of a COD. I held that if there is evidence that BAX received a COD, it is not entitled to damages (see [164] of my principal reasons). If there is no COD and no other evidence of delivery to a consignee, BAX is entitled to damages up to the cap. But there was other evidence as indicated in Mr Richardson's first affidavit at [10] where he said: "Where our records show we have a POD, DFN or some documentary record providing an explanation of what happened to these consignments, I have made a separate Category 5 and marked same in purple". Hence, in my view, the claim by BAX under this heading fails. The amount involved is agreed at $37,294.19. 5 The final area of disputation is in respect of individual Dell deliveries that I ordered be set out in a Scott schedule with a brief explanation of each claim and defence. The documents that are relied upon by BAX with respect to those Dell deliveries were documents to which the Court was not taken to justify these claims. That in my view amounts to an attempt to re-open the case. I reject that application. The parties were warned on a number of occasions during the proceedings that the evidence in the lever arch files was limited to the pages to which reference was made by counsel or witness. See principal reasons at [118]. It is too late to seek to refer to additional pages at this late juncture. There must be an end to this litigation. The claim by BAX fails. The amount involved was agreed at $13,131.61. 6 The result is that BAX is entitled to the $41,786.00 for Samsung deliveries, $41,122.66 for Dell deliveries, and for signed manifests there is a further $33,116.37 giving a total of $116,025.03. Allied should have judgment entered in its favour for $439,187.44 less that sum of $116,025.03, a net amount of $323,162.41. 7 So far as costs are concerned, I set to one side the application by BAX for a special costs order because Allied has done better than the BAX Calderbank offers. 8 Allied submitted that the usual rule that claim and cross-claim are separate events for the purposes of the principle that costs follow the event under the Uniform Civil Procedure Rules 2005, r 42.1 (McDonald & East Ltd v McGregor (1936) 56 CLR 50 at 62), does not apply when set-off is pleaded and the proceedings are conducted on the basis that the defence to the claim is set-off. In those circumstances, it was submitted, the proceedings as a whole should be treated as the event. 9 Reference was made to what I said in Eden Productions Pty Ltd v Southern Star Group (No 3) [2003] NSWSC 534 at [13]. But there I had ordered that cross-claim amounts be brought to account in calculating annual amounts of net profit for the purposes of the claim. 10 In Amon v Bobbett (1889) 22 QBD 543 at 547-548, Bowen LJ said that if a counterclaim was to be treated as having no vitality except as a bar to the action, it becomes a defence and not a counterclaim. That is not the position here, in my view. 11 I propose to follow the usual course of treating the claim and cross-claim as separate events. 12 There is in this case no dominant or separable issue that would warrant costs of issues to be awarded (Waters v PC Henderson (Australia) Ltd, unreported, NSWCA, 6 July 1994, Eden at [32] to [35]). 13 Allied is entitled to the costs of the claim. Bax has been partially successful on its cross-claim. It claimed $776,800.78 for Samsung deliveries and $95,494.44 in respect of Dell deliveries under the contractual arrangements as I found them to be. It has succeeded only to the extent of $116,025.03. 14 The costs to which BAX is entitled are not to be calculated as a mathematical proportion of the amount it has succeeded in obtaining against the amount it claimed. But the extent of its failure is a relevant consideration. 15 In my view, the appropriate order is for Allied to pay one third of BAX's costs of the cross-claim. I direct the parties to bring in short minutes of orders reflecting these reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.