Megalift Pty Limited v Terminals Pty Limited [2009] NSWSC 324

New South Wales Supreme Court

CITATION : Megalift Pty Limited v Terminals Pty Limited [2009] NSWSC 324

HEARING DATE(S) : 2, 3, 4, 5 and 6 March 2009

JUDGMENT DATE : 29 April 2009

JUDGMENT OF : Bergin CJ in Eq

DECISION : Plaintiff entitled to recover $162,278 from defendant. Defendant entitled to recover $176,998 from plaintiff.

CATCHWORDS : [CONTRACT] - Whether parties entered into contract - Where offer referred to "estimates" - Responsibility for insurance of barge and assessment of shoreline - Competing claims for demurrage

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 CASES CITED : Croshaw v Pritchard and Renwick (1899) 16 TLR 45 Concut Pty Ltd v Worrell & Anor (2000) 176 ALR 693 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

PARTIES : Megalift Pty Limited Terminals Pty Limited

FILE NUMBER(S) : SC 5962 of 2006

COUNSEL : GE Underwood/RK Newton (Plaintiff) S Burchell (Defendant)

SOLICITORS : Hewitts Commercial Lawyers (Plaintiff) Mallesons Stephen Jaques (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ in Eq

29 APRIL 2009

5962/06 MEGALIFT PTY LIMITED v TERMINALS PTY LIMITED JUDGMENT

Introduction 1 The plaintiff, Megalift Pty Limited, specialises in the transportation of heavy materials and has been described in the proceedings as the heavy lift specialist in Australia. The defendant, Terminals Pty Limited, operates premises at Corio Bay near Geelong, in Victoria, at which it stores bulk liquids and gas. In 2005 the defendant commissioned the manufacture of a 270 tonne sphere in Thailand to enable it to store large quantities of butadiene. It was necessary to transport the sphere from Thailand to the defendant's premises in Corio Bay by sea. 2 The sphere was transported on the vessel MV BBC Frisia (the Frisia) which arrived in Port Melbourne in April 2006. Once the Frisia docked in Melbourne, it was necessary to lift the sphere off the ship onto a barge on which it was then transported across Corio Bay to the defendant's premises. It was then necessary to discharge the sphere from the barge and lift it onto the foundations that had been constructed at the defendant's premises. Unfortunately when the barge arrived at the defendant's premises it was not possible to discharge the sphere without excavating the defendant's land to enable a safe discharge from the barge onto the defendant's property. Although there was quite a deal of inconvenience, delay and cost incurred, the sphere was transported and placed onto the foundations without damage. The plaintiff claims that the defendant is indebted to it for the services that it provided including a claim for demurrage. The defendant claims that the plaintiff is indebted to it for various amounts, including for the excavation costs to facilitate the safe discharge of the sphere from the barge.