Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express Australia Pty Limited [2010] NSWSC 704

New South Wales Supreme Court

CITATION : Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express Australia Pty Limited [2010] NSWSC 704

HEARING DATE(S) : 17 and 18 May 2010

JUDGMENT DATE : 2 July 2010

JUDGMENT OF : McLaughlin AsJ

1. Upon inquiry, I find that, consequent upon the usual undertaking as to damages given by the Plaintiff to the Defendant on 8 January 2007, the Defendant has sustained damages in an amount of $450,000. 2. I order that the Plaintiff pay to the Defendant the aforesaid damages of $450,000, together with interest thereon at Supreme Court rates from 8 January 2007 until payment. DECISION : 3. I order that the Plaintiff pay the costs of the Defendant of the aforesaid inquiry, and of the notice of motion filed by the Defendant on 15 April 2009. 4. I reserve to the parties liberty to apply within 14 days of the date hereof for any variation of order 3 herein, and for any correction of arithmetical calculations. 5. The exhibits may be returned.

CATCHWORDS : DAMAGES - inquiry consequent upon usual undertaking as to damages given by Plaintiff - undertaking by Defendant in terms equivalent to injunction - whether Defendant has suffered any loss consequent upon its undertaking - loss of opportuniy of Defendant to sell subject- matter of its undertaking - impecuniousity of Defendant - foreseeability of any alleged loss.

LEGISLATION CITED : Supreme Court Rules Uniform Civil Procedure Rules

CATEGORY : Separate question

CASES CITED : Air Express Limited v Ansett Transport Industries (Operations) Pty Limited (1981) 146 CLR 249 European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6