Hunter Wholesale Confectioners Pty Limited (In Liquidation) v Sweeties Confectionery Pty Limited [2010] NSWSC 1257

New South Wales Supreme Court

CITATION : Hunter Wholesale Confectioners Pty Limited (In Liquidation) v Sweeties Confectionery Pty Limited [2010] NSWSC 1257

HEARING DATE(S) : 14 and 15 October 2010

JUDGMENT DATE : 3 November 2010

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer AJ

1. Order the defendant pay to the plaintiff the sum of $100,000 plus interest from 31 July 2008. 2. Order the defendant pay the costs of the plaintiff on the originating process DECISION : 3. Order the cross-defendants pay to the cross-claimant the sum of $55,000 plus interest from 24 April 2008. 4. Order the cross-defendants pay the cross-claimant's costs on the cross-claim. 5. The exhibits may be returned.

CATCHWORDS : CORPORATIONS - confectionery owned by defendant held at plaintiff's warehouse on terms returnable on demand but if sold by plaintiff replacement stock or money value would be provided. Stocks of parties mixed and not identifiable - demand for return made and not met but $100,000 paid on day before administrators appointed - whether payment an unfair preference - whether defendant knew plaintiff likely to be insolvent - whether objective test met. - BAILMENT - terms of bailment requiring goods to be identifiable and available for return - goods mixed and not returned - goods not mixed by accident - claim in conversion by owner. - TORTS - conversion - mixture of goods - measure of damages when share in mixed stock not ascertainable.

LEGISLATION CITED : Corporations Act 2001 (Cth)

CATEGORY : Principal judgment

CASES CITED : Reglon Pty Limited v Hill & Ors [2006] NSWSC 1360 Sandeman & Sons v Tyzack & Branfoot Steamship Co Ltd [1913] AC 680