BGL Operations Pty Ltd v Allied Express Transport Pty Ltd [2011] NSWCA 41

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: BGL Operations Pty Ltd v Allied Express Transport Pty Ltd [2011] NSWCA 41 Hearing dates: 4 February 2011 Decision date: 09 March 2011 Before: Giles JA at [1]; Campbell JA at [2]; Macfarlan JA at [4] Decision: (1) Appeal allowed; (2) Set aside orders (1) and (2) made at first instance on 19 March 2010; (3) Judgment for the appellant; (4) Order that the respondent pay the appellant's costs of the proceedings at first instance and on appeal; and (5) Direct that the respondent have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - sale of goods - whether vendor waived right to claim that purchaser breached purchase obligation - whether vendor had choice between two inconsistent courses of action - whether election by vendor

CONTRACT - sale of goods - concurrent and mutually dependent obligations - whether vendor's failure to communicate readiness and willingness to perform precluded claim for breach - whether vendor required to tender performance

DAMAGES - Sale of Goods Act 1923, s 52 - contract price and market price the same - whether vendor suffered loss - whether trial judge erroneously assessed damages