Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90 Hearing dates: 4-6 March 2013 Decision date: 24 April 2013 Before: Macfarlan JA at [1] Hoeben JA at [9] Ward JA at [10] Decision: 1 The appeal from the judgments of McDougall J of 31 May and 15 June 2012 is allowed. 2 Set aside orders 1 to 7 inclusive made by McDougall J on 15 June 2012. 3 Order that the referee's report of the Honourable JMN Rolfe QC published on 30 August 2011 be adopted save that: (a) Paragraphs 916, 934, 935 and 936 are rejected. (b) The referee's reasoning and conclusions are rejected insofar as they constitute, incorporate or reflect findings as to whether, and to what extent, the respondents would, or may, have supplied pet food to the entity known as IAMS (and indefinitely to one or more of Nestlé, Safcol or Doane) if the explosion had not occurred at the respondent's premises on 25 January 2003. 4 Remit the proceedings to the Equity Division for the determination of the damages to which the respondent is entitled and the making of orders (including as to costs) that the judge considers appropriate for disposal of the proceedings, on the basis that (subject to the tender of additional evidence as to matters of calculation and the tender of any further evidence that the judge considers is warranted on special grounds), the issues should be determined on the evidence taken before the referee, in accordance with rule 20.24(1)(d) of the Uniform Civil Procedure Rules. (Note that, as part of this remitter, the question whether there should be a modification of the interest award in order to take into account the reliance placed by BestCare on the IAMS 2 scenario should be a matter for the judge hearing the matter.) 5 Order the respondents to pay the appellant's costs of the quantum appeal. 6 Grant the respondents 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: EVIDENCE - findings of fact - appellate review - whether a finding of fact by a referee was based on no evidence or no more than a mere scintilla of evidence