BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWCA 285

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWCA 285 Hearing dates: On the papers Decision date: 30 August 2013 Before: Macfarlan JA at [1]; Hoeben JA at [2]; Ward JA at [3] Decision: 1. The separate question removed to this Court for determination by order of Stevenson J, made by consent on 22 August 2013, be answered as follows: "The question of the discount for contingencies to be applied to: (a) the core business; and (b) the Nestlé, Safcol and Doane dealings in the period to 20 June 2008 does not fall within the scope of the remitter ordered on 24 April 2013, as varied on 19 July 2013; the intent of that remitter being to leave the damages award for loss of profit in relation to those dealings (having regard to the discount recommended by the referee) undisturbed. The Court notes that this has the effect that the discount for contingencies to be applied to the loss of profit claims for (a) and (b) above is as the referee recommended (40%)." 2. The proceeding be remitted to the Equity Division for the determination of the remaining questions in the proceeding, in accordance with the 24 April 2013 order, as varied on 19 July 2013, and answer 1 above. 3. The plaintiffs pay the defendants' costs of the separate determination of the question answered in 1 above. [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: APPEAL AND NEW TRIAL - separate question for determination as to scope of remitter - removed to Court of Appeal for determination pursuant to UCPR, r 1.21 Cases Cited: BestCare Foods Ltd & Anor v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd & Anor [2012] NSWSC 574, [2012] NSWSC 670 Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90 Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 229 Category: Separate question Parties: BestCare Foods Ltd (First Plaintiff) BestCare Foods (Sales) Pty Ltd (Second Plaintiff) Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd (First Defendant) Origin Energy Retail Ltd (Second Defendant) Representation: Counsel: ML Williams SC with SA Lawrance (Plaintiffs) NC Hutley SC with EG Romaniuk, RD Glover (Defendants) Solicitors: McCabe Terrill (Plaintiffs) Hunt & Hunt (Defendants) File Number(s): CA 2013/259986