Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries [2016] NSWCA 373

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries [2016] NSWCA 373 Hearing dates: 6 April 2016 Decision date: 21 December 2016 Before: McColl JA, Payne JA, Emmett AJA Decision: (1) Leave to file the respondent's Notice of Motion dated 14 April 2016 is refused. (2) Appeal allowed. (3) Respondent to pay the appellant's costs of the appeal as agreed or assessed. (4) Set aside the orders of Cogswell DCJ made on 31 July 2015 and in lieu thereof order: (a) Judgment for the defendant Boral. (b) Each party pay their own costs of the trial. Catchwords: CONTRACT – concrete purportedly supplied by appellant resulted in damage to respondent – existence of contract between appellant and respondent – whether respondent's contract was alternatively with different Boral company – importance of contemporaneous documentary evidence in determining contracting party identity – whether appellant could rely on defence where defence first raised at trial after close of evidence – where defence did not admit but did not deny critical issues in proceedings

PRACTICE AND PROCEDURE – whether leave should be granted to amend statement of claim to join the different Boral company as alternative defendant – where forensic decision made to not join alternative defendant at first instance

COSTS – whether appellant's conduct at first instance has consequences for costs of trial – importance of co-operation between the parties and a "cards on the table" approach to litigation Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), ss 56, 98, 100 Corporations Act 2001 (Cth)