Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited [2017] NSWDC 279

District Court New South Wales

Medium Neutral Citation: Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited [2017] NSWDC 279 Hearing dates: 4, 5, 6, 7, and 8 June 2017;10 and 28 July 2017 Date of orders: 16 October 2017 Decision date: 16 October 2017 Jurisdiction: Civil Before: Judge D. Russell Decision: 1. Judgment for the plaintiff against the defendant in damages for misleading or deceptive conduct within the meaning of the Australian Consumer Law for $823,172.93. 2. Judgment for the plaintiff against the defendant in damages for breach of warranty of authority in the amount of $845.456.93. 3. Grant leave to the parties to restore the matter before me in relation to any necessary re-calculation of interest. 4. Order the defendant to pay the plaintiff's costs. 5. Grant liberty to the parties to restore the matter before me if either party seeks a different costs order. 6. Order that the amount of $150,000 paid into court on 28 April 2017 as security for costs be paid out to the plaintiff's solicitors. Catchwords: SHIPPING AND NAVIGATION - Bills of lading - House bill - Ocean bill - Distinction between - Where two bills issued in respect of one cargo - House bill with appearance of ocean bill issued by freight forwarder - Ocean bill issued by actual carrier - Sea Carriage Documents Act 1997 - Characteristics of a bill of lading - Bearer bills of lading - Right to delivery - Whether unendorsed bills of lading conferred security interest. CONSUMER LAW - Misleading or deceptive conduct - Whether freight forwarder misrepresented house bills as bills of lading. BREACH OF WARRANTY OF AUTHORITY - Cause of action – Belief of plaintiff in existence of authority - Inducement for plaintiff to enter into contract with third party- Whether loss caused by freight forwarder's breach of warranty. DAMAGES - Statutory - Competition and Consumer Act 2010 - Measure of damages - Identification of loss or damage required - Causation of loss or damage - Quantification of damage caused "by conduct of" person in breach of s 18. DAMAGES - Common Law - Breach of warranty of authority - Measure of damages - Whether plaintiff entitled to contractual or court rate of interest. Legislation Cited: Australian Consumer Law(C'th) Sea-Carriage Documents Act 1997 (NSW) Competition and Consumer Act 2010 (C'th) Cases Cited: Westpac Banking Corporation v "Stone Gemini" (1999) FCA 434 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited (1978) 140 CLR 216 at 223 March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506 Leggo v Brown & Dureau Limited (1923) 32 CLR 95 at 99 Firbank's Executors v Humphreys (1886) 18 QBD 54 BHPB Freight Pty Limited v Cosco Oceania Chartering Pty Limited & Ors [2009] FCA 1087 Penn v Bristol & West Building Society [1997] 1 WLR 1356 Commonwealth Bank of Australia v Hamilton [2012] NSWSC 242 at [288]-[297] Carrington Slipways Pty Limited v Patrick Operations Pty Limited (1991) 24 NSWLR 745 The Ythan [2006] 1 Lloyd's Rep. 456 Jones v Dunkel (1959) 101 CLR 298 Henville v Walker [2001] HCA 52; 206 CLR 459 Texts Cited: Bills of Lading, Aikens, Lord and Bools (2006) Shipping Law, Dickey & Davies, 4th edition (2016) Charter Parties, Scrutton 19th Edition (1984) Scrutton on Charterparties and Bills of Lading, 23rd edition Category: Principal judgment Parties: Australia Capital Financial Management Pty Ltd ACN 153 058 489 (plaintiff); Freight Solutions (Vic) Pty Ltd ACN 103 179 880 (defendant) Representation: Counsel: Mr E Cox appeared for the Plaintiff Dr R Scheelings appeared for the Defendant on 4, 5, 6, and 7 June 2017 Ms C. Gleeson appeared for the Defendant on 8 June 2017 Mr M. Harvey appeared for the Defendant on 28 July 2017