Zaps Transport (Aust) Pty Limited v Richland Express Pty Limited [2018] NSWSC 1930

Supreme Court New South Wales

Medium Neutral Citation: Zaps Transport (Aust) Pty Limited v Richland Express Pty Limited [2018] NSWSC 1930 Hearing dates: 30 – 31 October 2018 and 1 November 2018 Date of orders: 13 December 2018 Decision date: 13 December 2018 Jurisdiction: Equity Before: Hallen J Decision: Further amended Statement of Claim dismissed with costs. Catchwords: COMMERCE — Customs and excise — Customs duties — Plaintiff served with notice of statutory demand under Customs Act 1901 (Cth) s 35A for amount payable on stolen dutiable goods — Plaintiff operated licensed Warehouse for dutiable goods in respect of Part V of Customs Act — Whether Defendant had contractual obligation to insure dutiable goods in event of statutory demand and pay proceeds of insurance to Plaintiff as recipient of demand — Insurer refused to pay demand because Plaintiff not covered by contract of insurance — Whether Defendant had knowledge that Plaintiff had assumed management of Warehouse

CONTRACTS — Formation — Novation — Whether Plaintiff was substituted into contract between Defendant and original Warehouse licensee — Requirements for effective novation of contract by substitution of party — Whether effective novation where Defendant had no knowledge that Plaintiff assumed the place of third party — Relevance of intention for effective novation — Whether new contract was formed when Defendant continued to use Warehouse after learning it was managed by Plaintiff — Whether any agreement evidenced by conduct

CONTRACTS — Whether adoption of contract that had previously existed between Defendant and another entity Legislation Cited: Corporations Act 2001 (Cth) Customs Act 1901 (Cth) Customs Tariff Act 1995 (Cth) Cases Cited: Australian Securities and Investments Commission v Letten (No 13) (2011) 86 ACSR 174; [2011] FCA 1151 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Buchanan v Sirocco Area Leases Ltd (2008) 20 PRNZ 256 (HC); [2008] NZHC 766 CEO of Customs v John Deere Limited (2006) 155 FCR 208; [2006] FCA 1280 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458; [2001] NSWCA 147 Comptroller General of Customs v Zappia [2018] HCA 54 Comptroller General of Customs v Zappia [2018] HCATrans 140 Comptroller General of Customs v Zappia [2018] HCATrans 51 Dan v Barclays Australia Ltd (1983) 46 ALR 437 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282 Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWSC 528 Goben Pty Ltd v The Chief Executive Officer of Customs (No 2) (1996) 68 FCR 301 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 New Galaxy Investments Pty Ltd v Thomson [2017] NSWCA 153 Pearce v Coynes Freight Management Group Pty Ltd (2010) 183 FCR 540; [2010] FCA 320 Re Zaps Transport (Aust) Pty Ltd and Comptroller General of Customs [2017] AATA 202 Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd (1957) 98 CLR 93; [1957] HCA 10 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 17,521; [2000] NSWCA 25 Zappia v Comptroller General of Customs (2017) 254 FCR 363; [2017] FCAFC 147 Texts Cited: H G Beale (ed), Chitty on Contracts (29th ed, 2004, Sweet and Maxwell) Category: Principal judgment Parties: Zaps Transport (AUST) Pty Limited (Plaintiff) Richland Express Pty Limited (Defendant) Representation: Counsel: Mr T Hall (solicitor) (Plaintiff) Mr S C Ipp (Defendant)