Bekaa Dairy Products Pty Ltd trading as Ultimate Dairies v Sepak Industries Pty Ltd [2020] NSWSC 473

Supreme Court New South Wales

Medium Neutral Citation: Bekaa Dairy Products Pty Ltd trading as Ultimate Dairies v Sepak Industries Pty Ltd [2020] NSWSC 473 Hearing dates: 27 March 2020 Date of orders: 01 May 2020 Decision date: 01 May 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the amended summons filed 10 December 2019.

(2) The plaintiff is to pay the defendant's costs of the proceedings. Catchwords: APPEALS – appeals to the Supreme Court – from the Local Court – questions of mixed fact and law – interlocutory ruling - need for leave - claim for debt under instalment contract for supply of a milk pasteurisation machine – defence and cross-claim asserting defect in the machine requiring rectification – rejection of defendant's expert report by Magistrate – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the expert witness code of conduct – failure to demonstrate opinion based on witness's specialised knowledge - refusal of Magistrate to permit defendant to rely on contractual provision alleged to be a penalty – failure to plead defence of penalty – failure to adduce evidence that contractual provision was a penalty – no errors demonstrated

EVIDENCE – opinion evidence – expert opinion – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the code of conduct – failure to demonstrate opinion based on witness's specialised knowledge

CONTRACTS - performance - express terms – penalties – whether interest payable on default amounted to a penalty – where commercial contract subject to negotiation Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58 Local Court Act 2007 (NSW) ss 39 and 40 Uniform Civil Procedure Rules 2005 (NSW) rr 14.4, 31.23, 31.27, 31.28 Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ashi Pty Limited v Karasco Investments Pty Ltd [2009] NSWSC 780 Capital Securitisation Limited v Jammal [2007] NSWSC 1073 Chapmans Ltd v Yandell [1999] NSWCA 361 Coulter v R (1988) 164 CLR 350 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 Texts Cited: Nil Category: Principal judgment Parties: Bekaa Dairy Products Pty Ltd trading as Ultimate Dairies (Plaintiff) Sepak Industries Pty Ltd (Defendant) Representation: Counsel: A Cornish (Plaintiff) B Hemsworth (Defendant)