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

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

Leave and the appeal failed because no error was shown. The Fox report was correctly rejected: Bekaa had not established relevant specialised knowledge or that the opinion was based on it, the report did not set out the required facts, assumptions and reasoning, it was served out of time without leave or exceptional circumstances, and there was no proper acknowledgment of the Expert Witness Code of Conduct. Without that report and in light of Bekaa's failure to produce available records, photographs or production documents, the Magistrate was entitled to find that Bekaa had not proved that the pasteuriser failed to achieve the required output or that it suffered the claimed damages. The...

Jurisdiction
Australia
Judgment Date
01 May 2020
Procedural Posture
Appeal to the Supreme Court From the Local Court of NSW in Civil Proceedings / Amended Summons Seeking Leave to Appeal and Appeal From Local Court Judgment and Interlocutory Ruling
Outcome
Amended summons dismissed; plaintiff to pay defendant's costs.
Legal Topics
['appeal From Local Court' 'questions of Mixed Fact and Law' 'interlocutory Ruling' 'expert Opinion Evidence' 'expert Witness Code of Conduct' 'failure to Comply With Court Orders' 'contractual Penalties' 'pleading Requirements' 'debt Under Instalment Contract']
['appeals' 'evidence' 'contracts' 'civil Procedure'] ['appeal From Local Court' 'questions of Mixed Fact and Law' 'interlocutory Ruling' 'expert Opinion Evidence' 'expert Witness Code of Conduct' 'failure to Comply With Court Orders' 'contractual Penalties' 'pleading Requirements' 'debt Under Instalment Contract']

Case Brief

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Procedural Posture

Appeal to the Supreme Court From the Local Court of NSW in Civil Proceedings / Amended Summons Seeking Leave to Appeal and Appeal From Local Court Judgment and Interlocutory Ruling

Legal Issues

  1. 1 ['Whether leave was required for the grounds of appeal from the Local Court judgment and interlocutory ruling.' 'Whether the Magistrate erred in declining to admit the Fox report into evidence.' 'Whether Bekaa proved that the pasteuriser failed to meet the required output and that it suffered damages of $61,419.' 'Whether Bekaa was entitled to raise, despite not pleading it, that the contractual finance charge of 3% per month was a penalty.' 'Whether the finance charge of 3% per month amounted to a penalty.']

Ratio Decidendi

Leave and the appeal failed because no error was shown. The Fox report was correctly rejected: Bekaa had not established relevant specialised knowledge or that the opinion was based on it, the report did not set out the required facts, assumptions and reasoning, it was served out of time without leave or exceptional circumstances, and there was no proper acknowledgment of the Expert Witness Code of Conduct. Without that report and in light of Bekaa's failure to produce available records, photographs or production documents, the Magistrate was entitled to find that Bekaa had not proved that the pasteuriser failed to achieve the required output or that it suffered the claimed damages. The...

Court Disposition

Amended summons dismissed; plaintiff to pay defendant's costs.

Orders

  • ['Dismiss the amended summons filed 10 December 2019.' "The plaintiff is to pay the defendant's costs of the proceedings."]