Mellare v United Pacific Industries Ltd [2014] NSWSC 1626

Mellare v United Pacific Industries Ltd [2014] NSWSC 1626

The court found, on the evidence, that Taiwan Stanch's repeated representations regarding the non-toxic nature of the gel in the Thermoskin packs were promissory and formed a contractual term. The packs in fact contained ethylene glycol, a toxic substance, not propylene glycol as warranted. Taiwan Stanch breached this warranty. United Pacific’s liability to the injured plaintiff arose because of this breach, and the amount paid to satisfy the judgment against United Pacific, plus agreed costs, was a reasonable measure of loss and within the parties’ contemplation. United Pacific was entitled to summary judgment for indemnity from Taiwan Stanch for $900,000 plus interest.

Jurisdiction
Australia
Judgment Date
12 November 2014
Procedural Posture
Cross Claim for Indemnity/breach of Contract / Summary Judgment Application
Outcome
Summary judgment entered for United Pacific against Taiwan Stanch on the amended first cross-claim for $900,000 plus interest.
Legal Topics
['breach of Contract' 'defective Goods' 'indemnity' 'damages for Third Party Personal Injury' 'contribution Between Tortfeasors']
['contract Law' 'torts'] ['breach of Contract' 'defective Goods' 'indemnity' 'damages for Third Party Personal Injury' 'contribution Between Tortfeasors']

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Procedural Posture

Cross Claim for Indemnity/breach of Contract / Summary Judgment Application

Legal Issues

  1. 1 ['Whether Taiwan Stanch breached a contractual warranty regarding the non-toxic nature of gel packs supplied to United Pacific' 'Whether United Pacific is entitled to indemnity or contribution from Taiwan Stanch in respect of damages paid to a third party who suffered personal injury from a defective product' 'Whether the law governing the contract is Australian or Taiwanese law and its relevance to the cause of action' 'Whether the settlement amount paid by United Pacific to the plaintiff is a reasonable measure of damages for the cross-claim']

Ratio Decidendi

The court found, on the evidence, that Taiwan Stanch's repeated representations regarding the non-toxic nature of the gel in the Thermoskin packs were promissory and formed a contractual term. The packs in fact contained ethylene glycol, a toxic substance, not propylene glycol as warranted. Taiwan Stanch breached this warranty. United Pacific’s liability to the injured plaintiff arose because of this breach, and the amount paid to satisfy the judgment against United Pacific, plus agreed costs, was a reasonable measure of loss and within the parties’ contemplation. United Pacific was entitled to summary judgment for indemnity from Taiwan Stanch for $900,000 plus interest.

Court Disposition

Summary judgment entered for United Pacific against Taiwan Stanch on the amended first cross-claim for $900,000 plus interest.

Orders

  • ['I direct the parties to bring in short minutes of order giving effect to my reasons for decision at 10 am on Thursday 13 November 2014.']