Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd [2019] NSWSC 1069

Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd [2019] NSWSC 1069

The Contract was varied on 30 November 2017 to defer any cl 62 stock adjustment to 30 May 2018. No enforceable agreement was reached on 1 December 2017 as to the actual Unprocessed Stock volume. The accepted expert evidence established only 4,165.26 m3 of Unprocessed Stock at completion, 234.74 m3 below the 4,400 m3 minimum, and Kempsey Timbers' refusal to permit an adjustment breached cl 62(3), entitling Hurford to $234,740 plus interest. Hurford's long service leave claim failed because no enforceable promise was proved. Kempsey Timbers' cross-claim failed because causation and damage from the server and access interruption were not proved.

Jurisdiction
Australia
Judgment Date
22 August 2019
Procedural Posture
Contract Dispute Concerning Sale of Timber Mill and Property / Principal Judgment After Hearing in the Equity Commercial List
Outcome
Plaintiff entitled to damages for breach of contract; cross claim to be dismissed.
Legal Topics
['breach of Contract' 'contract Variation' 'warranty as to Stock Volume' 'damages' 'long Service Leave Entitlements' 'pick and Pack Service' 'business Records']
['contract Law' 'evidence' 'commercial Law'] ['breach of Contract' 'contract Variation' 'warranty as to Stock Volume' 'damages' 'long Service Leave Entitlements' 'pick and Pack Service' 'business Records']

Case Brief

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Procedural Posture

Contract Dispute Concerning Sale of Timber Mill and Property / Principal Judgment After Hearing in the Equity Commercial List

Legal Issues

  1. 1 ['Whether the purchase price under the Contract should be adjusted because the volume of Unprocessed Stock on site at completion was less than warranted.' 'Whether Kempsey Timbers made an enforceable promise to account to Hurford for an understatement of long service leave entitlements.' 'Whether Kempsey Timbers suffered damage because Hurford denied remote access to a server and direct access to Mr Borger in connection with the pick and pack service.']

Ratio Decidendi

The Contract was varied on 30 November 2017 to defer any cl 62 stock adjustment to 30 May 2018. No enforceable agreement was reached on 1 December 2017 as to the actual Unprocessed Stock volume. The accepted expert evidence established only 4,165.26 m3 of Unprocessed Stock at completion, 234.74 m3 below the 4,400 m3 minimum, and Kempsey Timbers' refusal to permit an adjustment breached cl 62(3), entitling Hurford to $234,740 plus interest. Hurford's long service leave claim failed because no enforceable promise was proved. Kempsey Timbers' cross-claim failed because causation and damage from the server and access interruption were not proved.

Court Disposition

Plaintiff entitled to damages for breach of contract; cross claim to be dismissed.

Orders

  • ['Hurford is entitled to $234,740.00 in damages assessed in accordance with cl 62(3) at $1,000 per m3.' 'Hurford is entitled to interest on $234,740.00 from 30 May 2018.' "Hurford's claim in respect of long service leave entitlements fails." "Kempsey Timbers' claim for damages for breach of cl 59 of the Contract...