BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1287

BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1287

BestCare established on the balance of probabilities a loss of a real commercial opportunity to derive profit from its relationship with IAMS under the Supply Agreement for four years (to May 2008), but not in relation to ongoing relationships with Nestlé, Safcol or Doane after 30 June 2008. The loss of chance with IAMS is valued at the net present value of expected profit from 14,000 tonnes per annum over four years, discounted by 45% for contingencies and vicissitudes. No award is made for future dealings with Nestlé, Safcol, or Doane beyond 30 June 2008 for lack of evidence of a real, not negligible, continuing opportunity.

Parties
First Plaintiff: BestCare Foods Ltd; Second Plaintiff: BestCare Food (Sales) Pty Ltd; First Defendant: Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd); Second Defendant: Origin Energy Retail Ltd
Jurisdiction
Australia
Judgment Date
10 September 2013
Procedural Posture
Remitter to Equity Division to Assess Damages for Lost Profits / Post Trial, Assessment of Damages After Orders of Court of Appeal
Outcome
Damages to be awarded for lost profits as assessed; court invites submissions from parties to finalise orders.
Legal Topics
Negligence, Damages, Assessment of Damages, Loss of Chance, Lost Profits, Remitter Procedure
Torts Contracts Practice and Procedure Negligence Damages Assessment of Damages Loss of Chance Lost Profits +1 more

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Parties

BestCare Foods Ltd

First Plaintiff

BestCare Food (Sales) Pty Ltd

Second Plaintiff

Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd)

First Defendant

Origin Energy Retail Ltd

Second Defendant

Procedural Posture

Remitter to Equity Division to Assess Damages for Lost Profits / Post Trial, Assessment of Damages After Orders of Court of Appeal

Legal Issues

  1. 1 Whether BestCare suffered a loss of a commercial opportunity of real value to derive profits from IAMS, Nestlé, Safcol, and Doane after the factory explosion; Appropriate quantification and discount for lost profits under the relevant contracts and arrangements

Ratio Decidendi

BestCare established on the balance of probabilities a loss of a real commercial opportunity to derive profit from its relationship with IAMS under the Supply Agreement for four years (to May 2008), but not in relation to ongoing relationships with Nestlé, Safcol or Doane after 30 June 2008. The loss of chance with IAMS is valued at the net present value of expected profit from 14,000 tonnes per annum over four years, discounted by 45% for contingencies and vicissitudes. No award is made for future dealings with Nestlé, Safcol, or Doane beyond 30 June 2008 for lack of evidence of a real, not negligible, continuing opportunity.

Court Disposition

Damages to be awarded for lost profits as assessed; court invites submissions from parties to finalise orders.