Allied Express Transport Pty Ltd v BAX Global (Aust) Pty Ltd (No 3) [2006] NSWSC 1319

Allied Express Transport Pty Ltd v BAX Global (Aust) Pty Ltd (No 3) [2006] NSWSC 1319

BAX was entitled to damages for Samsung deliveries, Dell deliveries, and consignments with signed manifests despite no WMS allocation forms, but not for the COD category or individual Dell claims based on additional file pages not referred to at the hearing; the latter attempt amounted to an impermissible attempt to re-open the case. The claim and cross-claim were treated as separate events for costs, with Allied entitled to the costs of the claim and ordered to pay one third of BAX's costs of the cross-claim because BAX was only partially successful.

Jurisdiction
Australia
Judgment Date
27 November 2006
Procedural Posture
Commercial Proceedings Involving a Claim and Cross Claim for Damages for Breach of Contract / Ex Tempore Judgment on Remaining Quantum of the Cross Claim, an Application to Re Open, and Costs After Principal Reasons for Judgment
Outcome
Application to re-open refused. Allied to have judgment for the net amount after set-off, and costs ordered by treating the claim and cross-claim as separate events.
Legal Topics
['quantum of Cross Claim' 'application to Re Open Case' 'evidence Not Admitted or Not Referred to at Hearing' 'equitable Set Off' 'costs Follow the Event' 'claim and Cross Claim as Separate Events']
['damages' 'civil Procedure' 'costs' 'contract Law'] ['quantum of Cross Claim' 'application to Re Open Case' 'evidence Not Admitted or Not Referred to at Hearing' 'equitable Set Off' 'costs Follow the Event' 'claim and Cross Claim as Separate Events']

Case Brief

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Procedural Posture

Commercial Proceedings Involving a Claim and Cross Claim for Damages for Breach of Contract / Ex Tempore Judgment on Remaining Quantum of the Cross Claim, an Application to Re Open, and Costs After Principal Reasons for Judgment

Legal Issues

  1. 1 ['Whether BAX was entitled to damages where there was a signed manifest but no WMS allocation form.' 'Whether BAX was entitled to damages where its evidence indicated receipt of a COD or other documentary record explaining what happened to consignments.' 'Whether BAX could rely on additional documents in lever arch files not referred to by counsel or a witness, thereby re-opening the case after principal reasons were published.' 'Whether the claim and cross-claim should be treated as separate events for costs purposes despite set-off being pleaded.' 'Whether any dominant or separable issue warranted an issues-based costs order.']

Ratio Decidendi

BAX was entitled to damages for Samsung deliveries, Dell deliveries, and consignments with signed manifests despite no WMS allocation forms, but not for the COD category or individual Dell claims based on additional file pages not referred to at the hearing; the latter attempt amounted to an impermissible attempt to re-open the case. The claim and cross-claim were treated as separate events for costs, with Allied entitled to the costs of the claim and ordered to pay one third of BAX's costs of the cross-claim because BAX was only partially successful.

Court Disposition

Application to re-open refused. Allied to have judgment for the net amount after set-off, and costs ordered by treating the claim and cross-claim as separate events.

Orders

  • ["BAX's application to re-open the case was refused." "Allied should have judgment entered in its favour for $323,162.41 after deducting BAX's entitlement of $116,025.03 from $439,187.44." 'Allied is entitled to the costs of the claim.' "Allied is to pay one third of BAX's costs of the cross-claim." 'The parties...