Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2017] NSWSC 1615

Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2017] NSWSC 1615

The Service Kill Agreement was not frustrated because delivery to Uniwell was not its object or purpose, Bindaree had only Chinatex as counterparty, and both parties acted after Uniwell's departure on the footing that the agreement remained alive. Bindaree's claim was a conventional damages claim, not a debt claim. The proposed implied term was not pleaded in its final form and in any event failed the requirements for implication. Chinatex breached the agreement by failing to pay and by refusing to perform, while Bindaree was ready, willing and able to perform and carried out Service Kills for Chinatex to the extent possible. Bindaree was entitled to damages for the non-performance...

Jurisdiction
Australia
Judgment Date
24 November 2017
Procedural Posture
Contract Claim for Damages for Breach of Written Service Kill Agreement / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff for $31,350,364, adjusted by bringing the amount attributable to the unexpired portion of the post-termination period to net present value by applying a 2.375% discount.
Legal Topics
['breach of Contract' 'frustration' 'implied Terms' 'damages for Breach of Contract' 'assessment of Damages' 'claim in Debt' 'failure to Pay' 'refusal to Take Delivery']
['contract Law' 'sale of Goods' 'civil Procedure'] ['breach of Contract' 'frustration' 'implied Terms' 'damages for Breach of Contract' 'assessment of Damages' 'claim in Debt' 'failure to Pay' 'refusal to Take Delivery']

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Procedural Posture

Contract Claim for Damages for Breach of Written Service Kill Agreement / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Service Kill Agreement was frustrated by Uniwell's withdrawal from related arrangements" "Whether Bindaree's claim for the non-performance periods was a claim in debt or a claim in damages" 'Whether a term should be implied requiring Bindaree to provide Chinatex with information about the type, mix and price of Service Kill Cattle to enable Chinatex to give authorisations' 'Whether Bindaree carried out Service Kills for Chinatex and was ready, willing and able to perform' "Whether Bindaree's damages should include freight costs and post-termination loss of bargain damages" 'Whether the post-termination damages should be discounted to net present value']

Ratio Decidendi

The Service Kill Agreement was not frustrated because delivery to Uniwell was not its object or purpose, Bindaree had only Chinatex as counterparty, and both parties acted after Uniwell's departure on the footing that the agreement remained alive. Bindaree's claim was a conventional damages claim, not a debt claim. The proposed implied term was not pleaded in its final form and in any event failed the requirements for implication. Chinatex breached the agreement by failing to pay and by refusing to perform, while Bindaree was ready, willing and able to perform and carried out Service Kills for Chinatex to the extent possible. Bindaree was entitled to damages for the non-performance...

Court Disposition

Judgment for the plaintiff for $31,350,364, adjusted by bringing the amount attributable to the unexpired portion of the post-termination period to net present value by applying a 2.375% discount.

Orders

  • ['Bindaree is entitled to judgment in the amount of $31,350,364, as adjusted by bringing the amount attributable to the unexpired portion of the post-termination period to net present value by application of a discount of 2.375%.' 'Bindaree is entitled to pre-judgment interest in respect of the non-performance...