Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 9) [2017] NSWSC 1762

Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 9) [2017] NSWSC 1762

Leave to reopen was appropriate because the Court had made a finding after reservation that had not been sought by Mobis or raised with counsel. On reconsideration, however, Mobis's evidence about the value of saleable stock destroyed without inspection was properly treated as unobtainable for the purposes of the proceedings, because the destruction occurred for rational commercial reasons in the aftermath of the warehouse collapse rather than as litigation evidence destruction. Since dismissing the entire approximately $6.3 million stock damages entitlement was not warranted, the Court had to estimate the deduction as best it could; using a $125,000 deduction by reference to the $123,590...

Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Equity Commercial List; Consequential Orders (other Than Costs) / First Defendant's Notice of Motion Seeking Leave to Reopen Paragraphs [24] to [27] of the Judgment of 7 November 2017 Concerning Damages for Stock
Outcome
Leave to seek to have judgment re-opened granted; judgment confirmed.
Legal Topics
['reopening Judgment' 'procedural Fairness' 'assessment of Damages' 'proof of Quantum' 'destroyed Stock' 'deduction From Damages']
['practice and Procedure' 'damages' 'insurance'] ['reopening Judgment' 'procedural Fairness' 'assessment of Damages' 'proof of Quantum' 'destroyed Stock' 'deduction From Damages']

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Procedural Posture

Equity Commercial List; Consequential Orders (other Than Costs) / First Defendant's Notice of Motion Seeking Leave to Reopen Paragraphs [24] to [27] of the Judgment of 7 November 2017 Concerning Damages for Stock

Legal Issues

  1. 1 ['Whether leave should be granted to reopen paragraphs [24] to [27] of the judgment of 7 November 2017 because the finding about the value of saleable stock destroyed without inspection was unbidden and unheralded.' 'Whether the value of saleable stock destroyed without inspection should be treated as being in the same order as the value of saleable stock found within the warehouse.' "Whether Mobis's inability to prove the precise value of saleable stock destroyed without inspection meant its entire damages claim for stock should be dismissed or an estimated deduction should be made."]

Ratio Decidendi

Leave to reopen was appropriate because the Court had made a finding after reservation that had not been sought by Mobis or raised with counsel. On reconsideration, however, Mobis's evidence about the value of saleable stock destroyed without inspection was properly treated as unobtainable for the purposes of the proceedings, because the destruction occurred for rational commercial reasons in the aftermath of the warehouse collapse rather than as litigation evidence destruction. Since dismissing the entire approximately $6.3 million stock damages entitlement was not warranted, the Court had to estimate the deduction as best it could; using a $125,000 deduction by reference to the $123,590...

Court Disposition

Leave to seek to have judgment re-opened granted; judgment confirmed.

Orders

  • ['XL was granted liberty to re-open the relevant paragraphs of the judgment to argue the point.' 'The Court was not prepared to come to a different conclusion after reconsideration.' "The costs of XL's notice of motion of 10 November 2017, including the costs of 14 December 2017, were reserved until the date on...