Woolworths Group Ltd v Twentieth Super Pace Nominees Pty Ltd atf the Byrns Smith Unit Trust t/as SCT Logistics [2021] NSWSC 344

Woolworths Group Ltd v Twentieth Super Pace Nominees Pty Ltd atf the Byrns Smith Unit Trust t/as SCT Logistics [2021] NSWSC 344

Clause 7.2 relieved SCT only from liability for delay or failure to fulfil contractual obligations where that delay or failure was owing to a Force Majeure Event. SCT's liability for the Goods under cl 12.2 and its indemnity obligation under cl 13.1(b) were not liabilities corresponding to a relevant failure of performance caused by the alleged Force Majeure Event; the indemnity was enlivened by Woolworths' Losses arising from damage to the Goods, irrespective of fault or failure by SCT. Construed in the context of cls 12.2, 13.1(b), 13.2 and 14(a), cl 7.2 did not displace the contractual allocation of risk or relieve SCT of the obligation to indemnify Woolworths for the damaged Goods.

Jurisdiction
Australia
Judgment Date
08 April 2021
Procedural Posture
Equity Commercial List Contract Construction Proceedings / Determination of Separate Question
Outcome
The separate question was answered yes; Woolworths was entitled to be indemnified irrespective of whether the loss and damage was owing to or sustained during a Force Majeure Event.
Legal Topics
['construction of Contract' 'force Majeure Clause' 'contractual Indemnity' 'allocation of Risk for Goods in Transit' 'separate Question']
['contracts' 'commercial Law' 'transport Law'] ['construction of Contract' 'force Majeure Clause' 'contractual Indemnity' 'allocation of Risk for Goods in Transit' 'separate Question']

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Procedural Posture

Equity Commercial List Contract Construction Proceedings / Determination of Separate Question

Legal Issues

  1. 1 ['Whether, on the proper construction of the Transport Terms and Conditions and Transport Prescribed Procedures, Woolworths was entitled to be indemnified for loss and damage to goods irrespective of whether that loss and damage was owing to or sustained during a Force Majeure Event.' 'Whether cl 7.2 relieved SCT from liability to indemnify Woolworths under cl 13.1(b) for goods damaged in a train derailment allegedly caused by extreme weather.' 'Whether the contractual allocation of risk in cls 12.2, 13.1(b) and 14(a) was displaced by the force majeure clause.']

Ratio Decidendi

Clause 7.2 relieved SCT only from liability for delay or failure to fulfil contractual obligations where that delay or failure was owing to a Force Majeure Event. SCT's liability for the Goods under cl 12.2 and its indemnity obligation under cl 13.1(b) were not liabilities corresponding to a relevant failure of performance caused by the alleged Force Majeure Event; the indemnity was enlivened by Woolworths' Losses arising from damage to the Goods, irrespective of fault or failure by SCT. Construed in the context of cls 12.2, 13.1(b), 13.2 and 14(a), cl 7.2 did not displace the contractual allocation of risk or relieve SCT of the obligation to indemnify Woolworths for the damaged Goods.

Court Disposition

The separate question was answered yes; Woolworths was entitled to be indemnified irrespective of whether the loss and damage was owing to or sustained during a Force Majeure Event.

Orders

  • ["The separate question is answered 'yes'." "Unless either party makes an application for a different costs order within 14 days, the plaintiff's costs of the separate question proceedings are to be paid by the first defendant as agreed or assessed." 'Proceedings listed in the Commercial List for further directions...