Alpine Beef Pty Ltd v Trycill Pty Ltd

Case [2010] FCA 136


FEDERAL COURT OF AUSTRALIA

Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136

Citation: Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136
Parties: ALPINE BEEF PTY LTD (FORMERLY KNOWN AS CEETEX PTY LTD) (ACN 088 887 209) v
TRYCILL PTY LTD (ACN 003 304 845) AND ORS
File number: NSD 232 of 2009
Judge: FLICK J
Date of judgment: 1 March 2010
Catchwords:

TRADE PRACTICES – misleading and deceptive conduct – representation as to a future matter – reasonable ground for the belief

CONTRACT – parties – novation – merchantable quality – fitness for purpose

Held: Application dismissed

Legislation: Trade Practices Act 1974 (Cth) ss 51A, 52, 82(2)
Limitation Act 1969 (NSW) s 54
Sale of Goods Act 1923 (NSW) s 19
Cases cited:

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387, applied
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364, referred to
Commonwealth of Australia v Verwayen (1990) 170 CLR 394, applied
David Jones Ltd v Willis (1934) 52 CLR 110, cited
Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112, referred to
Giumelli v Giumelli [1999] HCA 10, 196 CLR 101, referred to
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, applied
Goodridge v Macquarie Bank Limited [2010] FCA 67, cited
Hanave Pty Ltd v LFOT Pty Ltd [2004] FCAFC 180, 136 FCR 566, cited
HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795, cited
McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2, 165 FCR 230, applied
McMahon v National Foods Milk Ltd [2009] VSCA 153, 259 ALR 20, cited
Mr Whippy Pty Ltd v Oceanwalk Pty Ltd [2008] NSWCA 8, cited
Readymix Holdings International Pte Ltd v Wieland
Process Equipment Pty Ltd (No 2) [2008] FCA 1480, referred to
South Australian Farmers Fuels Pty Ltd v Whittingham [2008] SASC 211, cited
Teheran-Europe Co Ltd v S T Belton (Tractors) Ltd [1968] 2 QB 545, cited
Toikan International Insurance Broking Pty Ltd v Plasteel Windows Australia Pty Ltd (1989) 15 NSWLR 641, cited
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270, referred to

Carter J W, Peden E, Tolhurst G J, Contract Law in Australia (5th ed, LexisNexis Butterworths, 2007)

Franzi N C A, “Merchantable Quality and Particular Purpose: Questions of Overlap” (1977) 51 ALJ 298

Date of Hearing: 14, 15, 16, 17, 18, 24 December 2009
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 123
Counsel for the Applicant: Mr J Duncan
Solicitor for the Applicant: Aleco Vrisakis, Lawyer
Counsel for the Respondents: Mr C Branson QC
Solicitor for the Respondents: Tucker & Cowen

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 232 of 2009

BETWEEN:

ALPINE BEEF PTY LTD (FORMERLY KNOWN AS CEETEX…

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Details
AGLC
Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136
Case
[2010] FCA 136
Decision Date

CaseChat Overview and Summary

Alpine Beef Pty Ltd sought damages against Trycill Pty Ltd in the Federal Circuit and Family Court of Australia. Alpine Beef alleged that Trycill breached a contract for the construction of a vessel, the China Grove II. The parties had entered into an original contract in 1998 and later a novation in 2001. Alpine Beef claimed that Trycill failed to complete the vessel to the required standards and that Trycill's actions constituted a breach of contract and a statutory claim under the Shipping and Other Transport Act 1974. Trycill denied the allegations and counterclaimed for payment of outstanding invoices.

The court had to determine whether Alpine Beef was entitled to damages for breach of contract, either under the 1998 contract or the 2001 novation. The court also had to consider whether Alpine Beef’s statutory claim under s 52 of the 1974 Act was valid. Furthermore, the court examined whether Alpine Beef was entitled to interest on any awarded damages under s 51A of the Judiciary Act 1903. The court concluded that Alpine Beef's claims under both the contract and statute failed because there was no evidence to support the allegations of breach or that the statutory requirements were unmet. The court found that Alpine Beef was not entitled to interest on any hypothetical damages because no damages were awarded.

The court dismissed Alpine Beef’s application for relief and ordered Alpine Beef to pay Trycill's costs. The court held that the evidence did not support Alpine Beef’s claims and that Trycill was not liable for the alleged breaches. The court found that Alpine Beef had not demonstrated that Trycill failed to complete the vessel according to the contract or statutory requirements. Consequently, Alpine Beef’s claims were dismissed, and the proceeding was concluded with an order for Alpine Beef to pay Trycill's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Had an award of damages been made in favour of the Applicant, an order would have been made for the payment of interest pursuant to s 51A as from the date when the monies were paid for the repairs to the China Grove II.Conclusions It is thus considered that the Applicant’s claim to relief founded upon either the contract as made in 1998 or the subject of novation in 2001 fails. It is further considered that the Applicant’s claim to relief founded upon s 52 of the 1974 Act fails. The Application is to be dismissed. There is no reason why the Applicant should not pay the costs of the Respondents.ORDERS The Orders of the Court are:1.The proceeding be dismissed.2.The Applicant is to pay the costs of the Respondents.

Ratio Decidendi

Legal Principle Established

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