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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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Alpine Beef Pty Ltd v Trycill Pty Ltd
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.