Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd

Alpine Hardwood (Aust) Pty Ltd sought to enforce an alleged contract with Boral Timber Division, a subsidiary of Hardys Pty Ltd, and its former area sales manager, Michael Ewing, for the purchase of a large quantity of Alpine Ash hardwood timber stored at Tumbarumba. Boral had previously operated a mill that was destroyed by fire, leaving them with a vast quantity of processed Alpine Ash timber that they were unable to sell. Alpine Hardwood claimed that Boral had agreed to sell them 7,671 cubic metres of this timber, but Boral denied any such agreement. The case hinged on whether Alpine Hardwood could prove the existence of such an agreement and whether Michael Ewing had aided and abetted Boral’s alleged contraventions of the Act.

The court was required to determine whether Alpine Hardwood could establish the existence of a binding contract with Boral for the purchase of the entire stock of timber at Tumbarumba. Additionally, the court needed to assess if Michael Ewing had aided and abetted Boral’s contraventions of the Act by being aware of the essential elements constituting the contravention. The applicants’ claims for breach of contract and aiding and abetting were dependent upon proving specific facts about the alleged agreement and Michael Ewing’s knowledge and involvement.

The court concluded that Alpine Hardwood had not discharged the onus of proving that a binding agreement was entered into between Mr Courtney (and/or Alpine) and Boral for the purchase of the entire stock of hardwood timber. The faxes sent by Mr Courtney could not be construed as amounting to an offer for the entire stock of timber. The applicants’ reliance on implication and Boral’s silence did not provide sufficient grounds to infer an agreement. The fax of 9 December 1997, incorporating the Table, did not amount to an offer to purchase the entire stock. The court also found that the applicants could not prove that Michael Ewing had aided and abetted Boral’s alleged contraventions of the Act.

The court dismissed the application and ordered that Alpine Hardwood pay the respondents’ costs. The decision was based on the lack of evidence to support the existence of a binding contract and the absence of proof that Michael Ewing had the requisite knowledge to be held liable for aiding and abetting.