Amcor Ltd v Barnes (Ruling No 2) - [2018] VSC 137

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2007 08181

AMCOR LIMITED (ACN 000 017 372) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Plaintiffs
v
TREVOR MARK BARNES & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants

(BY ORIGINAL PROCEEDING)

AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED)	Plaintiffs by Counterclaim
v
ACN002693843 BOX PTY LTD (ACN 002 693 843) & ANOR (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants by Counterclaim

(BY COUNTERCLAIM)

ORORA LIMITED (FORMERLY AMCOR PACKAGING (AUSTRALIA) PTY LTD) (ACN 004 275 165)	Cross-Claimant
v
AUSTRALIAN CORRUGATED BOX CO PTY LTD (FORMERLY ACHILLA PTY LTD) (ACN 104 489 581) & ORS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants to Cross-Claim

(BY CROSS-CLAIM)

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2018
DATE OF RULING:	29 March 2018
CASE MAY BE CITED AS:	Amcor Ltd & Ors v Barnes & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 137

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CONTRACT — Asset Sale Deed — Business sold as a going concern — Where Court has ruled on construction of Vendor’s purchase obligation clause (cl 12.2) — Where question of compensation for disputed jobs has been referred to a Special Referee under Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 — Additional legal questions raised for determination by the Court — Whether burden of proof discharged for jobs where invoices and purchase orders are missing or illegible — Scope of argument permissible before Special Referee regarding application of ‘carve out’ in cl 12.2.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs by Counterclaim/Defendants to Cross-Claim	Mr S J Maiden SC and Ms E L Murphy	Mills Oakley
For the Defendants by Counterclaim/Cross-Claimant	Mr C Tran	Gilbert + Tobin

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Legal questions to be determined by the Court before the reference can be completed.. 1

Question 1: Claimed Jobs for which invoices (and purchase orders) are missing or illegible — have the Holihan parties discharged their burden of proof?............................................................... 2

Jobs for which the relevant invoices (and purchase orders) are illegible............................ 2
The Holihan parties’ submission...................................................................................... 3
The Amcor parties’ submission......................................................................................... 3

Conclusion..................................................................................................................................... 3
Jobs for which the relevant invoices (and purchase orders) are missing............................. 4
The Holihan parties’ submission...................................................................................... 7
The Amcor parties’ submission......................................................................................... 8

Conclusion..................................................................................................................................... 9

Question 2: Are the Amcor parties entitled to rely on the carve-out in relation to any work other than ‘repeat order’ work?................................................................................................................... 16

Background.................................................................................................................................. 16
The Holihan parties’ submissions............................................................................................ 21
Relevant aspects of the conduct of the trial and cross-examination of Mr Holihan 23
The issues as formulated in the Joint Statement of Issues and the Amcor parties’ response 27

The Amcor parties’ submissions.............................................................................................. 33
Conclusion................................................................................................................................... 34
The Amcor parties seek the opportunity for a further reply in respect of jobs where the carve-out is enlivened............................................................................................................................ 36

Question 3: Are the Amcor parties permitted to raise any issues with respect to ‘partitions’ work? 36

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 Amcor Ltd v Barnes (Ruling No 2)

Details

AGLC: Amcor Ltd v Barnes (Ruling No 2) [2018] VSC 137
Case: [2018] VSC 137
Decision Date: 29 March 2018

CaseChat Overview and Summary

Amcor Ltd, the purchaser, brought an action against Barnes, the vendor, regarding the sale of a business under an Asset Sale Deed. The dispute involved the interpretation of a purchase obligation clause in the Deed, specifically clause 12.2, and the compensation for certain jobs. The case was heard in the Supreme Court of Victoria. The court had to determine whether the burden of proof was met for jobs where invoices and purchase orders were missing or illegible. Additionally, the court had to decide the scope of argument permissible before the Special Referee regarding the application of a 'carve out' in clause 12.2.

The central legal issues in the case revolved around the interpretation of clause 12.2 of the Asset Sale Deed and the burden of proof for the disputed jobs. The court needed to decide whether Amcor had discharged its burden of proof for the disputed jobs, where the necessary documentation was either missing or illegible. The court also had to examine the scope of the arguments that could be presented to the Special Referee concerning the application of the 'carve out' in clause 12.2.

The Supreme Court ruled that the burden of proof was not discharged for the jobs where invoices and purchase orders were missing or illegible. The court found that the onus was on Amcor to provide clear and convincing evidence to substantiate its claims for compensation. Regarding the scope of argument before the Special Referee, the court held that the Special Referee was entitled to consider the application of the 'carve out' in clause 12.2 within the limits of the issues referred to him. The court clarified that the Special Referee was not bound by the arguments presented in the pleadings but could consider any relevant evidence and arguments within the scope of the issues referred.

The final orders of the court were that the burden of proof was not discharged for the disputed jobs, and the scope of argument before the Special Referee was limited to the issues referred. The matter was referred back to the Special Referee for further consideration in light of the court's determinations.

Orders