Amcor Ltd v Barnes (Ruling No 3) - [2019] VSC 393

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:	8 February 2019 Further written submissions filed on 18 March 2019 by the Plaintiffs by Counterclaim/ Defendants to Cross-Claim
DATE OF JUDGMENT:	14 June 2019
CASE MAY BE CITED AS:	Amcor Ltd & Ors v Barnes & Ors (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 393

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PRACTICE AND PROCEDURE — Application to reopen case and adduce further evidence — Where application to reopen is consented to by the parties — Exercise of discretion in the interests of justice — Di Stasio Pty Ltd v R & K Services Pty Ltd [2018] VSCA 340 referred to.

CONTRACT — Asset Sale Deed — Business sold as a going concern — Court has earlier determined the proper construction of that agreement — Court adopted ‘business as usual’ construction including in respect of reciprocal purchase and supply obligations under clause 12.2 — Court found that on a ‘business as usual’ construction of the clause 12.2 purchase obligation, the purchaser of the business would likely have received some small amount of Amcor Displays’ work of the kind the business had been doing prior to the sale — 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 (Vic) — Additional legal question raised for determination by the Court concerning subset of disputed jobs (‘Amcor Displays Objection’) — Determination of Amcor Displays Objection — For what (if any) Amcor Displays jobs is the purchaser of the business entitled to be compensated by an award of damages.

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

TABLE OF CONTENTS

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

Reasons for decision delivered on 28 November 2016............................................................ 1
Ruling No 1.................................................................................................................................... 2
Ruling No 2.................................................................................................................................... 4
Dispute regarding the ‘Amcor Displays jobs’................................................................. 4
The Mines Report was delivered on 12 November 2008............................................... 4
Orders made on 7 December 2018.................................................................................... 5

Each of the Holihan parties and the Amcor parties seek leave to re-open............................. 6

Overriding principle: re-opening permissible where the interests…

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 3)

Details

AGLC: Amcor Ltd v Barnes (Ruling No 3) [2019] VSC 393
Case: [2019] VSC 393
Decision Date: 14 June 2019

CaseChat Overview and Summary

In the matter of Amcor Ltd v Barnes (Ruling No 3), the court was presented with an application by Amcor Ltd to reopen the case and adduce further evidence concerning the asset sale deed and reciprocal purchase and supply obligations. The dispute centred on the interpretation of the contract between Amcor Ltd and Barnes, specifically clause 12.2, and whether the purchaser of the business was entitled to compensation for certain jobs performed by Amcor Displays. The matter was before the Supreme Court of Victoria.

The primary legal issue the court had to determine was whether it should exercise its discretion to reopen the case and allow the introduction of further evidence. This decision required consideration of the principles set out in Di Stasio Pty Ltd v R & K Services Pty Ltd [2018] VSCA 340, which emphasises the importance of achieving justice in individual cases. Another issue was the interpretation of clause 12.2 of the asset sale deed, specifically whether the purchaser of the business was entitled to compensation for a subset of disputed jobs performed by Amcor Displays.

The court found that reopening the case and allowing the introduction of further evidence was in the interests of justice, particularly given that the parties had consented to the reopening. The court carefully considered the principles in Di Stasio Pty Ltd v R & K Services Pty Ltd, determining that it was appropriate to exercise its discretion to achieve a just outcome. Regarding the interpretation of clause 12.2, the court concluded that the purchaser of the business was entitled to compensation for some of the Amcor Displays jobs, but not all, based on the ‘business as usual’ construction of the clause.

The court ordered that the case be reopened to allow the introduction of further evidence and that the special referee appointed under Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) would determine the compensation for the disputed jobs. The court also ordered that the purchaser of the business would be compensated for a subset of the Amcor Displays jobs, as determined by the special referee.

Orders