Applications of CHEP Australia Ltd - [2022] NSWSC 1145

Supreme Court

New South Wales

Medium Neutral Citation: Applications of CHEP Australia Ltd [2022] NSWSC 1145
Hearing dates: 24 – 25 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Equity - Duty List
Before: Robb J
Decision:
See [37] below.

Catchwords:
CIVIL PROCEDURE — interim preservation — search orders — equivalent application in nine separate proceedings — two-stage search orders to identify and remove CHEP pallets — jurisdiction of equity to order return of specific chattels to owner — alleged black market in CHEP pallets causing nationwide supply chain issues — scarcity of resources to manufacture new pallets — whether damages inadequate

Legislation Cited:
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules (2005), rr 25.19, 25.20

Cases Cited:
Aristoc Industries Pty Ltd v R A Wenham (Builders) Pty Ltd [1965] NSWR 581
BIS Cleanaway (trading as CHEP) v Tatale [2007] NSWSC 378
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342
Doulton Potteries Ltd v Bronotte [1971] 1 NSWLR 591
Ip v Chiang [2019] NSWSC 1549
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303

Texts Cited:
Practice Note SC Gen 13

Category: Procedural rulings
Parties:
Proceedings 2022/00198268
CHEP Australia Ltd (Applicant)
SAS Towing Pty Ltd (Respondent)

Proceedings 2022/00198269
CHEP Australia Ltd (Applicant)
Logan Cold Storage Pty Ltd (Respondent)

Proceedings 2022/00198315
CHEP Australia Ltd (Applicant)
A.Elmir Group Pty Ltd (Respondent)

Proceedings 2022/00198336
CHEP Australia Ltd (Applicant)
Grasscourt Investments Pty Ltd (Respondent)

Proceedings 2022/00198373
CHEP Australia Ltd (Applicant)
Fig Hug Pty Ltd (Respondent)

Proceedings 2022/00198387
CHEP Australia Ltd (Applicant)
Paul Muscat (Respondent)

Proceedings 2022/00198404
CHEP Australia Ltd (Applicant)
Jacob Ryan trading as Chill Refrigerated Courier (Respondent)

Proceedings 2022/00198432
CHEP Australia Ltd (Applicant)
Sea World Import & Export Pty Ltd (CAN 065 725 037) atf The Tan & Khor Family Trust trading as Tans Seafood Supplies (Respondent)
Proceedings 2022/00210680
CHEP Australia Ltd (Applicant)
Menai Variety Discounts Pty Ltd (Respondent)
Representation:
Counsel:

All proceedings
T Morahan (Applicant)
Respondents ex parte

Solicitors:
All proceedings
Mason Parkes Law (Applicant)

File Number(s): 2022/00198268; 2022/00198269; 2022/00198315; 2022/00198336; 2022/00198373; 2022/00198387; 2022/00198404; 2022/00198432; 2022/00210680

JUDGMENT

These reasons are concerned with equivalent applications by the plaintiff, CHEP Australia Ltd (CHEP), in nine separate proceedings. Each of the proceedings was commenced by a summons filed by CHEP on 7 July 2022. The nine proceedings are, by their File Numbers and Case Titles:

2022/00198268 – CHEP Australia Limited v SAS Towing Pty Ltd

2022/00198269 – CHEP Australia Limited v Logan Cold Storage Pty Ltd

2022/00198315 – CHEP Australia Limited v A.Elmir Group Pty Ltd

2022/00198336 – CHEP Australia Limited v Grasscourt Investments Pty Ltd

2022/00198373 – CHEP Australia Limited v Fig Hug Pty Ltd

2022/00198387 – CHEP Australia Limited v Paul Muscat

2022/00198404 – CHEP Australia Limited v Jacob Ryan trading as Chill Refrigerated Courier

2022/00198432 – CHEP Australia Limited v Sea World Import & Export Pty Ltd (CAN 065 725 037) atf The Tan & Khor Family Trust trading as Tans Seafood Supplies

2022/00210680…

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.

Keep reading for free

Create a free CaseChat account to read Applications of CHEP Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1145
Decision Date: 26 August 2022

CaseChat Overview and Summary

The applicants, CHEP Australia Ltd, brought separate proceedings against multiple respondents in the Federal Court of Australia, seeking interim preservation orders and search orders. The proceedings sought to address an alleged black market in CHEP pallets, which was causing nationwide supply chain disruptions. CHEP Australia Ltd argued that the scarcity of resources to manufacture new pallets necessitated urgent action, including the identification and removal of illicit pallets from the market, as well as the return of specific chattels to their rightful owner. The legal issues before the Court included the jurisdiction of equity to order the return of specific chattels, the adequacy of damages as a remedy, and the appropriateness of issuing two-stage search orders to first identify and then remove the illicit pallets.

The Court considered the arguments presented by CHEP Australia Ltd and the respondents. It found that equity did indeed have jurisdiction to order the return of specific chattels when a black market was involved and the supply chain was disrupted. The Court recognised that damages alone would not adequately address the nationwide issues caused by the illicit trade in CHEP pallets. Consequently, the Court granted the two-stage search orders, which would allow for the identification and subsequent removal of the illicit pallets from the market. This decision was based on the need to protect the legitimate business interests of CHEP Australia Ltd and to mitigate the broader economic impact of the black market on the supply chain.

In light of the findings, the Court issued the sought interim preservation and search orders, allowing CHEP Australia Ltd to take the necessary steps to address the black market in pallets. The Court's decision acknowledged the urgency of the situation and the potential for significant harm if the illicit trade were not halted. The orders provided CHEP Australia Ltd with the tools to identify and remove the illicit pallets from the market, as well as to recover specific chattels that had been wrongfully taken. This ruling demonstrated the Court's willingness to intervene in complex commercial disputes where the public interest is at stake.

Orders