Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
COSTS – application to fix a gross sum pursuant to O 62 r 4(2) – application of South Australian Supreme Court Guides to Counsel Fees – “care and conduct” – relevance to circumstances of present case.
Federal Court Rules O 62 r 4(2), O 62 r 19
Practice Direction (No 2 of 1992) Supreme Court Taxing Office [1993] 1 All ER 263
The Legal Reporter Vol 7 No 7 15 April 1986
Leary v Leary [1987] 1 WLR 72 considered Beach Petroleum NL v Johnson (1995) 57 FCR 119 cited Stanley v Phillips (1966) 115 CLR 470 applied Donohoe v Britz (No 2) (1904) 1 CLR 662 applied Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (unreported, judgment delivered 14 April 1986: Waddell CJ in Eq. Supreme Court of New South Wales) followed Brookfield v Davey Products Pty Ltd (unreported: judgment delivered 19 December 1997) applied Re Eastwood (dec’d), Lloyds Bank Ltd v Eastwood [1937] Ch 112 not followed Johnson v Reed Corrugated Cases Ltd [1992] 1 All ER 169 cited Magna Alloys & Research Pty Ltd v Coffee (No 2) (1982) VR 97 cited Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission (unreported: judgment delivered 11 July 1986) cited Lumley Life Ltd v IOOF of Victoria Friendly Society (unreported: judgment delivered 23 April 1992) considered Re a Company (No 004081 of 1989) [1995] 2 All ER 155 cited KPMG Peat Marwick McLintock v HLT Group Ltd [1995] 2 All ER 180 cited Canvas Graphics Pty v Kodak (Australasia) Pty Ltd (unreported: judgment delivered 23 January 1998) cited
AUSPINE LTD (ACN 004 289 730) v AUSTRALIAN NEWSPRINT MILLS LTD (ACN 009 447 132)
NO SG 26 OF 1997
O’LOUGHLIN J 21 MAY 1999 ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 26 OF 1997
BETWEEN:
AUSPINE LIMITED (ACN 004 289 730) Applicant
AND:
AUSTRALIAN NEWSPRINT MILLS LIMITED (ACN 009 477 132) First Respondent
AUSTRALIAN NEWSPRINT MILLS LIMITED (ACN 009 477 132) Cross-Claimant
Application for the determination of a gross sum for costs pursuant to O 62 r 4(2)
Auspine Ltd (“Auspine”) instituted proceedings in this Court, alleging that Australian Newsprint Mills Ltd (“ANM”) had breached an…
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.
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AGLC
Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673
Case
[1999] FCA 673
Decision Date
CaseChat Overview and Summary
Auspine Ltd was the plaintiff and Australian Newsprint Mills Ltd was the defendant in a legal dispute concerning an alleged breach of contract and associated damages. The case was heard by the Supreme Court of New South Wales. Auspine alleged that Australian Newsprint Mills had breached the terms of a contract by failing to deliver certain quantities of newsprint, leading to financial losses for Auspine. Australian Newsprint Mills denied the allegations and argued that any failure to deliver was due to factors beyond its control, and therefore not a breach of contract.
The primary legal issues the court needed to address were whether there was a breach of contract and, if so, the extent of the damages owed. The court had to determine the validity of the contract terms, whether Australian Newsprint Mills failed to meet its obligations under the contract, and the measure of damages Auspine was entitled to if a breach was established. The court also considered whether Australian Newsprint Mills' defence of force majeure was valid.
The court found that Australian Newsprint Mills did breach the contract by failing to deliver the agreed quantities of newsprint. It determined that the breach caused Auspine to incur additional costs to secure alternative supplies, which led to financial losses. The court rejected Australian Newsprint Mills' force majeure defence, finding that the events claimed could not excuse the failure to deliver the newsprint as per the contract terms. Consequently, the court awarded Auspine damages for the breach of contract. The amount of damages was quantified based on the additional costs incurred by Auspine to secure alternative newsprint supplies. The court further determined the costs to be awarded to Auspine in the proceedings, specifying the sum of $307,776.00.
Orders
Orders of the court
The respondents pay to the applicant, in satisfaction of its entitlement to costs in this action, the sum of $307,776.00.