BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd)

BestCare Foods Ltd and Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) were parties to a dispute that came before the Court of Appeal of New South Wales. The matter concerned a separate question removed to the Court of Appeal for determination pursuant to rule 1.21 of the Uniform Civil Procedure Rules 2005.

The legal issue before the Court of Appeal was the scope of a remitter previously ordered by the court. Specifically, the court was asked to determine whether a discount for contingencies, to be applied to the core business and certain dealings (Nestlé, Safcol, and Doane) in a particular period, fell within the scope of that earlier remitter.

The Court of Appeal answered the separate question by stating that the discount for contingencies for the core business and the specified dealings did not fall within the scope of the remitter. The court clarified that the intent of the remitter was to leave the damages award for loss of profit in relation to those dealings, having regard to the discount recommended by the referee, undisturbed. Consequently, the court noted that the discount for contingencies for these claims would be as recommended by the referee, which was 40%. The proceeding was then remitted to the Equity Division for the determination of the remaining questions. The plaintiffs were ordered to pay the defendants' costs of this separate determination.