BGL Operations Pty Ltd v Allied Express Transport Pty Ltd

The appeal concerned a dispute arising from a contract for the sale of goods between BGL Operations Pty Ltd (the vendor) and Allied Express Transport Pty Ltd (the purchaser). The primary issue was whether the vendor had waived its right to claim that the purchaser had breached its purchase obligation, and whether the vendor had made an election between two inconsistent courses of action. The case was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the vendor's failure to communicate its readiness and willingness to perform its obligations under the contract precluded it from claiming a breach by the purchaser, and whether the vendor was required to tender performance. Additionally, the court considered whether the trial judge had erroneously assessed damages under section 52 of the *Sale of Goods Act 1923* (NSW), particularly in circumstances where the contract price and market price were the same, and whether the vendor had suffered any loss. The onus of proving failure to mitigate loss was also a relevant consideration.

The Court of Appeal found that the vendor had not waived its right to claim breach and had not made an election. The court reasoned that the obligations of the parties were concurrent and mutually dependent, and that the vendor's conduct did not amount to a failure to tender performance that would preclude its claim. The trial judge's assessment of damages was found to be erroneous, as the vendor had not established a loss on the facts presented.

Consequently, the appeal was allowed, and the orders made at first instance were set aside. Judgment was entered for the appellant (BGL Operations Pty Ltd), and the respondent (Allied Express Transport Pty Ltd) was ordered to pay the appellant's costs of the proceedings at first instance and on appeal. The respondent was also granted a certificate under the *Suitors' Fund Act 1951*, if qualified.