Bindaree Beef Pty Ltd v Raymoon Pty Ltd - [2006] NSWCA 35

New South Wales

Court of Appeal

CITATION: Bindaree Beef Pty Ltd & Anor v Raymoon Pty Ltd [2006] NSWCA 35

HEARING DATE(S): 24/10/05

JUDGMENT DATE:
2 March 2006

JUDGMENT OF: Santow JA at 1; McColl JA at 12; Brownie AJA at 13

DECISION: 1. Appeal allowed. 2. Judgment and orders made in respect of the cross-claim set aside. 3. Matter remitted to the Common Law Division for a new trial, in respect of the cross-claim . 4. Respondent to pay the costs of the appellants of the appeal, but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. 5. Costs of the first trial, as between the parties to the cross-claim, to be in the discretion of the judge who conducts the new trial.

CATCHWORDS: Judges and judgments - insufficient reasons, and findings. Pleadings - admissions of allegations of fact - whether assertion of implied contractual term is an allegation of fact.

CASES CITED: Hanbury v Nolan (1977) 13 ALR 339, HCA
Friends’ Provident Life Office v Hillier Parker May & Rowden (1997) QB 85
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Mifsud v Campbell (1991) 21 NSWLR 725
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Liverpool City Council v Irwin [1977] AC 239
Codelfa Constriction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 345-346
Ellis v Allen [1914] 1 Ch 904, 909
Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489, 503

PARTIES: Bindaree Beef Pty Ltd T/as Orange City Beef - First Appellant
Yolarno Pty Ltd - Second Appellant
Raymoon Pty Ltd - Respondent

FILE NUMBER(S): CA 40728 of 2004

COUNSEL: B R McClintock SC/J Downing - Appellants
M L Williams SC/J Catsanos - Respondent

SOLICITORS: Hunt Partners - Appellants
Blake Dawson Waldron - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20066 of 2004

LOWER COURT JUDICIAL OFFICER: Dowd J

CA 40728/04
SC 20066/02

SANTOW JA
McCOLL JA
BROWNIE AJA
Thursday 2 March 2006

BINDAREE BEEF PTY LTD and another v RAYMOON PTY LTD

Judgment

1 SANTOW JA: I respectfully agree with the reasons given by Brownie AJA in his judgment, which I have had the advantage of reading in draft, subject to the following observations.

2 An implied term of what can be assumed to be an oral contract between the parties was that the appellants “would take all reasonable measures to ensure the health and safety of those persons lawfully entering the abattoir in the course of their employment with [the respondent]”. It was so pleaded in paragraph 7 of the respondent’s cross-claim but never traversed by the appellants. The question is whether that failure to traverse operated as an admission of the allegations there made; SCR Pt 15 r20 as amplified by SCR Pt 6 r6.

3 One begins with the proposition that this contract, being oral, requires intention…

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 Bindaree Beef Pty Ltd v Raymoon Pty Ltd

Details

AGLC: Bindaree Beef Pty Ltd v Raymoon Pty Ltd [2006] NSWCA 35
Case: [2006] NSWCA 35
Decision Date: 2 March 2006

CaseChat Overview and Summary

The appeal concerned a dispute between Bindaree Beef Pty Ltd (appellants) and Raymoon Pty Ltd (respondent) before the New South Wales Court of Appeal. The core of the disagreement related to a cross-claim brought by Raymoon against Bindaree Beef.

The Court of Appeal was required to determine whether the primary judge had provided sufficient reasons for their findings and judgment concerning the cross-claim. Specifically, the court considered whether Raymoon's assertion of an implied contractual term constituted an allegation of fact for the purposes of pleadings, and whether admissions made in the pleadings were sufficient to establish the existence of such a term.

The Court of Appeal found that the primary judge's reasons were insufficient, particularly in relation to the findings of fact and the application of legal principles to those facts concerning the implied contractual term. The court held that the assertion of an implied term, in the context of the pleadings, was an allegation of fact that required proper consideration and determination. Consequently, the court allowed the appeal, set aside the judgment and orders made in respect of the cross-claim, and remitted the matter to the Common Law Division for a new trial. The costs of the appeal were ordered to be paid by the respondent, with provision for a certificate under the Suitors’ Fund Act 1951. The costs of the first trial were left to the discretion of the judge presiding over the new trial.

Orders

Orders of the court

1. Appeal allowed. 2. Judgment and orders made in respect of the cross-claim set aside. 3. Matter remitted to the Common Law Division for a new trial, in respect of the cross-claim . 4. Respondent to pay the costs of the appellants of the appeal, but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. 5. Costs of the first trial, as between the parties to the cross-claim, to be in the discretion of the judge who conducts the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bindaree Beef Pty Ltd & Anor v Raymoon Pty Ltd [2006] NSWCA 35
HEARING DATE(S):	24/10/05
JUDGMENT DATE:	2 March 2006
JUDGMENT OF:	Santow JA at 1; McColl JA at 12; Brownie AJA at 13
DECISION:	1. Appeal allowed. 2. Judgment and orders made in respect of the cross-claim set aside. 3. Matter remitted to the Common Law Division for a new trial, in respect of the cross-claim . 4. Respondent to pay the costs of the appellants of the appeal, but to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified. 5. Costs of the first trial, as between the parties to the cross-claim, to be in the discretion of the judge who conducts the new trial.
CATCHWORDS:	Judges and judgments - insufficient reasons, and findings. Pleadings - admissions of allegations of fact - whether assertion of implied contractual term is an allegation of fact.
CASES CITED:	Hanbury v Nolan (1977) 13 ALR 339, HCA Friends’ Provident Life Office v Hillier Parker May & Rowden (1997) QB 85 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Liverpool City Council v Irwin [1977] AC 239 Codelfa Constriction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 345-346 Ellis v Allen [1914] 1 Ch 904, 909 Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489, 503
PARTIES:	Bindaree Beef Pty Ltd T/as Orange City Beef - First Appellant Yolarno Pty Ltd - Second Appellant Raymoon Pty Ltd - Respondent
FILE NUMBER(S):	CA 40728 of 2004
COUNSEL:	B R McClintock SC/J Downing - Appellants M L Williams SC/J Catsanos - Respondent
SOLICITORS:	Hunt Partners - Appellants Blake Dawson Waldron - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20066 of 2004
LOWER COURT JUDICIAL OFFICER:	Dowd J