Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries

In *Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries*, the dispute concerned damage allegedly caused by concrete supplied by the appellant, Boral Limited, to the respondent, Foley & Bear Pty Ltd. The central issue was whether a contract for the supply of concrete existed between Boral Limited and Foley & Bear, or if the respondent's contract was alternatively with a different Boral entity. The case was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge had erred in finding that a contract existed between Boral Limited and Foley & Bear. This involved considering the importance of contemporaneous documentary evidence in identifying the contracting party. Furthermore, the court had to assess whether Boral Limited could rely on a defence that was only raised at trial after the close of evidence, and whether the respondent's failure to admit or deny critical issues in its pleadings had any bearing on the matter.

The Court of Appeal found that the primary judge had erred in concluding that Boral Limited was the contracting party. The court emphasised the significance of contemporaneous documentary evidence in establishing the identity of the parties to a contract. It held that the evidence did not support the conclusion that Boral Limited had entered into a contract with the respondent. The court also considered the procedural aspects, including the respondent's decision not to join an alternative Boral company as a defendant at first instance, and the appellant's late raising of a defence.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. Judgment was entered for the defendant Boral Limited, and each party was ordered to pay their own costs of the trial. The respondent was ordered to pay the appellant's costs of the appeal. Leave to file the respondent's Notice of Motion was refused.