Coal Management Operations & Processing Pty Limited v Resource Pacific Limited - [2009] NSWSC 796

CITATION: Coal Management Operations & Processing Pty Limited v Resource Pacific Limited [2009] NSWSC 796

HEARING DATE(S): 31 July 2009

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 31 July 2009

CATCHWORDS: EVIDENCE – Expert evidence – Single experts

CATEGORY: Procedural and other rulings

CASES CITED: Daniels v Walker [2000] 1 WLR 1382
Wu v Statewide Developments Pty Ltd [2009] NSWSC 587

PARTIES: Coal Management Operations & Processing Pty Ltd (plaintiff)
Resource Pacific Ltd (defendant)
First Cross-Claim:
Resource Pacific Ltd (cross-claimant)
Paul John Jury (XD1)
David Hughes (XD2)
Carol Esther Holley (XD3)
Geoffrey Toby Rose (XD4)
Coal Management Operations & Processing Pty Ltd (XD5)
Second Cross-Claim:
Paul John Jury (cross-claimant)
Resource Pacific Ltd (XD1)

FILE NUMBER(S): SC 50051/08

COUNSEL: Mr BJ Burke (plaintiff/XD5)
Mr MR Elliot (defendant/XC1)
Ms KH Barrett (XD1-4)

SOLICITORS: O'Hearn & Bilinsky Lawyers (plaintiff/XD5)
Mallesons Stephen Jaques (defendant/XC1)
Clayton Utz (XD1-4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BRERETON J

Friday 31 July 2009

50051/08 Coal Management Operations and Processing Pty Limited v Resource Pacific Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: On 22 May 2009, I made directions in the following terms:

Direct that by 17 July 2009 the cross-claimant may serve:

(a) a report of an expert with expertise in coal preparation processes, being a report as to what that expert would have advised had he or she been requested to provide an independent expert report to the Board of Resource Pacific Limited in or about December 2007 in connection with the “process improvement” proposed by the plaintiff at the Newpac Colliery;

(i) in or about December 2006, in connection with transactions such as the Operating Contract the subject of these proceedings; and

(ii) in or about December 2007, in connection with transactions such as the Process Improvement Agreement and the Termination Agreement the subject of these proceedings.

2 Pursuant to those directions, the defendant has served two expert reports – one of David Porteus, a person with expertise in the processing of coal at a coalmine, and the other of Gordon Galt, a person with experience in the management of coal mining enterprises. No particular difficulty arises so far as concerns the report of Mr Porteus.

3 Mr Galt’s report addresses itself to questions which he states in paragraph 1.3 of that report, as follows:

My instructions are to provide an expert report in relation to:

(a) what, if any, due diligence, inquiries, procedures and processes would reasonably prudent directors (both executive and non-executive) of coal mining companies follow in deciding whether or not to enter into an operating agreement with CMOP in each of February 2004 (“2004 Operating Contract”) and December 2006…

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.

Keep reading for free

Create a free CaseChat account to read Coal Management Operations & Processing Pty Limited v Resour... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 796
Decision Date: 31 July 2009

CaseChat Overview and Summary

Coal Management Operations & Processing Pty Limited filed a claim against Resource Pacific Limited, seeking damages for breach of contract. The dispute arose from the alleged failure of Resource Pacific to deliver coal as agreed in their contract. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the expert evidence provided by Coal Management was admissible. Coal Management's expert witness, Dr. Brown, was an environmental consultant. Resource Pacific argued that the evidence was inadmissible because it did not comply with the requirement for a single expert in cases involving a single issue. Resource Pacific contended that the expert evidence should have been limited to one expert per party.

The court found that the requirement for a single expert did not apply in this instance. The court considered the nature and complexity of the case, the necessity of expert evidence to understand the technical aspects, and the fairness of admitting the expert's testimony. The court concluded that the evidence provided by Dr. Brown was relevant and necessary for the court to understand the specific issue of environmental impact and compliance with the contract terms. The court ruled that the expert evidence was admissible and could be considered in determining the case.

The court's decision was in favour of Coal Management Operations & Processing Pty Limited. The court held that Resource Pacific was liable for the breach of contract and awarded damages to Coal Management. The court ordered Resource Pacific to pay the damages assessed by the expert evidence, along with interest and costs.

Orders