Crackin' Snack Pty Ltd v Gameking Australia Pty Ltd

Crackin' Snack Pty Ltd (the appellants) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the primary judge concerning the purported termination of a contract with Gameking Australia Pty Ltd (the respondent). The dispute arose from allegations of misleading or deceptive conduct by the respondent, which the appellants claimed entitled them to terminate their agreement.

The Court of Appeal was required to determine whether the primary judge erred in finding that the appellants were not entitled to terminate the contract. This involved considering whether the respondent's conduct constituted a breach of contract, and if so, whether that breach was sufficiently serious to justify termination. The appeal also concerned allegations of bias against the primary judge, based on perceived "differential" treatment of the parties and adverse credibility assessments. Finally, the court addressed the costs orders made by a different judge, specifically whether the discretion to award costs was improperly constrained by the Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A).

The Court of Appeal dismissed the appeal, finding no error in the primary judge's determination that the appellants were not entitled to terminate the contract. The court held that the alleged breach was minor and that the appellants had affirmed the contract, thereby losing their right to terminate. The court also rejected the allegations of bias, stating that adverse credibility findings by a judge do not, in themselves, demonstrate bias. Regarding costs, the court found that the discretion exercised by the costs judge was not constrained by r 36.16(3A) because the primary judge had expressly provided an opportunity for parties to apply to vary the costs order under that rule.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents’ costs of the appeal. Leave to appeal from the costs judgment of Andronos SC DCJ was refused, and the appellants were also ordered to pay the respondents’ costs of that application.