Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd

The Full Court of the Supreme Court of South Australia considered an appeal by Hallett Concrete Pty Ltd against Adelaide Brighton Cement Ltd. The dispute arose from a Cement Supply Agreement, as varied in 2014, which included a "most favoured customer term" and an "exclusivity obligation" for Hallett to purchase bulk cement exclusively from Adelaide Brighton. Adelaide Brighton commenced proceedings alleging Hallett breached the exclusivity obligation by procuring cementitious material in two-tonne bags from other suppliers from early 2018. Hallett denied this, arguing the bagged cement was not "bulk cement" under the agreement. Hallett subsequently filed a cross-claim alleging Adelaide Brighton breached the most favoured customer term.

The legal issues before the court included whether Hallett should be granted leave to amend its cross-claim to plead the breach of the most favoured customer term, and whether fresh evidence, discovered shortly before the appeal, should be admitted. Hallett sought to rely on this fresh evidence to support its claim that Adelaide Brighton engaged in non-arm's length arrangements with other customers, thereby breaching the most favoured customer term. Adelaide Brighton did not oppose the admission of the evidence but argued it did not support the inferences Hallett sought to draw.

The Full Court reasoned that leave to amend the cross-claim should be granted, acknowledging that Hallett could not fully articulate its claim without discovery and that the proposed amendments relied on an inferential basis for the alleged breaches. The court also granted leave to appeal and allowed the appeal, finding that the fresh evidence, which comprised internal management reporting documents, was relevant to Hallett's claim. While Adelaide Brighton contended the documents did not support Hallett's inferences, the court's preliminary view was that the evidence was capable of supporting the suggested inference, and the question of whether that inference should be drawn should be determined at trial.

Consequently, the Full Court ordered that leave to appeal be granted, the appeal be allowed, and the notice of alternative contention be dismissed. Hallett was granted leave to amend its cross-claim in substantially the terms sought. The court also reserved the question of costs to the primary judge.