Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd

Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) sought to vary orders of the Court made on 24 April 2013, or in the alternative, to recall part of the reasons for that decision. The dispute concerned the assessment of damages, specifically lost profits, following a previous judgment. The application was heard by Macfarlan, Hoeben and Ward JJA in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the original orders, which did not include an award for lost profits for a specific period, should be varied. This required the Court to consider the extent to which it could revisit or alter its previous orders and the grounds upon which such variation might be permissible, particularly in light of the referee's findings and the Court's prior reasoning.

The Court of Appeal reasoned that while the general rule is that orders are entered upon recording and are difficult to set aside or vary, there are circumstances where such applications can be entertained. In this instance, the Court found that the referee's reasoning and conclusions reflected a failure to recommend an award for lost profits for the period between 23 January 2003 and 24 November 2004, and that this aspect of the decision warranted reconsideration. Consequently, the Court ordered that Order 3 of the previous orders be varied to reflect this. The remainder of the applicant's notice of motion was dismissed with costs.