Regal Pearl Pty Ltd v Stewart - [2002] NSWCA 291

CITATION: Regal Pearl Pty Limited v Stewart & Ors [2002] NSWCA 291

FILE NUMBER(S): CA 40421/01; 40422/01; 4023/01; 40424/01; 40425/01

HEARING DATE(S): 3 June 2002

JUDGMENT DATE:
15 November 2002

PARTIES :

Regal Pearl Pty Limited (Appellant)
Jane Ralston Stewart (First Respondent)
Great Ocean Products Pty Limited (Second Respondent)
Tai Kwan Seafood Pty Limited (Third Respondent)
and four other appeals (40421/01; 40423/01; 40424/01; 40425/01):
To Hung (First Respondent)
Eugenia Rozenberg (First Respondent)
Eva Agnes Markham (First Respondent)
Shen Ping Chen (First Respondent)

JUDGMENT OF: Sheller JA at 1; Stein JA at 2; Hodgson JA at 109

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 1785/99
DC 2943/99
DC 4742/99
DC 9013/99
DC 261/00

LOWER COURT
JUDICIAL OFFICER : Woods ADCJ

COUNSEL: J Hislop QC/R Cavanagh (Appellant)
No appearance (First Respondents)
P Deakin QC/J Turnbull (Second Respondent)
G Drake (Third Respondent)

SOLICITORS: Holman Webb (Appellant) (CA 40422/01)
McLaughlin & Riordan (First Respondents)
McCabes (Second Respondent)
Lum Mow & Associates (Third Respondent)

CATCHWORDS: NEGLIGENCE - patrons contracted hepatitis A virus after eating prawns at restaurant - causation - contaminated - whether the prawns were adequately cooked - failure to warn - duty of care - foreseeability - - TRADE PRACTICES - SALE OF GOODS - fitness for purpose - merchantability - whether appellant entitled to be indemnified by the wholesaler - breach of contract - whether prawns were of merchantable quality and not fit for the purpose for which they were required - D

LEGISLATION CITED: Sale of Goods Act 1923, s 19
Trade Practices Act (Cth), s 74B, s 74D, s 75AK(1)

CASES CITED:
Blair v Curran (1939) 62 CLR 464
Coulton v Holcombe (1986) 162 CLR 1
Heil v Hedges [1951] 1 TLR 512
Rogers v The Queen (1994) 181 CLR 251
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Yachetti v John Duff & Sons Ltd (1943) 1 DLR 194

DECISION: 1) The appeal by the appellant against the importer (the second respondent) is dismissed with costs; 2) The appeal by the appellant against the wholesaler (the third respondent) is allowed; 3) The wholesaler is to pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act if otherwise entitled; 4) The verdict in favour of the wholesaler (third respondent) as against the appellant on the cross-claim be set aside and, in lieu thereof, the appellant's cross-claim against the third respondent be upheld and the third respondent ordered to indemnify the appellant in respect of the appellant's liabilty to the plaintiff in each case; 5) Liberty to apply on the costs of the trial on giving 7 days notice in writing.

CA 40421/01; 40422/01 40423/01
CA 40424/01; 40425/01
DC 1785/99; 2943/99; 4742/99
DC 9013/99; 261/00

SHELLER JA
STEIN JA
HODGSON JA
15 November 2002

REGAL PEARL PTY LIMITED v STEWART & ORS

These five appeals were heard together as were the trials in the District Court. In each case Woods ADCJ found a verdict and judgment for…

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.

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Details

Case: [2002] NSWCA 291
Decision Date: 15 November 2002

CaseChat Overview and Summary

Regal Pearl Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against decisions made in favour of the importer (the second respondent) and the wholesaler (the third respondent) concerning claims arising from patrons contracting hepatitis A after eating prawns at the appellant's restaurant. The dispute centred on whether the prawns were adequately cooked, whether there was a failure to warn, and whether the prawns were of merchantable quality and fit for purpose.

The court was required to determine whether the appellant was negligent in its duty of care to its patrons, specifically regarding the foreseeability of harm from contaminated prawns and whether the prawns were adequately cooked. Furthermore, the court had to consider whether the appellant breached its contractual obligations under the Sale of Goods Act by supplying prawns that were not of merchantable quality or fit for the purpose for which they were required. A key issue was also whether the appellant was entitled to be indemnified by the wholesaler for any liability incurred.

The Court of Appeal found that the importer was not liable, dismissing the appeal against them. However, the appeal against the wholesaler was allowed. The court reasoned that the prawns supplied by the wholesaler were not of merchantable quality nor fit for the purpose of being served raw or lightly cooked in a restaurant, thereby breaching the contract. Consequently, the wholesaler was ordered to indemnify the appellant for its liability to the patrons.

Orders

Orders of the court

1) The appeal by the appellant against the importer (the second respondent) is dismissed with costs; 2) The appeal by the appellant against the wholesaler (the third respondent) is allowed; 3) The wholesaler is to pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act if otherwise entitled; 4) The verdict in favour of the wholesaler (third respondent) as against the appellant on the cross-claim be set aside and, in lieu thereof, the appellant's cross-claim against the third respondent be upheld and the third respondent ordered to indemnify the appellant in respect of the appellant's liabilty to the plaintiff in each case; 5) Liberty to apply on the costs of the trial on giving 7 days notice in writing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Regal Pearl Pty Limited v Stewart & Ors [2002] NSWCA 291
FILE NUMBER(S):	CA 40421/01; 40422/01; 4023/01; 40424/01; 40425/01
HEARING DATE(S):	3 June 2002
JUDGMENT DATE:	15 November 2002
PARTIES :	Regal Pearl Pty Limited (Appellant) Jane Ralston Stewart (First Respondent) Great Ocean Products Pty Limited (Second Respondent) Tai Kwan Seafood Pty Limited (Third Respondent) and four other appeals (40421/01; 40423/01; 40424/01; 40425/01): To Hung (First Respondent) Eugenia Rozenberg (First Respondent) Eva Agnes Markham (First Respondent) Shen Ping Chen (First Respondent)
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Hodgson JA at 109

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1785/99 DC 2943/99 DC 4742/99 DC 9013/99 DC 261/00
LOWER COURT JUDICIAL OFFICER :	Woods ADCJ

COUNSEL:	J Hislop QC/R Cavanagh (Appellant) No appearance (First Respondents) P Deakin QC/J Turnbull (Second Respondent) G Drake (Third Respondent)
SOLICITORS:	Holman Webb (Appellant) (CA 40422/01) McLaughlin & Riordan (First Respondents) McCabes (Second Respondent) Lum Mow & Associates (Third Respondent)
CATCHWORDS:	NEGLIGENCE - patrons contracted hepatitis A virus after eating prawns at restaurant - causation - contaminated - whether the prawns were adequately cooked - failure to warn - duty of care - foreseeability - - TRADE PRACTICES - SALE OF GOODS - fitness for purpose - merchantability - whether appellant entitled to be indemnified by the wholesaler - breach of contract - whether prawns were of merchantable quality and not fit for the purpose for which they were required - D
LEGISLATION CITED:	Sale of Goods Act 1923, s 19 Trade Practices Act (Cth), s 74B, s 74D, s 75AK(1)
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Coulton v Holcombe (1986) 162 CLR 1 Heil v Hedges [1951] 1 TLR 512 Rogers v The Queen (1994) 181 CLR 251 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Yachetti v John Duff & Sons Ltd (1943) 1 DLR 194
DECISION:	1) The appeal by the appellant against the importer (the second respondent) is dismissed with costs; 2) The appeal by the appellant against the wholesaler (the third respondent) is allowed; 3) The wholesaler is to pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act if otherwise entitled; 4) The verdict in favour of the wholesaler (third respondent) as against the appellant on the cross-claim be set aside and, in lieu thereof, the appellant's cross-claim against the third respondent be upheld and the third respondent ordered to indemnify the appellant in respect of the appellant's liabilty to the plaintiff in each case; 5) Liberty to apply on the costs of the trial on giving 7 days notice in writing.