TMA Australia Pty Limited v 100% Bottling Company Pty Ltd

TMA Australia Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the primary judge who found that a contract had not been formed between TMA Australia and 100% Bottling Company Pty Ltd. The dispute centred on the existence of two crucial emails that TMA Australia alleged formed part of the contractual agreement. 100% Bottling Company denied receiving or sending these emails, and no electronic record of them could be produced.

The Court of Appeal was required to determine whether the primary judge erred in finding that the alleged contract had not been established. Specifically, the court had to consider whether the primary judge was justified in rejecting TMA Australia's evidence, including the hard copies of the disputed emails, and whether the inferences drawn from the circumstances and context of the alleged formation were sound. The central legal issue was whether TMA Australia had discharged its onus of proof in demonstrating the existence of the contract.

The Court of Appeal upheld the primary judge's findings. The primary judge had found TMA Australia's main witness to be unreliable, and this assessment was critical. The court noted irregularities between the disputed emails and other undisputed emails, which cast doubt on their authenticity. Furthermore, the explanation for the absence of the emails from 100% Bottling Company's server, namely deletion prior to a cloud migration in 2017, was not relied upon by TMA Australia and was considered implausible in the context of the belated discovery of the hard copies. The court concluded that there was no basis to reject the primary judge's findings of fact, which were based on a proper assessment of the evidence and the commercial context.

The appeal was dismissed, and TMA Australia was ordered to pay the respondent's costs of the appeal.