Origin Energy LPG Ltd v Bestcare Foods Ltd

[2012] NSWCA 322

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Origin Energy LPG Ltd v Bestcare Foods Ltd [2012] NSWCA 322

Hearing dates:

7 and 21 August, 4 September and then on the papers

Decision date:

11 October 2012

Before:

Allsop P

Decision:

1. Dismiss the notice of motion for expedition with no order as to costs, but grant leave to Bestcare to seek to revive the application after the liability appeal.

2. Stay the orders of the Supreme Court giving judgment in favour of Bestcare for $91,219,465, until further order.

3. Costs of the summons for a stay be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INTERLOCUTORY ORDERS - No question of principle - stay of judgment - long and complex trial - separate judgments on liability and quantum - adoption of referee's report on quantum - large sum of damages ordered - liability appeal hearing expedited - real and substantial issues on appeal - respondent in administration - stay ordered

Category:

Interlocutory applications

Parties:

Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) (First Appellant)
Origin Energy Retail Ltd (Second Appellant)
Bestcare Foods Ltd (First Respondent)
Bestcare Foods (Sales) Pty Ltd (Second Respondent)

Representation:

E G Romaniuk (Appellants)
M L Williams SC, D S Weinberger, S A Lawrance, (Respondents)
DibbsBarker (Appellants)
McCabes Lawyers (Respondents)

File Number(s):

2012/223427

 Decision under appeal 

Citation:

[2012] NSWSC 670

Date of Decision:

2012-06-15 00:00:00

Before:

Nicholas J and McDougall J

File Number(s):

2005/270917

Judgment

1. ALLSOP P: On 15 June 2012, a judge of the Commercial List (McDougall J), having substantially adopted the report of a referee (Mr Rolfe QC), gave judgment for Bestcare Foods Ltd ("Bestcare") against Origin Energy LPG Ltd ("Origin") for $91,219,465. This sum constituted the damages resulting from the destruction by explosion and fire of Bestcare's pet food factory on 25 January 2003. The explosion was caused by a gas leak. In a liability hearing that ran for over 50 days before Nicholas J, Origin was found liable. Quantum was referred to a referee (Mr Rolfe QC).

1. By summons filed 18 July 2012, Origin sought a stay. By notice of motion filed 24 July 2012, Bestcare sought expedition.

1. The matter came before me on 7 and 21 August and 4 September. I made case management orders on those days, dealing informally with expedition and the stay.

1. No orders for the moment need to be made on the application for expedition. A hearing for four days of the appeal from the liability judgment of Nicholas J has been set down for Monday, 5 November 2012.

1. There are two aspects to the stay. The first is as between the insurers for the parties. Bestcare's insurer will seek from the liability insurer of Origin the payment of the funds that it has expended indemnifying Bestcare. It is common ground that these entities do not need or want any order of the Court to assist in the resolution of their rights. They will enter or have entered appropriate arrangements.

1. The second is between Bestcare and Origin. Bestcare opposes a stay. In my view a stay should be granted.

1. The general principles are not in doubt. An applicant must identify circumstances that warrant a departure from the general rule that the judgment below should be presumed correct and enforceable.

1. Whilst Origin at the time of making the application had not illuminated with any clarity the issues, it has now done so, in particular in relation to liability. I have read the judgment of Nicholas J, the submissions of Origin on liability and the notice of appeal on liability. It suffices to say (without having formed any view as to merits) that there are real and significant issues for debate which, if successful, may see the judgment set aside.

1. Further, Bestcare is in administration. If large sums are paid they will go to pay off creditors and thereafter to members. No offer of security from any of those members or from the administrator or creditors was forthcoming.

1. The appeal on liability has effectively been expedited. A quantum appeal by reference to the adoption of the referee's report may be heard next year. The question of the stay can be re-agitated after a decision in the liability appeal.

1. The orders that I would make are:

1.Dismiss the notice of motion for expedition with no order as to costs, but grant leave to Bestcare to seek to revive the application after the liability appeal.

2.Stay the orders of the Supreme Court giving judgment in favour of Bestcare for $91,219,465, until further order.

3.Costs of the summons for a stay be costs in the appeal.