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

[2013] NSWCA 229

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Variation of orders after judgment
4. › Application to vary orders of Court of Appeal
5. › Whether orders gave rise to unintended consequences
6. › Whether variation should be granted
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.17
1. Practice and Procedure
2. › Judgments and orders
3. › Recall of reasons
4. › Whether reasons should be recalled to clarify scope of remitter
5. › Inherent jurisdiction
1. Practice and Procedure
2. › Appeal
3. › Scope of appeal
4. › Whether issue raised within grounds of appeal
5. › Whether broadly framed ground of appeal encompassed challenge to specific component of damages award
1. Practice and Procedure
2. › Appeal
3. › Procedural fairness on appeal
4. › Whether concession made during oral argument
5. › Whether party denied opportunity to be heard
6. › Whether counsel's statement that he did not wish to be heard further constituted abandonment of submission

Quick Take

A broadly framed ground of appeal challenging the evidentiary basis for a damages calculation may encompass challenges to specific components of that calculation even if those components were not expressly identified in the ground. A statement by counsel that they do not wish to be heard further on a point is not necessarily an express abandonment or withdrawal of a submission on that point. Where a point was arguably not raised at first instance, prejudice to the opposing party may be cured by permitting the tender of additional evidence on the motion to vary.