Where contemporaneous delivery dockets and tax invoices identify a subsidiary as the supplier of goods, the parent company is not the contracting party merely because a credit agreement names the parent as a potential supplier or because the parent subsequently incurred debt collection costs. Subsequent conduct cannot retrospectively alter the identity of the contracting party as at the date of supply. A party that withholds a positive defence fatal to the opposing party's claim until after the close of evidence may be denied its costs of the trial under s 98 of the Civil Procedure Act 2005 (NSW), even if ultimately successful on the merits.
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