This matter involved claims in contract in circumstances where a contract between United Resource Management Pty Ltd and Kimbricki Environmental Enterprises Pty Ltd (the KES Agreement) had terminated with that termination having the effect of terminating a subsequent contract between Par Recycling Services and United Resource Management Pty Ltd (the Supply Agreement). Further, a significant question for consideration was whether a further contract to share revenue from the operation and participation in a container deposit scheme was brought about by misleading or deceptive conduct by silence. This question, together with the following issues were among those that were considered by the Court: First, whether a common mistake had been made to the effect that the Supply Agreement remained on foot; second, whether an implied contract had been made and if so, who were the parties and what were its terms; third, what impact did the termination of the Supply Agreement have on any subsequent agreement between Par Recycling Services and United Resource Management Pty Ltd; fourth, whether loss or damage was suffered as a result of mistake; fifth, whether the parties became bound by an implied agreement as the result of misleading or deceptive conduct; sixth, whether loss or damage was caused by misleading or deceptive conduct; seventh, whether certain evidence was admissible as expert opinion evidence; eighth, whether Jones v Dunkel inferences should be drawn.
An appeal was heard on 13 and 14 April 2023 in the NSW Court of Appeal in relation to the decision at first instance. Judgment on the appeal is to be found at United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 (5 October 2023).
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