Boral Resources (NSW) Pty Ltd v Pacific National Services Pty Ltd

Medium Neutral Citation: Boral Resources (NSW) Pty Ltd v Pacific National Services Pty Ltd [2025] NSWSC 887

Hearing dates: On the papers

Date of orders: 8 August 2025

Decision date: 08 August 2025

Jurisdiction: Equity - Commercial List

Before: Hammerschlag CJ in Eq

Decision: Proceedings dismissed. The defendant pay the plaintiff’s costs.

Catchwords: COSTS – proceedings involve two separate claims one for delivery of rolling stock under a call option and the other for the delivery up of documentation which the defendant agreed to provide – the defendant capitulates on the first claim and agrees to deliver the rolling stock and over time delivers the documentation, or agrees to, rendering the relief sought by the plaintiff otiose – plaintiff seeks its costs of the proceedings – defendant concedes that it should pay the plaintiff’s costs of the rolling stock issue and that each party should pay their own on the documentation issue – HELD – the plaintiff obtained everything it wanted – not appropriate to determine costs on the basis of different issues – defendant to pay the plaintiff’s costs

Category: Costs

Parties: Boral Resources (NSW) Pty Ltd (Plaintiff)
Pacific National Services Pty Ltd (Defendant)

Representation: Counsel:
R Dick SC / T Boyle (Plaintiff)
H El-Hage SC / M E Parker (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
Schweikert Harris (Defendant)

File Number(s): 2025/00262650

Publication restriction: Nil

JUDGMENT

Introduction

1. The plaintiff, Boral Resources (NSW) Pty Ltd (Boral), supplies construction material and building products. The defendant, Pacific National Services Pty Ltd (Pacific National), is a rail freight operator. Both are substantial corporations.

2. They entered into a suite of contracts under which Pacific National provided rail transport services to Boral, including making available the necessary rolling stock. One of the contracts, called the Services Contract Peppertree Quarry and Dunmore Quarry to Maldon, Enfield and St Peters (the Contract), gave Boral a call option to acquire from Pacific National a large number of freight railway carriages (W****agons) which had been designed and manufactured at the instance of Pacific National for the purpose of being used to carry Boral products.

3. The Contract also provided for Pacific National to give to Boral various categories of documentation relevant to the Wagons and a refuelling facility.

4. The Contract defines the Wagons Call Option as “the option granted by the Services Contractor to the Principal to purchase any or all of the Wagons on the terms set out in this [Services] Contract”.

5. There is a definition of Wagons which covers the Wagons earlier referred to.

6. Boral exercised the option so as to acquire 114 Wagons.

7. Subsequently, the parties agreed that four Wagons should be excluded because they were damaged. Boral accepted that only 110 Wagons needed to be delivered. But Pacific National took the position that it was only going to deliver 98 Wagons on the basis that 12 Wagons were “spare wagons” (not a term to be found anywhere in the Contract) and therefore not covered by the Wagons Call Option (the Wagons Issue). There was no issue, it seems, that the spare wagons were Wagons as defined in the Contract. If there was a constructional choice to be made, it is not one which is readily apparent.

8. Boral also said that Pacific National had not delivered documentation it was obliged under the Contract to deliver (the Documentation Issue).

9. Boral started the proceedings claiming delivery of the Wagons and the documentation.

10. Shortly before the trial (on 1 August 2025) and no doubt properly advised, Pacific National capitulated and agreed to deliver 110 Wagons and undertook to provide all outstanding documentation.

11. The substantive relief sought by Boral, thereby became otiose.

12. The only issue left for determination is costs.

13. Both parties have provided written submissions. Pacific National’s submissions include the proffering of the following undertaking to the Court (which Boral accepts):

14. This Undertaking adopts the defined terms used in the Commercial List Statement filed by the Plaintiff on 9 July 2025.

15. Pacific National Services Pty Ltd (ACN 052 134 362) undertakes that it will:

(a) convey 110 Wagons to Boral Resources (NSW) Pty Ltd (ACN 000 756 507) (Boral) on 18 August 2025 pursuant to the Wagon Exercise Notice in accordance with clause 17 of the PN Services Contract; and (b) provide to Boral the remaining additional documents in relation to the Wagons identified in paragraph 17 of Paul Pereboeff’s affidavit filed 30 July 2025 by 8 August 2025; and (c) provide to Boral any additional inspection and maintenance records for the period 1 July to 18 August 2025 with respect to the Wagons and Refuelling Facility on 18 August 2025.

14. Boral seeks its costs of the proceedings on the ordinary basis.

15. Pacific National accepts that Boral should have its costs in relation to the Wagons Issue, but it says that Boral’s claim on the Documentation Issue was unnecessary and that each party should pay its own costs in relation to that part of the case. It argues that this should be dealt with by Boral having 50% of its costs.

16. I uphold Boral’s position. It has succeeded in getting the Wagons (by way of a capitulation by Pacific National) and the documentation has either been delivered or is the subject of an undertaking that it be delivered. Pacific National has on the other hand, it seems, achieved nothing.

17. It is inappropriate for the Court, otherwise, to delve into the merits of the Documentation Issue to determine costs. In any event, ordinarily the Court does not award costs on an issue-by-issue basis. This is not a case where it should do so. Boral has got all of what it came to Court to get. Costs should follow the event.

18. I make the following orders:

19. The proceedings are dismissed.

20. The defendant is to pay the plaintiff’s costs.

21. Liberty to apply.

22. The Court notes the undertaking by the defendant set out in paragraph 13 of this judgment.

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