Our proprietary software recently alerted us to three NSW Caselaw decisions (20 May 2020, 6 Oct 2020, 18 Mar 2021) relating to one matter where entities related to Bingo Industries are a defendant.
The plaintiff, GC Group Company Pty Ltd, was a subcontractor in a residential subdivision at Albion Park engaged to design and construct a retaining wall. GC Group ordered "recycled aggregate" from the defendants, Bingo Holdings Pty Ltd and Bingo Recycling Pty Ltd (together, "Bingo"), which it used as backfill.
GC Group alleges that the aggregate supplied by Bingo was contaminated and that, as a result, GC Group was obliged to effect substantial reconstruction works at its own cost and has thereby incurred loss and damage.
In its Technology and Construction List Response, Bingo asserts that any contamination in the aggregate came from materials supplied to it by its "Customers" and, perhaps, from "SCE Recycling".
In its proposed Response, Bingo sought to plead that any contamination in the aggregate came from materials supplied to it by one or other of 710 "Customers" who delivered waste generated from building and demolition activities to Bingo's recycling facilities.
Thus, in the proposed Response Bingo asserts:
"[Bingo says] that between 1 May 2017 and 1 July 2017 each of the persons identified in Annexure A to the affidavit of Dorian Kratsas sworn on 17 July 2020 (the Customers) was the person responsible for delivering waste to [Bingo's waste transfer and processing facility at Kembla Grange] generated from building and demolition activities … by way of a motor vehicle bearing the registration number listed in Annexure A".
Mr Kratsas is the solicitor for Bingo. The annexure to Mr Kratsas's affidavit lists 710 motor vehicle registration numbers and the name of the person or company recorded at Transport for New South Wales as the registered owner of those vehicles.
In his affidavit, Mr Kratsas states that the named parties are "Customers who, in the period 1 May 2017 to 1 July 2017 delivered waste to [Bingo's facility] generated from building and demolition activities". However, the list is in fact no more than a list of the registration numbers of vehicles "from information held by [Bingo] in respect of the Customers" being "the registration number of at least one vehicle associated with that Customer" to which has been added "information provided by Transport New South Wales … in response to a subpoena issued at [Bingo's] request"
Decision - Leave should be refused (6 Oct 2020)
Bingo "does not identify customers who delivered building waste to its facility and assert that it is a concurrent wrongdoer with one or more of those customers. It does no more than identify 710 customers whose vehicles attended its facility.
In those circumstances, I cannot see how Bingo can allege that any one of the those 710 customers - let alone "each" of them  - "is" a person whose acts or omissions caused the loss the subject of GC Group's claim and thus a "concurrent wrongdoer" for the purpose of s 34(2) of the Act.
Bingo does not and cannot know this. And without knowing this, Bingo cannot establish, and in my opinion should not be permitted to assert, that any of the 710 named parties is a concurrent wrongdoer."
On 16 November 2021, Bingo filed a notice of motion. Bingo made a further application to amend its Response to re-plead an apportionable liability defence. Bingo said they had identified which of the 710 customers had "actually delivered B&D Waste to the facility".
This decision was published on 17 March 2021.
Decision - (17 March 2021)
"Now, in addition to identifying such parties in Part B of the Schedule, Bingo identifies… parties it alleges actually delivered B&D Waste (building and demolition waste) to the facility. For present purposes, I must assume that Bingo can establish this as a matter of fact."
Despite this, the Judge "concluded that Bingo should not be given leave to amend its Response as it proposes."
The matter is ongoing and the next hearing is listed for 26 March 2021.
Published: 23 March 2021
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