Darrell Lea Chocolate Shops v Spanish Polish Shipping Co Inc (The “Katowice II”) (1990) 25 NSWLR 568

Facts: P (Darrell Lea Chocolate Shops) carried on business in NSW and purchased an expensive chocolate-making machine from a German company. The machine was damaged while being loaded onto D’s vessel in Germany. The German company undertook repairs on it. P claimed damages in tort against 3 Ds (D1: owner of vessel; D2: chartering company; D3: Spanish Polish Shipping/possessor of the vessel) for the extensive delay in the obtaining machinery.

Issue: Is P’s claim regarding damage covered by Sch 6(a)(i) or (ii)?

Note: This case was re Supreme Court Rules 1970, Pt 10, r 1(1)(e) which provides that originating process may be served outside Australia, where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring.

Held: It is not covered by (a)(i) as the place of the tort (when the machine was damaged) was not NSW, however, it is covered by (a)(ii) as P is a NSW company and damage was suffered by P in NSW.

Ratio: “damage” in Sch 6 (a)(ii) is much wider than “injury”; it encompasses detriment or disadvantage resulting from tortious act of D. The broad understanding of “damage” in Sch 6 (a)(ii) is very P-friendly.