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On the Balance of Probabilities

Walter MacCallum, Joe Denina, Chantelle Hammond and Lauren Jones

Russell Kennedy Lawyers recently achieved a successful outcome in the District Court of NSW case of TMA Australia Pty Limited v 100% Bottling Company [2023] NSWDC 231.

The judgment which can be accessed here serves as a valuable reminder that the resolution of a legal dispute is not always a simple choice between the plaintiff and defendant's conflicting narratives and that satisfying the burden of proof that a plaintiff bears in civil cases (on the balance of probabilities) is not always an easy task.


In this matter, the plaintiff claimed to have entered into a contract with the defendant for the purchase and supply of labels for bottled oil. The alleged contract was claimed to have been formed through a series of email exchanges between the parties' employees in 2015 and eventually leading to the two emails that the plaintiff alleged confirmed the offer and acceptance.

The two crucial emails only existed in hardcopy form and neither party could locate or produce any electronic copies. The defendant denied a contract had been formed and denied the existence of the email exchange, pointing out several discrepancies in the hard copy versions of the emails produced by the plaintiff.

The discrepancies included what the defendant alleged were cut and pasted signature sign-offs and formatting that was inconsistent with other contemporaneous email exchanges between the parties.

Newlinds DCJ, explained that the conflicting arguments by the parties as to the existence of the emails left him unconvinced that the plaintiff had met its onus to prove its case on the balance of probabilities.

Reasons for the judgment

His Honour stated, "Does that mean that I cannot decide between the two conflicting possibilities? I am not sure. All I can say is that I have not been persuaded by the plaintiff that the email exchange probably occurred."

The plaintiff was unsuccessful on this basis and as such the claim was dismissed with an order for payment of the defendant’s costs.

The judgment further confirms that the burden of adducing evidence that suggests a reasonable possibility that the matter exists, rests with the party bringing the claim and that the Court must be satisfied; on the balance of probabilities, that one case is more plausible than the other.

We are here to help

If you would like to speak to a member of our Dispute Resolution team at Russell Kennedy Lawyers, please contact Walter MacCallum, Joe Denina or Chantelle Hammond of our Dispute Resolution team.

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