Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd [1999] FCA 1299

Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd [1999] FCA 1299

The applicants failed because the Court was not satisfied that the alleged gross profit promise or other operative oral representations were made, relied upon, or breached, and no implied term guaranteeing about $11,000 gross weekly profit satisfied the Codelfa requirements. Dairy Vale's 7 August 1996 notice was not a valid cl 9.1(a) notice and the 9 September 1996 termination was invalid, but Tirango proved no substantial damages because Dairy Vale could and would have lawfully terminated in any event, leaving only a $5,000 credit for milk. On the cross-claim Dairy Vale proved Tirango's indebtedness for supplied products, less that credit, but did not prove contractual interest. The...

Jurisdiction
Australia
Judgment Date
15 September 1999
Procedural Posture
Trade Practices and Contract Proceeding With Cross Claim / Final Judgment
Outcome
Applicants' claim dismissed; Dairy Vale succeeded on the cross-claim against Tirango only; cross-claim against the second and third cross-respondents dismissed.
Legal Topics
['alleged Misleading or Deceptive Representations Under S 52 Trade Practices Act 1974 (cth)' 'exclusive Milk Distribution Agreement' 'entire Agreement Clause' 'implied Contractual Terms' 'wrongful Termination' 'guarantee and Rectification' 'contractual Interest and Proof of Interest Rate']
['trade Practices' 'contract' 'practice and Procedure'] ['alleged Misleading or Deceptive Representations Under S 52 Trade Practices Act 1974 (cth)' 'exclusive Milk Distribution Agreement' 'entire Agreement Clause' 'implied Contractual Terms' 'wrongful Termination' 'guarantee and Rectification' 'contractual Interest and Proof of Interest Rate']

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Procedural Posture

Trade Practices and Contract Proceeding With Cross Claim / Final Judgment

Legal Issues

  1. 1 ['Whether Dairy Vale made alleged oral representations, including a gross profit promise, that induced Tirango to enter the wholesale vendor agreement and induced guarantees.' 'Whether the alleged representations were terms of the agreement, terms of a collateral contract, warranties, or actionable misrepresentations.' 'Whether a term should be implied that Tirango would derive and continue to derive a gross weekly profit in the order of $11,000 per week.' 'Whether Dairy Vale validly terminated the agreement under cl 9.1(a) after giving a notice of breach that misstated the applicable trading terms.' 'Whether Tirango proved damages from the invalid termination.' 'Whether Dairy Vale proved the amount owing on its cross-claim and its entitlement to contractual interest.' 'Whether the guarantee should be rectified by substituting cl 4.15 for cl 3.15.']

Ratio Decidendi

The applicants failed because the Court was not satisfied that the alleged gross profit promise or other operative oral representations were made, relied upon, or breached, and no implied term guaranteeing about $11,000 gross weekly profit satisfied the Codelfa requirements. Dairy Vale's 7 August 1996 notice was not a valid cl 9.1(a) notice and the 9 September 1996 termination was invalid, but Tirango proved no substantial damages because Dairy Vale could and would have lawfully terminated in any event, leaving only a $5,000 credit for milk. On the cross-claim Dairy Vale proved Tirango's indebtedness for supplied products, less that credit, but did not prove contractual interest. The...

Court Disposition

Applicants' claim dismissed; Dairy Vale succeeded on the cross-claim against Tirango only; cross-claim against the second and third cross-respondents dismissed.

Orders

  • ['The claim of the applicants is dismissed.' 'On the cross-claim against the first cross-respondent, judgment in favour of the cross-claimant for $247,497.74.' 'The cross-claim against the second and third cross-respondents is dismissed.']