Whyked Pty Limited trading as Ezysend v Yahoo Australia and New Zealand Pty Limited [2006] NSWSC 650

Whyked Pty Limited trading as Ezysend v Yahoo Australia and New Zealand Pty Limited [2006] NSWSC 650

Summary dismissal was refused because it was arguable that the assigned benefit was in a different category from rights under the Agreement and therefore might not be prohibited by clause 14.7, and because whether the plaintiff had a genuine commercial interest in enforcing the contractual claim should be determined at trial. However, the TPA, Fair Trading Act and negligent misrepresentation claims were struck out as non-assignable tort or tort-analogous claims, and the joint venture and fiduciary duty claim was struck out because the Agreement was the entire agreement and expressly provided that no joint venture relationship was intended or created.

Jurisdiction
Australia
Judgment Date
30 June 2006
Procedural Posture
Commercial List Proceedings Seeking Damages and Other Relief Arising Out of Alleged Breaches of a Service and Promotion Agreement / Notice of Motion for Summary Dismissal Or, Alternatively, Strike Out of Parts of the Commercial List Statement
Outcome
Summary dismissal refused. Paragraphs 12 to 27 of the Commercial List Statement struck out.
Legal Topics
['assignment of Contractual Rights' 'contractual Prohibition on Assignment' 'bare Rights of Action' 'genuine Commercial Interest' 'summary Dismissal' 'strike Out' 'unconscionable Conduct' 'misrepresentation' 'joint Venture and Fiduciary Relationship']
['contract Law' 'equity' 'trade Practices' 'civil Procedure'] ['assignment of Contractual Rights' 'contractual Prohibition on Assignment' 'bare Rights of Action' 'genuine Commercial Interest' 'summary Dismissal' 'strike Out' 'unconscionable Conduct' 'misrepresentation' 'joint Venture and Fiduciary Relationship']

Case Brief

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Procedural Posture

Commercial List Proceedings Seeking Damages and Other Relief Arising Out of Alleged Breaches of a Service and Promotion Agreement / Notice of Motion for Summary Dismissal Or, Alternatively, Strike Out of Parts of the Commercial List Statement

Legal Issues

  1. 1 ["Whether the proceedings should be summarily dismissed because the assignments to the plaintiff were ineffective due to a contractual prohibition on assignment without the defendant's prior consent." 'Whether the plaintiff had a genuine commercial interest sufficient to support assignment of a contractual cause of action rather than an impermissible assignment of a bare right of action.' 'Whether claims under the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (NSW), and negligent misrepresentation were assignable to the plaintiff.' 'Whether the pleaded joint venture and fiduciary duty claim should be struck out in light of the terms of the Agreement.']

Ratio Decidendi

Summary dismissal was refused because it was arguable that the assigned benefit was in a different category from rights under the Agreement and therefore might not be prohibited by clause 14.7, and because whether the plaintiff had a genuine commercial interest in enforcing the contractual claim should be determined at trial. However, the TPA, Fair Trading Act and negligent misrepresentation claims were struck out as non-assignable tort or tort-analogous claims, and the joint venture and fiduciary duty claim was struck out because the Agreement was the entire agreement and expressly provided that no joint venture relationship was intended or created.

Court Disposition

Summary dismissal refused. Paragraphs 12 to 27 of the Commercial List Statement struck out.

Orders

  • ['Order 1 in the Notice of Motion refused.' 'Paragraphs 12 to 27 of the Commercial List Statement are struck out.' 'The plaintiff is to file an Amended Summons and Amended Commercial List Statement by 6 July 2006.' 'The matter is listed for directions on 7 July 2006.' 'If the parties are unable to agree on a costs...