Charles Parsons & Co Pty Ltd v Express Publications Pty Ltd; Express Publications Pty Ltd v Charles Parsons & Co Pty Ltd (No 3) [2017] NSWSC 1086

Charles Parsons & Co Pty Ltd v Express Publications Pty Ltd; Express Publications Pty Ltd v Charles Parsons & Co Pty Ltd (No 3) [2017] NSWSC 1086

The cross-claim failed because Express/4WD Outdoor did not prove the critical fact that Parsons supplied fewer roof top tents and swags than Express/4WD Outdoor ordered. The evidence did not justify the alleged Type 1 Order totals; the Court could conclude only that 2,020 Type 1 Orders for roof top tents and 1,200 Type 1 Orders for swags were proved, while Parsons supplied more than those quantities. Because no breach was proved, Parsons was entitled to judgment on its claim and the cross-claim was dismissed.

Jurisdiction
Australia
Judgment Date
17 August 2017
Procedural Posture
Equity Commercial List Contractual Debt Claim and Cross Claim for Damages for Alleged Breach of Oral Distribution Agreement / Principal Judgment After Hearing
Outcome
Plaintiff entitled to judgment on its claim; cross-claim dismissed.
Legal Topics
['oral Distribution Agreement' 'implied Contractual Terms' 'supply Obligations' 'proof of Orders and Breach' 'novation' 'summary Evidence Under S 50 of the Evidence Act 1995 (nsw)']
['contract Law' 'evidence'] ['oral Distribution Agreement' 'implied Contractual Terms' 'supply Obligations' 'proof of Orders and Breach' 'novation' 'summary Evidence Under S 50 of the Evidence Act 1995 (nsw)']

Case Brief

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Procedural Posture

Equity Commercial List Contractual Debt Claim and Cross Claim for Damages for Alleged Breach of Oral Distribution Agreement / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Express/4WD Outdoor proved that between May 2013 and June 2014 Parsons supplied fewer roof top tents and swags than Express/4WD Outdoor ordered.' 'Whether the Oral Distribution Agreement included an implied term that Parsons would ensure secure and reliable supply of quality merchandise and keep sufficient stock on hand to ensure that orders placed by Express and 4WD Discounters were met.' 'Whether in May 2013 the Oral Distribution Agreement was varied or novated so as to substitute 4WD Outdoor for 4WD Discounters as a party.' 'Whether the written Distribution Agreement of 4 July 2013 affected the alleged Supply Obligation.']

Ratio Decidendi

The cross-claim failed because Express/4WD Outdoor did not prove the critical fact that Parsons supplied fewer roof top tents and swags than Express/4WD Outdoor ordered. The evidence did not justify the alleged Type 1 Order totals; the Court could conclude only that 2,020 Type 1 Orders for roof top tents and 1,200 Type 1 Orders for swags were proved, while Parsons supplied more than those quantities. Because no breach was proved, Parsons was entitled to judgment on its claim and the cross-claim was dismissed.

Court Disposition

Plaintiff entitled to judgment on its claim; cross-claim dismissed.

Orders

  • ['Parsons is entitled to judgment against Express, 4WD Outdoor and Mr Vella in the amounts of its claim.' "Express/4WD Outdoor's cross-claim must be dismissed." 'Counsel invited to bring in short minutes to give effect to the reasons.' 'The Court will hear any argument as to costs.']