Blackmores Ltd v Jestins Enterprises Pty Ltd [2020] NSWSC 1177

Blackmores Ltd v Jestins Enterprises Pty Ltd [2020] NSWSC 1177

Judgment was entered for Blackmores because the debt was not disputed and the cross-claim failed. The Court found that Pharmadeal was not substituted for Jestins as contracting party, the Trading Terms were not varied in the alleged manner, and the alleged representations were not made. Even if representations had been made, the cross-claimants did not prove that any contravention caused the claimed loss, the Settlement Deed released claims connected with the unpaid invoices and trade accounts, and the expert evidence did not prove quantum. Blackmores was therefore entitled to the outstanding principal plus interest, and the cross-claim was dismissed.

Jurisdiction
Australia
Judgment Date
02 September 2020
Procedural Posture
Equity Commercial List; Principal Judgment in Contract and Australian Consumer Law Proceedings With Cross Claim / Hearing of Plaintiff's Claim for Debt and Defendants' Cross Claim
Outcome
Judgment for the plaintiff against the defendants; cross-claim dismissed.
Legal Topics
['recovery of Unpaid Invoices' 'contractual Variation' 'guarantee and Indemnity' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'deed of Release and Discharge' 'expert Evidence' 'proof of Loss and Damage' 'costs']
['contract Law' 'australian Consumer Law' 'evidence' 'civil Procedure'] ['recovery of Unpaid Invoices' 'contractual Variation' 'guarantee and Indemnity' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'deed of Release and Discharge' 'expert Evidence' 'proof of Loss and Damage' 'costs']

Case Brief

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Procedural Posture

Equity Commercial List; Principal Judgment in Contract and Australian Consumer Law Proceedings With Cross Claim / Hearing of Plaintiff's Claim for Debt and Defendants' Cross Claim

Legal Issues

  1. 1 ['Whether the Trading Terms were varied so that invoices were payable 30 days from the end of the month in which goods were delivered rather than 30 days from the end of the month of invoice.' 'Whether Pharmadeal International Pty Ltd was substituted for Jestins Enterprises Pty Ltd as the contracting party in relation to the Export Account.' 'Whether Blackmores made the Varied Trading Term Representation, the Marketing Rebate Representation, the EPO Representation, or the Second Marketing Rebate Representation.' 'Whether any representations made were misleading or deceptive under s 18 of the Australian Consumer Law or whether departure from them was unconscionable under s 21 of the Australian Consumer Law.' 'Whether Jestins or Pharmadeal proved loss or damage, including the claimed value of the Blackmores-related business.' 'Whether the Settlement Deed released or barred the cross-claim, including claims framed under the Australian Consumer Law.' 'Whether the expert accounting evidence of Mr Shulman established the alleged quantum of loss.']

Ratio Decidendi

Judgment was entered for Blackmores because the debt was not disputed and the cross-claim failed. The Court found that Pharmadeal was not substituted for Jestins as contracting party, the Trading Terms were not varied in the alleged manner, and the alleged representations were not made. Even if representations had been made, the cross-claimants did not prove that any contravention caused the claimed loss, the Settlement Deed released claims connected with the unpaid invoices and trade accounts, and the expert evidence did not prove quantum. Blackmores was therefore entitled to the outstanding principal plus interest, and the cross-claim was dismissed.

Court Disposition

Judgment for the plaintiff against the defendants; cross-claim dismissed.

Orders

  • ['Judgment for the plaintiff against the defendants in the sum of $1,750,096.76;' 'The cross-claim be dismissed;' "The defendants pay the plaintiff's costs of the proceedings (including the cross-claim);" "Liberty to apply to vary order (3) within 21 days' of the date of this judgment;" "Liberty to apply to the...