A1 Chemicals Pty Limited v Loremo Pty Limited [2016] NSWCA 19

A1 Chemicals Pty Limited v Loremo Pty Limited [2016] NSWCA 19

The appeal was dismissed except to set aside the original damages award and substitute a lower figure agreed by the parties due to calculation error; the trial judge's acceptance of oral evidence on gross profit margin was open in the absence of contradiction or a call for production of documents. The trial judge did not err in finding existence of a distribution agreement or in identifying Twin as a 'Cyndan Distributor' for purposes of the Deed. The restraint of trade arguments were not pressed or found dispositive. Damages must be assessed only to the date of hearing and according to the agreed method proposed by the parties.

Parties
Appellant: A1 Chemicals Pty Limited; First Respondent: Loremo Pty Limited; Second Respondent: Hampic Pty Limited
Jurisdiction
Australia
Judgment Date
24 February 2016
Procedural Posture
Appeal / Judgment After Hearing of Appeal
Outcome
Appeal allowed in part (to correct damages calculation); otherwise dismissed.
Legal Topics
Restraint of Trade, Interpretation of Settlement Deeds, Assessment of Damages, Findings of Fact on Documentary Vs Oral Evidence, Submissions Not Taken Below, Breach of Contract
Contract Law Civil Procedure Restraint of Trade Interpretation of Settlement Deeds Assessment of Damages Findings of Fact on Documentary Vs Oral Evidence Submissions Not Taken Below Breach of Contract

Case Brief

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Parties

A1 Chemicals Pty Limited

Appellant

Loremo Pty Limited

First Respondent

Hampic Pty Limited

Second Respondent

Procedural Posture

Appeal / Judgment After Hearing of Appeal

Legal Issues

  1. 1 Whether findings of fact unsupported by primary documents may be accepted
  2. 2 Whether counsel can raise new points or objections for the first time on appeal
  3. 3 Whether operation of restraint in the Deed was contrary to public policy or constituted restraint of trade

Ratio Decidendi

The appeal was dismissed except to set aside the original damages award and substitute a lower figure agreed by the parties due to calculation error; the trial judge's acceptance of oral evidence on gross profit margin was open in the absence of contradiction or a call for production of documents. The trial judge did not err in finding existence of a distribution agreement or in identifying Twin as a 'Cyndan Distributor' for purposes of the Deed. The restraint of trade arguments were not pressed or found dispositive. Damages must be assessed only to the date of hearing and according to the agreed method proposed by the parties.

Court Disposition

Appeal allowed in part (to correct damages calculation); otherwise dismissed.

Orders

  • Order 1 made on 26 June 2015 set aside and replaced with judgment for Loremo in the sum of $199,923.59.
  • Appeal otherwise dismissed.