Eastlings Pty Ltd v Calidu Import Export Pty Ltd (No 2) [2021] NSWSC 316

Eastlings Pty Ltd v Calidu Import Export Pty Ltd (No 2) [2021] NSWSC 316

The evidence did not establish, to the requisite standard, that the defendants engaged in illegal importation of undeclared alcohol or misleading/deceptive conduct. The expert/statistical evidence was inconclusive. Therefore, the misleading or deceptive conduct claims are dismissed. The defendants breached the Restraint Deed by importing wine from Portugal for on-sale and exporting alcohol during the restraint period; judgment is given for the plaintiff against the second and third defendants for profits made from those breaches.

Parties
Plaintiff: Eastlings Pty Ltd; First Defendant: Calidu Import Export Pty Ltd; Second Defendant: Joseph Merlo; Third Defendant: Grace Christine Merlo; Fourth Defendant: Calidu Pty Ltd
Jurisdiction
Australia
Judgment Date
01 April 2021
Procedural Posture
Civil / Trial and Judgment
Outcome
Partly in favour of plaintiff on breach of covenant claims; otherwise dismissed
Legal Topics
Misleading or Deceptive Conduct, Restraint of Trade, Contract, Damages, Remedies
Consumer Law Commerce Misleading or Deceptive Conduct Restraint of Trade Contract Damages Remedies

Case Brief

Summary, issues, holding and outcome

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Parties

Eastlings Pty Ltd

Plaintiff

Calidu Import Export Pty Ltd

First Defendant

Joseph Merlo

Second Defendant

Grace Christine Merlo

Third Defendant

Calidu Pty Ltd

Fourth Defendant

Procedural Posture

Civil / Trial and Judgment

Legal Issues

  1. 1 Whether defendants engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law
  2. 2 Whether defendants breached the Restraint Deed by importing/exporting alcohol in competition with the plaintiff
  3. 3 Whether the evidence established illegal importation of undeclared alcohol by the defendants

Ratio Decidendi

The evidence did not establish, to the requisite standard, that the defendants engaged in illegal importation of undeclared alcohol or misleading/deceptive conduct. The expert/statistical evidence was inconclusive. Therefore, the misleading or deceptive conduct claims are dismissed. The defendants breached the Restraint Deed by importing wine from Portugal for on-sale and exporting alcohol during the restraint period; judgment is given for the plaintiff against the second and third defendants for profits made from those breaches.

Court Disposition

Partly in favour of plaintiff on breach of covenant claims; otherwise dismissed

Orders

  • Judgment for the plaintiff as against the second and third defendants in the amount of $67,594.49 plus interest (from the date of the relevant breaches) for breach of the covenant contained in the Restraint Deed by virtue of the importation in or about August 2014 and April 2015 of wine from Portugal for on-sale and...
  • Otherwise dismiss the plaintiff's claims.