Factory 5 Pty Ltd v State of Victoria [2010] FCA 1229

Factory 5 Pty Ltd v State of Victoria [2010] FCA 1229

A binding fourth class Masters v Cameron contract was made on 23 December 2004, but the concessionaire as manufacturer clause did not oblige M2006 to allow Factory 5 to manufacture or appoint an alternative licensee except at M2006’s absolute discretion, exercised by reference to benchmarks but not price as requested by Factory 5. M2006 did not breach this clause. Although M2006 repudiated the contract, Factory 5 was not ready and willing to perform and did not validly accept repudiation; both parties abandoned the contract by mutual consensus. Factory 5 is not entitled to loss or damage.

Parties
Applicant: Factory 5 Pty Ltd (in liquidation) (ACN 112 313 238); First Respondent: State of Victoria; Second Respondent: Madeline T Moulis Pty Ltd (trading as MTM Retail Marketing) (ACN 069 069 889); Third Respondent: Madelaine Cohen
Jurisdiction
Australia
Judgment Date
11 November 2010
Procedural Posture
Application / Final Judgment
Outcome
Application dismissed
Legal Topics
Formation of Contract, Repudiation, Acceptance of Repudiation, Termination of Contract, Masters V Cameron Classification, Concessionaire as Manufacturer Clause, Trade Practices Act
Contract Law Formation of Contract Repudiation Acceptance of Repudiation Termination of Contract Masters V Cameron Classification Concessionaire as Manufacturer Clause Trade Practices Act

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Parties

Factory 5 Pty Ltd (in liquidation) (ACN 112 313 238)

Applicant

State of Victoria

First Respondent

Madeline T Moulis Pty Ltd (trading as MTM Retail Marketing) (ACN 069 069 889)

Second Respondent

Madelaine Cohen

Third Respondent

Procedural Posture

Application / Final Judgment

Legal Issues

  1. 1 Was a binding contract made between Factory 5 Pty Ltd and M2006?
  2. 2 What was the correct classification of the contract under Masters v Cameron?
  3. 3 What were the terms of the concessionaire as manufacturer clause?

Ratio Decidendi

A binding fourth class Masters v Cameron contract was made on 23 December 2004, but the concessionaire as manufacturer clause did not oblige M2006 to allow Factory 5 to manufacture or appoint an alternative licensee except at M2006’s absolute discretion, exercised by reference to benchmarks but not price as requested by Factory 5. M2006 did not breach this clause. Although M2006 repudiated the contract, Factory 5 was not ready and willing to perform and did not validly accept repudiation; both parties abandoned the contract by mutual consensus. Factory 5 is not entitled to loss or damage.

Court Disposition

Application dismissed

Orders

  • The application be dismissed