Vok Beverages Pty Ltd v Diageo Brands BV [2014] NSWSC 1090

Vok Beverages Pty Ltd v Diageo Brands BV [2014] NSWSC 1090

The proposed amendments were not permitted because they did not disclose an arguable case, as the additional terms contended for by Vok (to exclude certain overhead and indirect costs from the Transfer Price) were inconsistent with the express definition of Transfer Price in the contract and did not meet the...

Source-derived case information.

Parties
Plaintiff: Vok Beverages Pty Ltd (ACN 100 599 362); First Defendant: Diageo Brands BV; Second Defendant: Diageo Australia Ltd (ACN 004 167 720); Third Defendant: Diageo Scotland Ltd; Fourth Defendant: Diageo North America Inc; Fifth Defendant: Ursus Vodka Holding NV; Sixth Defendant: The "Old Bushmills" Distillery Co. Limited
Jurisdiction
Australia
Judgment Date
13 August 2014
Procedural Posture
Civil Application (procedural Ruling) / Application for Leave to Amend Commercial List Statement and for Discovery
Outcome
Plaintiff's application for leave to amend Commercial List Statement and for related discovery dismissed.
Legal Topics
Pleadings, Amendments to Pleadings, Discovery, Implied Contractual Terms, Case Management
Civil Procedure Contract Law Pleadings Amendments to Pleadings Discovery Implied Contractual Terms Case Management

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Parties

Vok Beverages Pty Ltd (ACN 100 599 362)

Plaintiff

Diageo Brands BV

First Defendant

Diageo Australia Ltd (ACN 004 167 720)

Second Defendant

Diageo Scotland Ltd

Third Defendant

Diageo North America Inc

Fourth Defendant

Ursus Vodka Holding NV

Fifth Defendant

The "Old Bushmills" Distillery Co. Limited

Sixth Defendant

Procedural Posture

Civil Application (procedural Ruling) / Application for Leave to Amend Commercial List Statement and for Discovery

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to file a further amended Commercial List Statement to advance new claims and for related discovery.
  2. 2 Whether the proposed amendments raise at least an arguable case.
  3. 3 Whether permitting the amendments is consistent with just, quick and cheap resolution of proceedings under case management principles.

Ratio Decidendi

The proposed amendments were not permitted because they did not disclose an arguable case, as the additional terms contended for by Vok (to exclude certain overhead and indirect costs from the Transfer Price) were inconsistent with the express definition of Transfer Price in the contract and did not meet the requirements for implied terms. Even if arguable, allowing the amendments would be contrary to case management objectives, causing delay, increased costs, and prejudice to Diageo.

Court Disposition

Plaintiff's application for leave to amend Commercial List Statement and for related discovery dismissed.

Orders

  • Vok's further amended notice of motion filed on 15 July 2014 dismissed.
  • Vok to pay Diageo's costs, including costs of the motion as originally filed and subsequently amended.