Abbott's Pty Ltd v Gel Group Pty Ltd

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ABBOTT'S PTY LTD -v- GEL GROUP PTY LTD [2005] WADC 191
Last Update:  13/10/2005
ABBOTT'S PTY LTD -v- GEL GROUP PTY LTD [2005] WADC 191
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2005] WADC 191
Case No: CIV:2755/2003   Heard: 14-16 SEPTEMBER 2005
Coram: MARTINO DCJ   Delivered: 11/10/2005
Location: PERTH   Supplementary Decision:
No of Pages: 21   Judgment Part: 1 of 1
Result: Plaintiff's claim dismissed
[Click here for Judgment in Adobe Acrobat Format ]
Parties: ABBOTT'S PTY LTD
GEL GROUP PTY LTD

Catchwords: Contracts Incorporation of terms Implied terms Torts Negligent misstatement Trade practices Misleading or deceptive conduct
Legislation: Trade Practices Act 1974 (Cth)

Case References: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Baltic Shipping Co "The Mikhail Lermontov" v Dillon (1991) 22 NSWLR 1
Brickhill v Cooke [1984] 3 NSWLR 396
Bryan v Maloney (1995) 128 ALR 163
Butcher v Lachlan Elder Realty Pty Ltd (2004) 212 ALR 357
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422
Causer v Browne [1952] VLR 1
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 68 ALR 385
Gardam v George Wills & Co Ltd (No.1)(1988) 82 ALR 415
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Henville v Walker (2001) 206 CLR 459
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd & Ors (1993) ATPR 41­249
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Morey v Transuburban City Link Ltd (1997) ATPR 41-571
Mouritz v Hegedus [1999] WASCA 1061
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Olley v Marlborough Court Ltd [1949] 1 KB 532
Pricom Pty Ltd v Sgarioto (1994) ATPR 41­365
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27
Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516
Secured Income Real Estate (Aust) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596
Sydney City Council v West (1965) 114 CLR 481
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : ABBOTT'S PTY LTD -v- GEL GROUP PTY LTD [2005] WADC 191 CORAM : MARTINO DCJ HEARD :14-16 SEPTEMBER 2005 14-16 SEPTEMBER 2005 DELIVERED : 11 OCTOBER 2005 FILE NO/S : CIV 2755 of 2003 BETWEEN : ABBOTT'S PTY LTD
                  Plaintiff

                  AND

                  GEL GROUP PTY LTD
                  Defendant



Catchwords:

Contracts - Incorporation of terms - Implied terms - Torts - Negligent misstatement - Trade practices - Misleading or deceptive conduct


Legislation:

Trade Practices Act

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Details
Case
[2005] WADC 191
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between Abbott's Pty Ltd and Gel Group Pty Ltd. Abbott's, a company engaged in the sale of retail goods, alleged that Gel Group, a supplier, had breached contractual obligations by failing to provide goods of satisfactory quality and had made misleading or deceptive representations about the goods' suitability. The court was tasked with determining whether the terms of the contract between the parties were correctly incorporated and whether there were any implied terms that were breached. Additionally, the court had to assess whether the statements made by Gel Group constituted negligent misstatement or misleading or deceptive conduct under the trade practices act.

The primary legal issues before the court were the incorporation of terms within the contract and the presence of any implied terms. The court needed to ascertain whether certain terms were effectively included in the contract and whether any implied terms existed that were breached by Gel Group. The court also considered whether the statements made by Gel Group about the suitability of the goods amounted to negligent misstatement or misleading or deceptive conduct under the trade practices act.

The court found that the terms in question were not correctly incorporated into the contract and, therefore, could not be relied upon by Abbott's. The court held that the terms were not sufficiently brought to Abbott's attention and were not part of the written agreement. Furthermore, the court determined that there were no implied terms that had been breached. The court also found that Gel Group's statements did not constitute negligent misstatement or misleading or deceptive conduct under the trade practices act. Given these findings, the court dismissed Abbott's claim in its entirety.

Orders

Orders of the court

Plaintiff's claim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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