Butorac v WIN Corporation Pty Ltd

FEDERAL COURT OF AUSTRALIA

Butorac v WIN Corporation Pty Ltd [2009] FCA 1503

PRACTICE AND PROCEDURE – summary judgment – discretion whether to rule at once – unless discretion exercised, notice of motion to be determined on the basis of pleadings and evidence before the Court – proceedings to be struck out in part.

CONTRACT – intention of the parties to be identified objectively – the terms of a contract not to be construed by reference to the subjective understandings or intentions of a party – alleged incorporation of terms – need for mutual intention – implied terms not to contradict express terms – estoppel – necessity to identify facts from which an estoppel might arise.

Federal Court of Australia Act 1976 (Cth) ss 31A
Trade Practices Act 1974 (Cth) ss 52, 53B

Federal Court Rules O 11 r 2(a), O 11 r 16

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Branir Pty Ltd v Owston Nominees (No 2)Pty Ltd (2001) 117 FCR 424
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401
Luck v University of Southern Queensland (2009) 176 FCR 268
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298

DAVID BUTORAC v WIN CORPORATION PTY LTD (ACN 000 737 404) and BRUCE GORDON

NSD 1119 of 2009

BUCHANAN J
15 DECEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1119 of 2009

BETWEEN:

DAVID BUTORAC
Applicant

AND:

WIN CORPORATION PTY LTD (ACN 000 737 404)
First Respondent

BRUCE GORDON
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	15 DECEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The matter is adjourned for further directions to 9:30am on 5 February 2010, or such other time as may be arranged with my Associate.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1119 of 2009

BETWEEN:

DAVID BUTORAC
Applicant

AND:

WIN CORPORATION PTY LTD (ACN 000 737 404)
First Respondent

BRUCE GORDON
Second Respondent

JUDGE:	BUCHANAN J
DATE:	15 DECEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The respondents to these proceedings, which were commenced by application and statement of claim filed on 2 October 2009, have filed a motion seeking to strike out part of the proceedings under s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Act”) and part of the statement of claim under O 11 r 16 of the Federal Court Rules