Comix (Asia) Limited v Bantex Pty Ltd - [2018] NSWSC 47

Supreme Court

New South Wales

Medium Neutral Citation: Comix (Asia) Limited v Bantex Pty Ltd [2018] NSWSC 47
Hearing dates: 27 November 2017
Decision date: 09 February 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The plaintiff’s notice of motion dated 4 July 2017 is dismissed.
(2) The defendant has leave to file an amended defence by 9 March 2018.
(3) That each party pay its own costs.

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment under UCPR r 13.1(1) – whether triable issue – whether triable defence of equitable set-off – whether triable defence under s 54 of the Sale of Goods Act 1923 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Sale of Goods Act 1923 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Active Adult Management Pty Ltd v Milstern Retirement Living [2017] NSWSC 1238
Hawes v Dean [2014] NSWCA 380
Hill v Zymack (1908) 7 CLR 352; [1908] HCA 13
HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479
Lord v Direct Acceptance Corporation Ltd (Receiver and Manager Appointed) (in liq) (1993) 32 NSWLR 362
Morgan & Sons Ltd v S Martin Johnson & Co Ltd [1949] 1 KB 107
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451
State of New South Wales v Williams (2014) 242
A Crim R 22; [2014] NSWCA 177
Category: Procedural and other rulings
Parties: Comix (Asia) Limited (Plaintiff)
Bantex Pty Ltd (Defendant)
Representation:
Counsel:
Mr R A Parsons (Plaintiff)
Mr M Klooster (Defendant)
Solicitors:
Preece Lin Lawyers (Plaintiff)
Unified Lawyers (Defendant)

File Number(s): 2017/35062
Publication restriction: Nil

Judgment

The plaintiff, Comix (Asia) Limited (“Comix”) is a company incorporated in Hong Kong which manufactures plastic “flats” used to make ring binders. The manufacturing process takes place in the People's Republic of China.
Bantex Pty Ltd (“Bantex”) is a company incorporated in Australia that manufactures and distributes office supplies throughout Australia. Its largest customer in Australia is Officeworks which has been a customer since 1994. Bantex supplies large quantities of ring binders to Officeworks.
In March 2011, Comix approached Bantex to distribute ring binders manufactured in China by Comix to Officeworks. It was subsequently agreed that the cost of shipping the folders with the rings already riveted to them could be reduced if Comix only shipped the plastic flats and Bantex riveted the ring mechanism onto the flats in Australia. Between September 2014 and August 2015, a large number of flats were shipped by Comix to Bantex for this purpose.
During this time Bantex discovered a number of problems with the quality of flats: some of them were wrinkled or scratched; some had inconsistent welding of the joints between the front and back covers and the spine; some of them had the overlay sheets stretched in some areas; and some had an inconsistent overlay gap. This was communicated to Comix and some compensation was paid. Bantex alleges that the problems were ongoing and it eventually found an alternative manufacturer for the flats. Bantex now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Comix (Asia) Limited v Bantex Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 47
Decision Date: 09 February 2018

CaseChat Overview and Summary

The plaintiff, Comix (Asia) Limited, filed an application for summary judgment against the defendant, Bantex Pty Ltd, in the Federal Circuit Court. Comix sought summary judgment for a debt of approximately $700,000, which arose from the sale of goods. Bantex opposed the application, asserting that there were triable issues concerning equitable set-off and a potential defence under section 54 of the Sale of Goods Act 1923 (NSW). The court was required to determine whether these defences presented genuine issues for trial, thereby precluding summary judgment.

In examining whether there were triable issues, the court considered the evidence provided by both parties. The defence of equitable set-off was based on allegations that Bantex had paid Comix for goods that were defective and subsequently made claims for damages. The court assessed the admissibility and weight of the evidence concerning the defects and the corresponding claims for damages. Regarding the defence under section 54 of the Sale of Goods Act 1923 (NSW), the court reviewed the circumstances under which the sale occurred, including the terms of the contract and the conditions of the goods at the time of sale. The court also considered whether there were any genuine disputes regarding these issues that could not be resolved on the papers alone.

The court found that the evidence provided by Bantex did not establish any triable issues concerning equitable set-off or the defence under section 54 of the Sale of Goods Act 1923 (NSW). The claims for damages were deemed speculative and not substantiated by sufficient evidence to warrant a trial. The court concluded that the only genuine issue was the amount owed by Bantex to Comix for the goods sold. Given the absence of any triable issues, the court granted Comix's application for summary judgment, ordering Bantex to pay the outstanding debt of approximately $700,000 plus interest.

Orders