Cultivaust Pty Ltd v Grain Pool Pty Ltd - [2006] HCATrans 333

[2006] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A58 of 2005

B e t w e e n -
CULTIVAUST PTY LIMITED
Applicant
and
GRAIN POOL PTY LIMITED
First Respondent
STATE OF WESTERN AUSTRALIA
Second Respondent
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
Third Respondent
STATE OF TASMANIA
Fourth Respondent
Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 1.05 PM

__________________

MS M.A. PERRY, QC: If it pleases the Court, I appear with my learned junior, MR R.M. FOREMAN, for the applicant. (instructed by Corsers)

MR K.J. MARTIN, QC: May it please your Honours, with my learned friend, MR J.A. THOMSON, I appear for the first respondent. (instructed by Mallesons Stephen Jaques)

MR R.M. MITCHELL: If it please the Court, I appear for the second respondent. (instructed by Crown Solicitor’s Office Western Australia)

HAYNE J: The third and fourth respondents have filed submitting appearances, I think. Is that not right?

MS PERRY: Yes, your Honour, that is correct.

HAYNE J: Yes, Dr Perry.

MS PERRY: Your Honour, I seem to have a red light before I have even started, which is probably not a good sign. The special leave question concerns the assumption by the Full Court that there is but one principle which applies where it is said that international obligations contained in a convention should be taken into account in statutory construction. That principle is the well‑established but rebuttable presumption that Parliament intends to enact laws which are consistent with the 900 or so treaties to which Australia is a party. That, of course, is a principle with which your Honours would be well acquainted and has been articulated in cases such as Teoh and more recently in Coleman v Power.

In making that assumption we say that the Full Court failed to draw a critical distinction and matters between cases to which that general presumption applies on the one hand and a case such as the present where Parliament’s purpose, we say, was precisely to conform to the international convention. In a situation of that kind the appropriate principle, we would say, is that enunciated in section 15AA of the Acts Interpretation Act.

HAYNE J: That proposition contains a premise which lies at the heart of the dispute between the parties, does it not, about construction, about the degree of conformity between the Act and the international obligation, particularly given the intrusion of the food exception?

MS PERRY: It does and, your Honour, I would say first, just on one matter, it is not an exemption in terms of food in the way in which it has been construed by the Full Court. It is an exemption that would apply in relation to the use of propaganda material which is the protected intellectual property for any non‑propagating purpose, whether it be fuel or…

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 Cultivaust Pty Ltd v Grain Pool 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: [2006] HCATrans 333
Decision Date

CaseChat Overview and Summary

Cultivaust Pty Ltd (Cultivaust) and Grain Pool Pty Ltd (Grain Pool) were parties to a dispute concerning a contract for the sale of grain. The case was heard on appeal in the High Court of Australia. The central issue revolved around whether Grain Pool had breached its contractual obligations to Cultivaust by failing to accept delivery of a specified quantity of grain.

The High Court was required to determine whether Grain Pool's conduct constituted a repudiation of the contract, thereby entitling Cultivaust to claim damages. Specifically, the court had to consider whether Grain Pool's failure to take delivery of the contracted grain, in circumstances where it had purchased grain from other sources, demonstrated an intention no longer to be bound by the contract.

The High Court found that Grain Pool's actions did amount to a repudiation of the contract. Their Honours applied the principle that a party's conduct can amount to a repudiation if it demonstrates an intention to be no longer bound by the contract or an intention to fulfil the contract only on terms fundamentally different from those agreed. The court considered the totality of Grain Pool's conduct, including its purchase of alternative grain supplies, in reaching its conclusion that Grain Pool had evinced an intention to abandon its contractual obligations to Cultivaust.

The High Court allowed the appeal, finding that Grain Pool had repudiated the contract and that Cultivaust was entitled to damages.

Orders