Current Images Pty Ltd v Dupack Pty Ltd

Case [2012] NSWCA 99


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Current Images Pty Limited v Dupack Pty Limited [2012] NSWCA 99
Hearing dates:30 November 2011
Decision date: 20 April 2012
Before: Bathurst CJ at [1]; Macfarlan JA at [76]; Sackville AJA at [77]
Decision:

(1)Appeal allowed.

(2)Orders 1 and 2 of the orders made by the primary judge on 11 March 2011 set aside.

(3)Judgment for the appellant against the respondent for $157,947.

(4)Direct the appellant within 14 days to make submissions:

(a)As to the calculation of interest on the judgment sum.

(b)The appropriate order for costs of the proceedings.

(5)Direct the respondent within a further 14 days to make such submissions in reply it may wish to make on the matters referred to in pars 4(a) and (b) above.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - construction - whether primary judge erred in considering post-contractual conduct and subjective intention of parties

CONTRACT - construction - incorporated terms - whether terms incorporated in error or contradict express terms in principal agreement

CONTRACT - termination - repudiation - date of repudiation on which claim arose

DAMAGES - breach of contract - difference between loss of bargain and loss of profit - whether loss caused - whether loss mitigated - onus of showing loss avoided
Legislation Cited: Civil Procedure Act 2005 s 100
Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Alarm Facilities Pty Limited v Jackson Constructions Pty Limited [1975] 2 NSWLR 22
Brien v Dwyer [1978] HCA 50; (1978) 141 CLR 378
Codelfa Construction Pty Limited v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Commonwealth v Amann Aviation Pty Limited [1991] HCA 54; (1991) 174 CLR 64
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
Ford Motor Co of Australia Ltd v Arrowcrest Group Pty Ltd [2002] FCA 1156
Franklins Pty Limited v Metcash Trading Limited [2009] NSWCA 407; (2009) 76 NSWLR 603
Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125
Izzard v Universal Insurance Company Limited 1937 AC 773
Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137
McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377
Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297
Sandra Investments Pty Limited v Booth [1983] HCA 46; (1983) 153 CLR 153
Secured Income Real Estate (Aust) Limited v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Suttor v Gundowda Pty Limited [1950] HCA 35; (1950)…

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AGLC
Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99
Case
[2012] NSWCA 99
Decision Date

CaseChat Overview and Summary

Current Images Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge in favour of Dupack Pty Ltd (the respondent). The dispute concerned the construction of a contract, the incorporation of certain terms, and the assessment of damages for breach of contract, specifically relating to the date of repudiation and the calculation of loss.

The Court of Appeal was required to determine whether the primary judge erred in considering post-contractual conduct and the subjective intentions of the parties when construing the contract. Further, the Court had to consider whether certain terms were incorporated into the contract in error or if they contradicted the express terms of the principal agreement. Finally, the Court needed to determine the correct date of repudiation for the purpose of assessing damages and whether the appellant had successfully demonstrated its loss, including the extent to which it had mitigated that loss.

The Court of Appeal found that the primary judge had erred in considering post-contractual conduct and subjective intentions, as contractual construction should primarily focus on the objective meaning of the words used in the contract. The Court also determined that certain incorporated terms were indeed in error and contradicted the principal agreement. Regarding damages, the Court found that the primary judge had incorrectly calculated the loss of bargain and had not properly considered the onus on the respondent to prove mitigation. Consequently, the appeal was allowed, and the primary judge's orders were set aside. The Court entered judgment for the appellant against the respondent for $157,947, with further submissions to be made regarding interest and costs.

Orders

Orders of the court

(1)Appeal allowed.

(2)Orders 1 and 2 of the orders made by the primary judge on 11 March 2011 set aside.

(3)Judgment for the appellant against the respondent for $157,947.

(4)Direct the appellant within 14 days to make submissions:

(a)As to the calculation of interest on the judgment sum.

(b)The appropriate order for costs of the proceedings.

(5)Direct the respondent within a further 14 days to make such submissions in reply it may wish to make on the matters referred to in pars 4(a) and (b) above.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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