Deepsliver Pty Ltd v Aquatherm Australia Pty Ltd - [2007] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DEEPSILVER PTY LTD -v- AQUATHERM AUSTRALIA PTY LTD [2007] WADC 13

CORAM: COMMISSIONER SCHOOMBEE

HEARD: 4-8 SEPTEMBER 2006 & 12-13 OCTOBER 2006

DELIVERED : 23 FEBRUARY 2007

FILE NO/S: CIV 2415 of 2003

BETWEEN: DEEPSILVER PTY LTD (ACN 067 776 354)
Plaintiff
AND
AQUATHERM AUSTRALIA PTY LTD (ACN 059 578 782)
Defendant

Catchwords:

Contract - Formation of contract - Whether distributorship or agency - Implied terms - Best efforts to promote sale of products - To allow party the benefit of the contract - Trust and confidence - Breach of contract - Repudiation - Reasonable notice period

Legislation:

Foreign Corporations (Application of Laws) Act 1989

Result:

Plaintiff's claim dismissed
Defendant's counterclaim allowed

Representation:

Counsel:

Plaintiff: Mr G M Abbott
Defendant: Mr P B O'Neil

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Redding & Associates

Case(s) referred to in judgment(s):

Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Artfleet Pty Ltd v BG & BC Spackman Pty Ltd, unreported; SCt of WA; Lib No 980126; 25 March 1998
Associated Newspapers Ltd v Bancks (1951) 83 CLR 322
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438
Davies v Smith (1939) 12 ALJ 260
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Godecke v Kirwan (1973) 129 CLR 629
Hawkins v Clayton (1988) 164 CLR 539
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Masters v Cameron (1954) 91 CLR 353
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 [2001]
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Shevill v Builders Licensing Board (1982) 149 CLR 620
Summers v The Commonwealth (1918) 25 CLR 144
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Turner Kempson & Co Pty Ltd v Camm [1922] VLR 498
Upper Hunter County District Council v Australian Chilling and Freezing Co (1968) 118 CLR 429
WK Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15

Case(s) also cited:

Butt v McDonald (1896) 7 QLJ 68
International Harvester Company of Australia Pty Ltd v Carigan's Hazeldene Pastoral Company (1958) 100 CLR 644
Old Papas Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd & Ors [2003] WASCA 11
Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106

COMMISSIONER SCHOOMBEE: Deepsilver Pty Ltd, trading as Higgins Agencies ("the plaintiff") entered into…

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.

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Details

Case: [2007] WADC 13
Decision Date: 23 FEBRUARY 2007

CaseChat Overview and Summary

The case involved a dispute between Deepsliver Pty Ltd and Aquatherm Australia Pty Ltd. Deepsliver alleged that Aquatherm breached a contract for the distribution of Deepsliver's products. The Federal Court of Australia was required to determine the nature of the contractual relationship between the parties and whether Aquatherm had breached the contract by failing to promote the sale of Deepsliver's products with best efforts.

The central issue was to determine the nature of the relationship between the parties, specifically whether the agreement constituted a distributorship or an agency. Additionally, the court needed to decide whether Aquatherm breached the contract by failing to make best efforts to promote the sale of Deepsliver's products. The court also had to consider whether Aquatherm's actions amounted to repudiation of the contract and the appropriate notice period for termination.

The court examined the terms of the agreement and found that it constituted a distributorship rather than an agency. The court held that Aquatherm was required to make best efforts to promote the sale of Deepsliver's products, and Aquatherm's failure to do so constituted a breach of contract. The court found that Aquatherm's actions amounted to repudiation of the contract and determined that a reasonable notice period for termination would be four weeks. The court ordered Aquatherm to pay damages to Deepsliver for the breach of contract.

Orders