DSE (Holdings) Pty Ltd v InterTAN Inc - [2004] FCA 1159

FEDERAL COURT OF AUSTRALIA
DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1159
CONTRACT – interpretation and construction of commercial contracts – sums due under post-completion adjustment clause - breach of warranty.
TRADE PRACTICES – misleading or deceptive conduct – estoppel – rectification for unilateral mistake.
Corporations Act 2001 (Cth) ss 995, 1005, 1325
A Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555 referred to
Antaios Compania Naviera SA v Salen Rederiena AB [1985] AC 191 applied
Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 applied
Bank of New Zealand v Simpson [1900] AC 182 applied
Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 applied
Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259 referred to
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 referred to
First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194 referred to
Hillas & Co Ltd v Arcos Ltd [1932] LT 513 applied
Johnson Matthey v A C Rochester Overseas (1990) 23 NSWLR 190 referred to
Johnstone v Commerce Consolidated Pty Ltd [1976] VR 463 referred to
Lam v Austintel Investments Australia Pty Ltd (1990) 97 FLR 458 referred to
Lee Kong Nelder Nominees Pty Ltd v John Holland Construction & Engineering Pty Ltd WA Supreme Court Full Court 27 May 1998 referred to
Macdonald v Longbottom (1859) 1 E & E 977; 120 ER 1177 applied
Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676 applied
Pacific Carriers Limited v BNP Paribas [2004] HCA 35 applied
Re Freehouse Pty Ltd (1997) 26 ACSR 662 referred to
Riverlate Properties v Paul [1975] Ch 133 referred to
Royal Botanic Gardens and Domain Trust v South Sydney Council [2002] HCA 5; 186 ALR 289 applied
South Sydney Council v Royal Botanic Gardens and Domain Trust [1999] NSWCA 478referred to
Taylor v Johnson (1983) 151 CLR 422 applied
The Nai Genova [1984] 1 Lloyd’s Rep 353 referred to
Thomas Bates and Son v Wyndham’s (Lingerie) Limited [1981] 1 WLR 505 referred to
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 applied
DSE (HOLDINGS) PTY LIMITED v INTERTAN INC & ANOR
N 3011 of 2002
ALLSOP J
9 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3011 of 2002

BETWEEN:

DSE (HOLDINGS) PTY LTD
APPLICANT

AND:

INTERTAN INC
FIRST RESPONDENT

INTERTAN CANADA LIMITED
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER: 9 SEPTEMBER 2004

WHERE MADE:

SYDNEY

THE COURT:
1.Declares that upon the proper construction of the written agreement entitled “Share Acquisition Agreement” and executed on 10 April 2001, the expression “December Accounts” means or refers to the document entitled:
“Corporate Pack – InterTAN Australia
Subsidiary/Division for the period ending December 2000”
and referred to by the parties in these proceedings as the “December Corporate Pack”.

2.Orders that within seven days the applicant…

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: [2004] FCA 1159
Decision Date: 9 SEPTEMBER 2004

CaseChat Overview and Summary

DSE (Holdings) Pty Ltd commenced proceedings against InterTAN Inc and InterTAN Canada Limited seeking an adjustment payment under a Share Acquisition Agreement executed on 10 April 2001. The applicant claimed that the agreement entitled the applicant to an adjustment payment of $4 million plus interest, and alternatively sought relief by way of estoppel, rectification or misleading or deceptive conduct. The respondents denied the applicant's entitlement to an adjustment payment and counterclaimed for repayment of the $4 million. The court found in favour of the applicant on the basis of estoppel and rectification, and awarded the applicant $4 million plus interest, with costs. The court held that the parties had a common understanding that the December Corporate Pack was the reference accounts for the transaction, and that the applicant was entitled to an adjustment payment based on that understanding. The court also found that the respondents had engaged in misleading or deceptive conduct by failing to disclose the existence of the receivable, and that the applicant was entitled to relief by way of rectification. The court rejected the respondents' argument that the applicant was precluded from seeking relief by the terms of the agreement.

Orders