Durham v Durham

Case [2011] NSWCA 335


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: CSG Limited v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335
Hearing dates:21 July 2011
Decision date: 04 November 2011
Before: Bathurst CJ at 1
Campbell JA at 2
Sackville AJA at 3
Decision:

1. Grant the applicant (" CSG ") leave to appeal.

2. Direct CSG to file a notice of appeal within 7 days.

3. Direct the parties to file agreed short minutes of order giving effect to this judgment (including any question of costs) within 14 days.

4. If no agreement can be reached, direct:

(a) CSG to file and serve within 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders; and

(b) the respondent to file and serve within a further 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders.

[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 - dealership agreements relating to multi-function photocopiers - whether the supplier had determined "target quotas" in accordance with the agreements - whether dealer had breached agreements by creating potential conflict of interest - whether dealer entitled to terminate agreements for breach of essential conditions - whether the word "assign" in dealership agreements includes novation of service contracts between dealer and customers
Cases Cited: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41
Howell v Macquarie University [2008] NSWCA 26
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 276 ALR 375
Leveraged Equities Ltd v Goodridge [2011] FCAFC 3; 191 FCR 71
Olsson v Dyson [1969] HCA 3; 120 CLR 365
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; 149 FCR 395
Phipps v Boardman [1967] 2 AC 46
Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; 45 CLR 359
Category:Principal judgment
Parties: CSG Limited (Applicant)
Fuji Xerox Australia Pty Ltd (Respondent)
Representation: Counsel:
J Gleeson SC with D Sulan (Applicant)
RM Smith SC with G Ng (Respondent)
Solicitors:
DLA Phillips Fox (Applicant)
Corrs Chambers Westgarth (Respondent)
File Number(s):2011/56823
 Decision under appeal 
Citation:
[2010] NSWSC 1258
Date of Decision:
2010-11-23 00:00:00
Before:
McDougall J
File Number(s):
2010/281890

Judgment

  1. BATHURST CJ : For the reasons given by…

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Details
AGLC
Durham v Durham [2011] NSWCA 335
Case
[2011] NSWCA 335
Decision Date

CaseChat Overview and Summary

This matter concerned a dispute between a supplier, CSG, and a dealer regarding dealership agreements for multi-function photocopiers. The central issues were whether CSG had determined "target quotas" in accordance with the agreements, whether the dealer had breached the agreements by creating a potential conflict of interest, and whether the dealer was entitled to terminate the agreements for breach of essential conditions. A further question arose as to whether the word "assign" in the dealership agreements encompassed the novation of service contracts between the dealer and its customers.

The Court of Appeal granted CSG leave to appeal and directed it to file a notice of appeal within seven days. The parties were then to file agreed short minutes of order giving effect to the judgment, including any question of costs, within fourteen days. If agreement could not be reached, CSG was to file its proposed short minutes and submissions within fourteen days, with the respondent to file its proposed minutes and submissions within a further fourteen days.

Orders

Orders of the court

1. Grant the applicant (" CSG ") leave to appeal.

2. Direct CSG to file a notice of appeal within 7 days.

3. Direct the parties to file agreed short minutes of order giving effect to this judgment (including any question of costs) within 14 days.

4. If no agreement can be reached, direct:

(a) CSG to file and serve within 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders; and

(b) the respondent to file and serve within a further 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders.

[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

BATHURST CJ

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Ratio Decidendi

Legal Principle Established

Established by: BATHURST CJ

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