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
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)
[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
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.]