Ecmoho (Hong Kong) Limited v AU Future Health Pty Ltd (No. 2)
[2017] VCC 190
•14 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-00870
| ECMOHO (HONG KONG) LIMITED | Plaintiff |
| v | |
| AU FUTURE HEALTH PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2017 | |
DATE OF JUDGMENT: | 14 March 2017 | |
CASE MAY BE CITED AS: | Ecmoho (Hong Kong) Limited v AU Future Health Pty Ltd (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 190 | |
REASONS FOR JUDGMENT
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Subject: CONTRACT; PROCEDURE
Catchwords: Application to court to reopen its decision prior to authentication; supplementary submissions sought post-trial prior to publication of decision; scope of submissions; scope of pleadings; procedural fairness
Legislation Cited: Civil Procedure Act 2010
Cases Cited:NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; Bale v Mills (2011) 81 NSWLR 498; Seafish Tasmania Pelagic Pty Ltd v Burke & Ors [2013] FCA 782; SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266; R v Billington [1980] VR 625; Atkins v Interprac Financial Planning Pty Ltd & Crole (No 2) [2008] VSC 99; Minister for Education v Klein [2005] WASCA 185; Smith v New South Wales Bar Association (1992) 176 CLR 256; Wentworth v Wentworth [1999] NSWSC 638; Refaat v Barry [2014] VCC 199; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Chen v Chan [2008] VSCA 280; Findlay v State of Victoria [2009] VSC 294; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Judgment: (1) Summons dismissed. (2) Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Laidlaw | Mark M Morgan, barrister and solicitor |
| For the Defendant | Mr N Wood | Darrer Muir Fleiter Lawyers |
HIS HONOUR:
Background
1 On 22 December 2016, I published reasons for judgment in this proceeding following a trial which took place on 7 and 8 December (see [2016] VCC 1987). I gave judgment for the plaintiff, Ecmoho (Hong Kong) Limited (“Ecmoho”) on its claim for $104,755.20 and dismissed the counterclaim by the defendant, AU Future Health Pty Ltd (“AU”). At this stage, no judgment has been authenticated. On 7 February 2017, solicitors acting for AU filed a Summons seeking the following orders:
(1)An order in the exercise of the Court’s inherent or implied jurisdiction to withdraw or vary any judgment or reasons for judgment given on 22 December 2016, but not entered or authenticated by the Court;
(2) Directions consequent to Order 1;
(3) Any further or other order as the Court thinks fit.
This Summons came on for hearing before me on 1 March 2017.
2 Neither party funded a transcript of the trial and so the reasons which I published on 22 December were prepared without the benefit of any such transcript. It appears that, in any event, the first 30 minutes, or so, of the trial could not be transcribed because of technical problems. While the solicitor for the defendant said that he had been seeking, after the event, to have a trial transcript prepared, none was available at the time that the Summons came on for hearing some months later, though the trial transcript has since become available. Again, neither party has seen fit to fund a transcript of the hearing on the Summons. Given, as will appear below, that the defendant’s application turns crucially upon what was and was not submitted at particular times, the absence of transcript is, to say the least, regrettable.
3 The facts of the dispute as narrated in my reasons for judgment are relatively simple but perplexing. They seemed to me difficult of legal analysis at the time. The passage of some months since trial and the elucidation of the issues by further argument on the hearing of the Summons has not made the analysis any easier.
4 The defendant’s Summons concentrates upon the dismissal of its counterclaim. AU said that under the second leg of the transactions between it and Ecmoho it was entitled to receive a price of $392,524.80 for the sale of a consignment of bottles of Suisse oral collagen. Having mitigated its loss by resale of the consignment, it sought damages in the sum of $69,580.80 (see [46] of the judgment). AU’s contention was that the whole price of $392,524.80 was payable before despatch of the consignment (see [59] of the judgment). It sought to recover $69,580.00 as damages for repudiation (see [17]-[18] of the judgment).
5 Paragraph 2.2 of the Contract for this leg of the transaction under the heading “Time of despatch”, provided for despatch to be:
“Within three working days from the receipt of 30 per cent deposit in [AU’s] bank account.” (See [60]).
In light of that provision, I rejected the contention on behalf of AU that Ecmoho was obliged to pay the entire $392,524.80 prior to despatch of the consignment. That is, I rejected the provisions as to payment and delivery alleged by AU in its counterclaim. On 12 December, at my request, my associate transmitted an email to the solicitors for the parties as follows:
“His Honour seeks the parties’ submissions on the following matter which he does not recollect being dealt with at the trial of this matter last week:
The ‘second agreement’ provides for despatch ‘within three working days from receipt of the 30 per cent deposit into [Au’s] bank account’.
Does this mean there is no obligation to despatch until payment of 30 per cent of $392,524.80 into Au’s bank account?
If, as it seems, no such payment was made does this constitute a breach of the second agreement by Ecmoho?
Is this matter the subject of any pleaded counterclaim?
Could you please reply by 4.00pm on 14 December 2016.”
6 Ecmoho’s solicitors responded within the stipulated time limit in a memorandum over the signature of Ecmoho’s counsel, Mr Laidlaw. The solicitors for AU obtained a short extension of time and responded in a memorandum over the signature of AU’s counsel, Mr Nick Wood, dated 15 December 2016. AU’s memorandum consisted of some nine paragraphs, occupying two-and-a-half pages, which included the proceeding heading and “tram tracks”. Ecmoho’s memorandum extended just over five pages in the same format, including some 22 paragraphs. Following receipt of these memoranda, I finalised and delivered judgment on 22 December.
7 With no judgment authenticated, AU, in its Summons, seeks a re-opening of my determination upon its counterclaim on a number of grounds. Two of those grounds raise a technical point or points as to pleadings, to which I will turn in due course. The first, however, contends that according to AU’s counsel, Mr Wood:
“It is apparent, from the terms of the reasons for judgment, that the Court had regard to the supplementary submissions advanced by Ecmoho … .”
Mr Wood said:
“It does not appear that the Court ignored any part of Ecmoho’s supplementary written submissions. Indeed, it appears that the Court considered and was persuaded by each of the aspects [emphasis added] of Ecmoho’s supplementary written submissions … .” [summarised earlier in the submissions]
He said that it was impermissible for a party to file submissions without grant of leave. He referred to NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [192], Bale v Mills (2011) 81 NSWLR 498 at [57]-[61] and Seafish Tasmania Pelagic Pty Ltd v Burke & Ors [2013] FCA 782. Mr Wood continued:
“Fairness dictates that submissions filed without leave should be ignored”.
Mr Wood referred to a decision of the Full Federal Court in SZSJA v Minister for Immigration and Border Protection (2013) 308 ALR 266 at [67]. In the present case he said:
“…the court did not grant the parties leave to file supplementary submissions relating to whether Ecmoho repudiated the Second Agreement. Yet Ecmoho made substantial submissions on this topic, which were also new and inconsistent with its pleadings, its closing submissions and the conduct of its case at the trial.”
The submissions (I will refer to them for convenience as “the offending submissions”) were, according to Mr Wood, “wrong, and could readily be answered if the Court was to decide to re-open its decision.” He did not, for the purposes of the present Summons, elaborate on the basis for the contention that the offending submissions were “wrong”.
8 Implicit in these contentions is the view that it was incumbent upon me to identify the “offending submissions” in Ecmoho’s response to my request and exclude them from consideration without any prompting from those acting for AU. Mr Wood submitted that his client would have had “no standing” to object to the offending submissions, either in its own memorandum filed the following day, nor in any subsequent memorandum, presumably upon the same principle that supplementary submissions filed without leave ought to be ignored. During oral argument, I pressed Mr Wood to identify each “offending” submission and to state where in the judgment it would be found to be reflected. I made this request with the view of testing his contention “that the Court considered and was persuaded by each of the aspects of Ecmoho’s supplementary written submissions”, which he had summarised earlier in his written outline. He identified the following paragraph:
“5. If such a term [viz if no time is fixed for payment, the price is due immediately on the conclusion of the contract, provided the seller is ready and willing to deliver the goods] is found to be a term of the Second Agreement, notwithstanding it was not any part of the defendant’s pleaded case, it is notable that no evidence was led at all as to the seller being ready and willing to deliver at any point in time.”
This submission, according to Mr Wood, was found reflected in paragraph [66] of the judgment. The next offending submission identified by Mr Wood was paragraph [7b], which was in the following terms:
“7. The express terms of this contract therefore carries the following aspects:
…
(b)There being no time stipulated, and as there is no contrary intention appearing, whatever the time for payment of the deposit, it was not of the essence.”
Mr Wood said the immediately following paragraph was also an offending submission, which stated:
“8.Where time for performance of an obligation is not of the essence, several things follow:
·A party will not be in breach of a term, the time for performance of which is non-essential, unless that party has been guilty of unreasonable delay;
·Such a term, being non-essential, is a warranty and not a condition and accordingly the breach of which will usually only permit a remedy for damages arising from breach of that warranty; and
·Rescission is not available unless the delay be such as on the facts to amount to a repudiation of the entire agreement.”
The next paragraph, Mr Wood said, was also an offending submission. It stated:
“9.On this analysis, the pleading at paragraph 15 of the Defence and Counterclaim does not assist the defendant. The pleading merely alleges breach being a failure to pay ‘for the goods ordered under the Second Agreement prior to shipping or at all’ and that this amounted to repudiation.”
These several paragraphs, it was said, were to be found reflected in paragraphs [66] and [67] and [70]-[74] of the judgment. Finally, he referred to two additional paragraphs of the offending submissions, namely paragraphs [11] and [12], which he said were reflected in paragraph [66] and [70] to [72] of the judgment. These paragraphs [11] and [12] are as follows:
“11.Secondly, the breach as pleaded, devoid of any allegations as to time stipulation or any allegation as to what was reasonable or unreasonable, is not capable of supporting the conclusion of repudiation.
12.The defendant’s remedy was for damages for a breach of a warranty, not rescission. Specifically, there was no evidence as to any unreasonable aspect of any delay, nor of any notice served converting any time obligation to an essential term.”
Ecmoho’s contentions
9 Mr Laidlaw submitted that the allegedly offending submissions were well within the scope of the questions which my associate’s email raised with the parties. He said there was “no unfairness as regards the defendant. Notably, the defendant was served with a copy of [scil on] the same day the document was filed and raised no objection at any time prior to judgment.”
Jurisdiction to re-open
10 Mr Wood said it was well-established that a court could reconsider its decision based on inherent or implied jurisdiction prior to its authentication. He referred to R v Billington [1980] VR 625, Atkins v Interprac Financial Planning Pty Ltd & Crole (No 2) [2008] VSC 99 and Minister for Education v Klein [2005] WASCA 185 [7]-[9] in the judgment of Steytler P. Mr Laidlaw did not deny the existence of the power or the applicability of these decisions. It may be thought that the decision of the High Court of Australia in Smith v New South Wales Bar Association (1992) 176 CLR 256, 265, in the joint judgment of Brennan, Dawson, Toohey and Gaudron J, is the leading authority on the point. The power is to be exercised sparingly and so as not to undermine the finality of the trial. The judgment of Santow J (as he then was) in Wentworth v Wentworth [1999] NSWSC 638, [13]-[19], is a useful review of the authorities. The power is not exercised merely to allow a party to re-agitate arguments or to enable a disappointed litigant to put its arguments anew in a more persuasive manner.
Conclusion as to “offending submissions”
11 In my view, the “offending submissions” were properly within the scope of the matters upon which the Court sought further submissions. They are responsive to the question, “If as it seems, no such payment was made [viz of 30 per cent of $392,524.80] does this constitute a breach of the second agreement by Ecmoho?” Ecmoho’s counsel has treated this question, in substance, as asking not merely whether this non-payment constituted a breach but has gone to the question of the legal consequences of such breach, a quite reasonable response to the question. Implicitly, I suppose, Mr Wood would contend that the submissions as to whether the breach was repudiatory could only properly be raised if the following additional words were added ─ “and if ‘yes’ with what legal consequence?” If I were framing the question again, I would have added those words for the avoidance of doubt. It is, in my view, however entirely artificial to consider, where the counterclaim relative to the second agreement alleged a repudiatory breach, that the Court’s question was not directed to whether the breach was repudiatory or not, and merely to the relatively abstract question as to whether it was a breach of any description. Such a narrow technical approach is at odds with the modern ethos of litigation as laid down in the Civil Procedure Act. That conclusion would be sufficient to dispose of this aspect of AU’s application, but I should add that it is difficult to regard as fair, in the context of an argument about alleged unfairness, for AU to receive a copy of its opponent’s supplementary submission and neither respond nor complain about their propriety until after the delivery of a judgment which turned out to be adverse to it. The principle that extraneous submissions tacked on to those for which leave has been granted ought be ignored by the Court would not, in these circumstances, absolve AU from an obligation to complain if it believed that the submissions were improper in the same way as a litigant, on becoming aware of circumstances which would justify an application based on apprehended bias of a judge or tribunal, is not at liberty simply to hold it back until after the judgment or decision of the Court or tribunal is made known.
12 It may be appropriate for a litigant to rely upon a Court to ignore what is irrelevant or extraneous in a clear case. So, if a judge sought supplementary submissions upon an issue of quantification of damages and this led one of the litigants to make supplementary submissions on questions of liability, the opponent might confidently assume that these would be ignored. The non-responsive element of those additional submissions would be manifest. If I were wrong in my conclusion that the submissions as to repudiation were properly made, they were so closely allied to the subject matter on which submissions were sought that some complaint would be necessary to alert the Court to the issue before judgment was finalised. The judgment in NT Power Generation Pty Ltd, referred to by Mr Wood, proceeds, as I read it, upon the basis that the offending submissions there were manifestly discrete in dealing with a separate subject matter, rather than, as here, where they were at worst (an interpretation which I have in any event rejected) cognate and closely connected with the authorised submissions.
13 I should also observe, with respect to the element of AU’s case in support of its summons, that whilst it may be conceded that the matters in the allegedly offending paragraphs are reflected in my judgment, it cannot necessarily be assumed that the same conclusions and reasoning might not have appeared even in the absence of those submissions. As a law student over 40 years ago, I studied the law of sale of goods and the Goods Act 1958, Part I in particular. Lest it be thought that those matters would have been lost to my mind in the mists of time, I was required to revisit them in determining the case of Refaat v Barry [2014] VCC 199 at [106] and [117]. Moreover, some of these matters were canvassed at trial during Mr Laidlaw’s closing submissions. (T 102-3)
14 As to the offending submission No. 5, I note that I rejected the implied term which Mr Laidlaw contended for. (See judgment [66])
15 The present element of AU’s case in support of its summons has a further difficulty. Whilst Mr Wood submitted I should simply have ignored the “offending submissions”, he referred me to the High Court decision of Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. In that case, the Court considered a challenge to the determination of the Refugee Review Tribunal to refuse an applicant a protection visa. The tribunal received a letter which had been unsolicited to the Department, according to the headnote, “in which the author made certain allegations” against the applicant. The High Court held that there was a breach of procedural fairness when the tribunal failed to disclose the letter to the applicant despite a finding that the letter was neither credible nor relevant, and should be treated as of little or no significance. If the “offending” submissions are to be equated with the unsolicited letter, as Mr Wood’s submissions would have it, the very act of reading the submissions to determine whether they were properly responsive to the Court’s request would seem to create a natural justice problem in itself.
16 There is no proper analogy between this case and the case of Applicant VEAL. First, because the “offending submissions” were submissions of law which are commonplace in statute case law and in textbook commentary and references to evidence which emerged in open court, and are therefore quite different from scurrilous allegations against a person of some type of discreditable conduct, as the letter in Applicant VEAL seems to have been. More pertinently, the essence of the breach of natural justice was that the existence and terms of the letter were not disclosed to Applicant VEAL prior to the tribunal’s decision in contrast to the situation here where the “offending submissions” were copied to those acting for AU simultaneously with their filing in Court.
17 I reject the contention that AU has been the victim of a breach of natural justice relative to the “offending submissions”.
The pleadings argument
18 The second and third bases advanced by Mr Wood in support of his client’s summons entailed contentions that there had been a breach of procedural fairness in the manner in which I disposed of AU’s counterclaim in light of the state of the pleadings. The purpose of pleadings is to achieve procedural fairness in litigation. Mr Wood referred to Civil Procedure Victoria [13.01.5] and Chen v Chan [2008] VSCA 280 at [42]. He said the proper approach to the use of pleadings was stated by Ashley JA and Hollingworth AJA in their joint judgment in Findlay v State of Victoria [2009] VSC 294 at [165], where their Honours said:
“In determining whether a case was raised below, the starting point is the pleadings, which set the scene by which the trial is to take place. They ‘ensure fair play and delineate the issues for the purpose of the trial’. However, the pleadings will not be determinative, if the parties have ‘deliberately chosen some different basis for the determination of their respective rights and liabilities.’ So, it may be necessary to examine the way in which the trial was conducted, to see whether an inference can be drawn that the parties chose some issue different to that disclosed in the pleadings.”
19 As a result, said Mr Wood, if a court is contemplating deciding on a case different from the pleadings, “it must inform the parties of this prospect so they have an opportunity to address any new or changed issue that may arise. A failure adequately to inform the parties of this will ordinarily result in a denial of procedural fairness”. He referred to Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [2]. Mr Wood submitted that this very type of departure occurred in the present case and the appropriate warning was not given to AU. He said, “Ecmoho’s defence to AU Future’s counterclaim, as reflected in its pleading and confirmed in its closing submissions, was clear but confined”. Ecmoho’s defence was that AU Future had “repudiated first”. However, Ecmoho sought substantially to expand its defence to the counterclaim in its supplementary written submissions. “At that point, for the first time, Ecmoho positively denied, for certain reasons not previously advanced, that it had repudiated the second agreement even if (contrary to its pleaded defence) AU had not itself already repudiated that agreement.” Mr Wood noted that there had been no amendment or application to amend Ecmoho’s defence to counterclaim. Paragraph 15 of AU’s defence and counterclaim, following on from an allegation in paragraph 12 that Ecmoho had breached the second agreement by failing or refusing to pay “the amount of $392,524.80 owing under the second agreement”, stated:
“Further and/or alternatively, by reason of [Ecmoho’s] failure to pay [AU] for the goods ordered under the Second Agreement prior to shipping or at all [Ecmoho] repudiated the Second Agreement.”
In its reply and defence to counterclaim, at paragraph 3, Ecmoho stated:
“By reason of [AU’s] repudiation of the first and/or the second agreement, [Ecmoho] was entitled to and did accept the said repudiation and thereby elected to determine the second agreement.”
This plea was said to be responsive to paragraph 10 of the counterclaim which alleged the existence of the second agreement, but made no allegation of breach. It said, with respect to paragraph 12:
“By reason of the matters pleased [Scil pleaded] above, [Ecmoho] denies it breached the second agreement.”
In its answer to paragraph 15, the defence to counterclaim stated:
“As to paragraph 15 thereof, [Ecmoho] does not admit the allegations and says further that the obligation to pay the additional freight of AU$0.20 per bottle did not relate to [AU’s] obligation to deliver the goods under the first agreement.”
20 Mr Laidlaw did not deny that in his submissions at trial the answer which was put on behalf of Ecmoho was that Ecmoho had not repudiated the arrangements between the parties because AU had repudiated them first. He referred to a standoff which had developed between the parties and said at T100, L6-11:
“And it’s the insistence ultimately of [AU] in the language of Cindy of holding the eight pallets effectively as some sort of security or something unreasonably until they got their way on other issues that is the type of conduct that we say is repudiatory.”
21 In his supplementary submissions, he did not resile, on behalf of Ecmoho, from this analysis. He quoted from an exchange between the representatives of the party identified as “TOP” and “Cindy” at length in paragraph 19 of the supplementary submissions. He said, however, that insofar as there was no admission of the repudiation of the second agreement by his client, Ecmoho, it was incumbent on AU, if it were to succeed for loss of bargain damages, to prove every element of repudiation, and the pleadings put AU to proof on this point.
22 Mr Wood, however, submitted that with the enactment of section 42 of the Civil Procedure Act 2010, it became incumbent upon a pleader not to resort to the formula “does not admit” save in circumstances where the relevant party lacks knowledge of the relevant fact. He did not disagree with the proposition that the effect of a plea of “does not admit” was to say to the opposing party, in effect, “Prove it!”. He referred to paragraph 13.01.5 in the loose-leaf service, Civil Procedure Victoria, which, having traversed the same ground as to the purpose or object of pleadings, as was covered in Mr Wood’s submissions summarised above, continued:
“In the defence the defendant must respond to every allegation of fact in the statement of claim, the truth of which the defendant denies, or will not admit or as to which there is another answer. Any allegation to which the defendant does not make such a response is taken to be admitted. As to each allegation which the defendant does not intend simply to admit or to be taken to admit, the defendant must state that he or she denies or that he or she does not admit the allegation; alternatively, the defendant is entitled to admit the allegation, and then allege other facts which, if true, amount to a defence in law to what is admitted. An answer of the latter kind is called a defence in confession and avoidance. A specific denial of an allegation is called a traverse.”
In my view, a denial or non-admission still puts the opposing party to proof. The enactment of section 42 of the Civil Procedure Act does not change the effect of these standard pleadings. It raises ethical questions for the pleader and creates possible cost or disciplinary consequences when denials and non-admissions are made without justification.
23 The effect, contended Mr Wood, was that once the “you repudiated first” contention by Ecmoho was not sustained, Ecmoho was for that reason taken effectively to admit repudiation. Mr Laidlaw continued:
“The Court should have determined the counterclaim on the basis of the pleadings, the parties’ closing submissions and the parties’ supplementary submissions only insofar as they addressed the specific questions raised by the Court on 12 December 2016. Those questions were confined, and did not extend to any issue about repudiation.”
I have already explained why I do not accept the premise from which this contention moves. I must therefore reject the contention itself.
24 Mr Laidlaw contended correctly, as I understand it, that if Ecmoho’s pleading had been by way of confession and avoidance, if the avoidance was not made good, all that would stand would be the confession, viz the admission. He said that the pleadings to which I have referred are not by way of confession and avoidance, they do put AU to proof on its allegation of restitution. Ecmoho was at liberty, acting strictly in accordance with those pleadings, to draw attention to any consideration which might tend to negate the allegation of repudiation made against Ecmoho. It would have been competent to advance such arguments at trial and, so long as it was within the scope of the leave, or rather request, for further submissions made following trial, it was competent for Ecmoho to advance these matters for the first time in supplementary submissions. I accept that submission.
25 Once again, the contention of unfairness has to confront the fact that the reliance on these additional matters on the question of restitution was made on notice to AU. The contention that AU was in some way disabled from responding or objecting is, upon analysis, unconvincing. Even if, when AU became aware that the matters of which it now complains were being urged on the issue of repudiation there were no extant leave to make further submissions, it would have been competent for AU, consistently with the matters which it now urges, to have sought leave to make further written submissions or to have objected to the Court considering the “offending submissions”. In the present case this procedure need not have been resorted to. AU saw the offending submissions before it filed its own. There must always be an entitlement for a litigant, before judgment has been delivered, to raise with the Court an issue of importance relative to the adjudication. For instance, if a party became aware, after the conclusion of trial and before judgment was delivered, that the judge was affected by some financial interest which might create a reasonable apprehension of bias, surely it would be competent, and perhaps obligatory, if the argument were not to be treated as waived, for it to be raised before a judgment is delivered. If any sort of matter is sought to be raised during the time when judgment is reserved, so long as it is done upon notice to the other party, both parties can be heard and the Court can determine whether, in the circumstances, the matter may be raised.
26 Finally, Mr Wood complained about the unfairness of, on the one hand, taking a wide view of the scope of the pleading as to Ecmoho’s situation and its ability to rely on arguments other than “you repudiated first” on the issue of repudiation, on the one hand, and holding AU strictly to its pleadings. For the reasons already explained, I reject the contention that Ecmoho was allowed to travel beyond its pleaded case on the issue of repudiation. The premise of the argument as to an unfair discrimination between the parties, therefore, does not exist.
27 In my view, therefore, the summons should be dismissed. I will reserve the question of costs.
28 The orders are:
(1)Summons dismissed.
(2)Costs reserved.
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