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EMCL Pty Ltd v ESANDA Finance Corp Ltd

EMCL Pty Ltd v ESANDA Finance Corp Ltd

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FEDERAL COURT OF AUSTRALIA
EMCL Pty Ltd v ESANDA Finance Corp Ltd [1999] FCA 978
CONTRACT – construction of oral variation – whether on construction of the contract respondent entitled to commission – whether notice a condition precedent to right to sell or entitlement to commission – proper basis for calculation of entitlement
PRACTICE AND PROCEDURE – leave required to appeal from discretionary ruling of trial judge – where court below refused to entertain arguments after judgment
COSTS – apportionment
Federal Court of Australia Act 1976 (Cth) s 51(A)(1)
Income Tax Assessment Act 1997 (Cth)
Corporations Law
Penalty Interest Rates Act1983 (Vic)
Associated Newspapers Ltd v Bancks (1951) 83 CLR 322, applied
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, applied
House v The King (1936) 55 CLR 499, applied
Namol Pty Ltd v AW Baulderstone Pty Ltd [No 2] (1993) 47 FCR 388, followed
Kettle Chip Co Pty Ltd v Apand Pty Ltd (1998) 155 ALR 134, followed
Nagy v Masters Dairy Ltd (1996) 150 ALR 273, followed
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, applied
EMCL PTY LTD AND FINPAC HOLDINGS LIMITED v
ESANDA FINANCE CORPORATION LIMITED
V 18 OF 1999
TAMBERLIN, SUNDBERG & DOWSETT JJ
MELBOURNE
20 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 18 OF 1999

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

EMCL PTY LTD
(ACN 007 347 622)
First Appellant

FINPAC HOLDINGS LIMITED
Second Appellant

AND:

ESANDA FINANCE CORPORATION LIMITED
(ACN 004 346 043)
Respondent

JUDGE:

TAMBERLIN, SUNDBERG & DOWSETT JJ

DATE OF ORDER:

20 JULY 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The appeal is allowed in part.
2.   The application for leave to appeal from Heerey J’s ruling on 17 November 1999, refusing to hear a new argument on clause 4(b) of the Master Discount Agreement dated 2 January 1999, is refused.
3.   The application for leave to claim damages for breach of clause 4(c) is refused.
4.   The cross-appeal is allowed.
5.   Orders 1, 7 and 9 made at first instance on 18 December 1998 are set aside.
6.   There be judgment for the appellant against the respondent for $27,587.04 together with interest at the rate of 9% for the period 18 December 1998 to the date hereof.
7.   It is declared that the calculation of any amounts due pursuant to clause 4(b) of the Master Discount Agreement dated 2 January 1990, be referred to a single judge to determine whether the appropriate discount rate should be chosen having regard to the interest rates agreed by the experts and used in connection with the calculations that appear in the Appeal Book at pp 1663-4, or whether those calculations ought to have been made using discount rates based upon an interest rate or interests rates to be derived from the Agreement and from the leases entered into pursuant thereto.
8.…

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: [1999] FCA 978
Decision Date: 20 JULY 1999

CaseChat Overview and Summary

The matter of EMCL Pty Ltd v ESANDA Finance Corp Ltd was heard by the court, where the primary dispute involved the interpretation and application of specific clauses in the Master Discount Agreement dated 2 January 1999. The appeal in this case was brought by the appellant against the respondent, focusing on the correctness of the decisions made at first instance and the interpretation of certain clauses in the agreement. The cross-appeal was also considered, addressing additional issues raised by the respondent.

The court was tasked with determining several key legal issues. These included whether the appellant was entitled to claim damages for breach of clause 4(c) of the Master Discount Agreement, whether the appellant should be granted leave to appeal a previous ruling on clause 4(b), and the interpretation of clause 4(b) itself concerning the appropriate discount rate to be applied. The court also had to address the broader implications of the parties' submissions regarding the orders made at first instance, particularly Orders 1, 7, and 9.

In its reasoning, the court allowed the appeal in part, while refusing the application for leave to appeal on certain issues and the application for damages for breach of clause 4(c). The court allowed the cross-appeal, setting aside Orders 1, 7, and 9 made at first instance. The court found in favour of the appellant, ordering judgment for $27,587.04 plus interest. The court also directed that the calculation of amounts due under clause 4(b) be referred to a single judge to determine the correct discount rate. Finally, the court instructed the parties to prepare draft Short Minutes of Orders regarding the costs of the trial and appeal.

The final orders included allowing the appeal in part, refusing the applications for leave to appeal and for damages, allowing the cross-appeal, setting aside certain previous orders, and directing the referral of the discount rate calculation to a single judge. The court also mandated that the parties prepare draft Short Minutes of Orders concerning the costs of the trial and appeal.

Orders

Orders of the court

1. The appeal is allowed in part.

2. The application for leave to appeal from Heerey J’s ruling on 17 November 1999, refusing to hear a new argument on clause 4(b) of the Master Discount Agreement dated 2 January 1999, is refused.

3. The application for leave to claim damages for breach of clause 4(c) is refused.

4. The cross-appeal is allowed.

5. Orders 1, 7 and 9 made at first instance on 18 December 1998 are set aside.

6. There be judgment for the appellant against the respondent for $27,587.04 together with interest at the rate of 9% for the period 18 December 1998 to the date hereof.

7. It is declared that the calculation of any amounts due pursuant to clause 4(b) of the Master Discount Agreement dated 2 January 1990, be referred to a single judge to determine whether the appropriate discount rate should be chosen having regard to the interest rates agreed by the experts and used in connection with the calculations that appear in the Appeal Book at pp 1663-4, or whether those calculations ought to have been made using discount rates based upon an interest rate or interests rates to be derived from the Agreement and from the leases entered into pursuant thereto.

8. The parties provide to members of the Court draft Short Minutes of Orders as to the costs of the trial and the appeal together with submissions thereon within fourteen (14) days having regard to these reasons for decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 18 OF 1999

BETWEEN:	EMCL PTY LTD (ACN 007 347 622) First Appellant FINPAC HOLDINGS LIMITED Second Appellant
AND:	ESANDA FINANCE CORPORATION LIMITED (ACN 004 346 043) Respondent
JUDGE:	TAMBERLIN, SUNDBERG & DOWSETT JJ
DATE OF ORDER:	20 JULY 1999
WHERE MADE:	MELBOURNE