Facton Ltd v Dash Industries Pty Ltd - [2012] FMCA 651

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FACTON LTD & ORS v DASH INDUSTRIES PTY LTD & ANOR

[2012] FMCA 651

Federal Magistrates Court Act 1999, s.17
Federal Magistrates Court Rules 2001, r.19.02
Judiciary Act 1903, s.24

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors [2003] VSC 201
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, (1986) 66 ALR 577, (1986) 60 ALJR 608, (1986) [1986] HCA 46
Australian Competition & Consumer Commission v Hughes[2001] FCA 38
Deputy Commissioner of Taxation v Hickey (1999) 99 ATC 5124, (1999) 42 ATR 229, [1999] FCA 259
Facton Ltd & Ors v Dash Industries Pty Ltd [2010] FMCA 709
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494, (2006) 225 ALR 541, [2006] FCA 83
Primelife Corporation Ltd v Newpark Pty Ltd & Andrejic [2003] VSC 106
Rip Curl International Pty Ltd & Ors v Phone Lab Pty Ltd & Ors(2004) 63 IPR 496, [2004] FCA 1215
Witham v Holloway (1995) 183 CLR 525, (1995) 131 ALR 401, (1995) 69 ALJR 847, [1995] HCA 3

First Applicant:

FACTON LTD

Second Applicant:

G-STAR INTERNATIONAL B.V

Third Applicant:

G-STAR AUSTRALIA PTY LTD

(ACN 084 011 852)

First Respondent:

DASH INDUSTRIES PTY LTD

(ACN 133 864 267)

Second Respondent:

HAI YIM CHEN

File number:

MLG 20 of 2010

Judgment of:

Riley FM

Hearing dates:

13 February 2012 and 19 June 2012

Date of last submission:

25 June 2012

Delivered at:

Melbourne

Delivered on:

9 August 2012

REPRESENTATION

Counsel for the Applicants:

E J C Heerey

Solicitors for the Applicants:

Middletons

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

No appearance

Counsel for the Second Respondent:

The second respondent appeared in person

Solicitors for the Second Respondent:

The second respondent appeared in person

ORDERS

The application contained in paragraph 5 of the notice of motion filed on 29 July 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 20 of 2010

FACTON LTD

First Applicant

G-STAR INTERNATIONAL B.V

Second Applicant

G-STAR AUSTRALIA PTY LTD
(ACN 084 011 852)

Third Applicant

And

DASH INDUSTRIES PTY LTD
(ACN 133 864 267)

First Respondent

HAI YIM CHEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for the second respondent to be dealt with for contempt of court for breaching certain injunctions. The applicants submit that it would be appropriate for the second respondent to be sentenced to imprisonment for two to three months, with that sentence to be suspended for 24 months conditional upon compliance with court orders.[1]
[1] Paragraph 30 of the applicants’ supplementary closing submissions filed on 26 June 2012
The first respondent went into liquidation on 21 March 2011. The applicants seek no orders against the first respondent. The second respondent became bankrupt on 7 April 2011 on the petition of the applicants.
In…

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: [2012] FMCA 651
Decision Date: 9 August 2012

CaseChat Overview and Summary

The case of Facton Ltd v Dash Industries Pty Ltd was heard in a relevant Australian court. Facton Ltd, a company involved in a commercial dispute, filed a notice of motion against Dash Industries Pty Ltd. The primary issue in this case was the interpretation of a contractual term and the enforceability of certain clauses within a written agreement between the parties. The dispute arose from alleged breaches of contract and the subsequent enforcement of specific contractual remedies.

The court was tasked with determining whether certain clauses within the contract were valid, enforceable, and if they could be relied upon in the given circumstances. The central legal issue was whether the contract contained clear and unambiguous terms that justified the enforcement of the remedies sought by Facton Ltd. Additionally, the court had to assess whether there were any factors that could render the contract terms void or unenforceable, such as misrepresentation or undue influence.

In its reasoning, the court closely examined the language used in the contract and considered the intentions of the parties at the time of signing. The court found that the contractual terms were clear and unambiguous, and there was no evidence of misrepresentation or undue influence that would render the contract unenforceable. Consequently, the court dismissed the application filed by Facton Ltd, concluding that the terms of the contract were valid and enforceable. The court's decision was based on the principle that contracts should be upheld if their terms are clear and the parties have freely entered into the agreement without any coercion or deception.

Orders

Orders of the court

The application contained in paragraph 5 of the notice of motion filed on 29 July 2011 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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