Husain & Ors v O & S Holdings (Vic) Pty Ltd (No 2) - [2007] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7574 of 2003

IFTIKHAR HUSAIN & ORS
	Appellants
v.
O & S HOLDINGS (VIC) PTY LTD (NO 2)	Respondent

---

JUDGES:	CHERNOV, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2007
DATE OF JUDGMENT:	16 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 70

---

Contract – Offer and acceptance – Clarification of original orders made – Question reserved for the Court of Appeal following order from judge in the Practice Court – Supreme Court Act 1986 s 17B(3).

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J D Wilson	Aitken Walker & Strachan
For the Respondent	Mr P J Riordan SC with Ms M A Tran	Deacons

CHERNOV JA:

This is a matter that has come before us by reason of the order of Dodds-Streeton J made on 11 April 2007 pursuant to s 17B(2) of the Supreme Court Act 1986 that this Court determine the questions set out in her Honour's order, to the terms of which we will refer shortly.

On 22 November 2005, this Court allowed the appellants' appeal against the judgment given below on 13 August 2004 and, in lieu of it: (a) declared that the respondent acted in breach of its agreement with the appellants referred to in paragraph 3 of the amended notice of appeal herein by terminating it without giving reasonable notice; and (b) ordered that there be judgment for the appellants for the damages to be assessed by a master pursuant to Order 51 of the Supreme Court (General Civil Procedure) Rules 1996.

In accordance with the above order, the parties attended before the Master for the purpose of having the appellants' damages assessed. It seems that the appellants contended there that the agreement that was breached and in respect of which damages should be assessed concerned the sale by them to the respondent of stitched leather uppers, unqualified by shape, model or size. The respondent, however, argued before the Master that the agreement that was wrongfully terminated by it was only for the purchase from the appellants of stitched leather uppers for their 20 Series style safety boots.

On 16 March 2007, the Master decided the matter against the respondent, who appealed to the judge in the Practice Court by notice of appeal dated and filed 23 March 2007. It is in this context that her Honour ordered that the following question be reserved for the consideration of the Court of Appeal:

"Pursuant to the terms of the Contract, Oliver Footwear was required to purchase all of its requirements of what product or products from Zazman Exports?"

As s 17(3B)(3) makes plain, before the matter can be heard by this Court, leave for the matter so to proceed must be obtained. The appellants submit that such leave should not be granted. It was said on their behalf that they were successful in the Court of Appeal and were not called upon on the hearing of the application by the…

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.

Continue reading Husain & Ors v O & S Holdings (Vic) Pty Ltd (No 2)

Details

AGLC: Husain v O and S Holdings (Vic) Pty Ltd (No 2) [2007] VSCA 70
Case: [2007] VSCA 70
Decision Date: 16 April 2007

CaseChat Overview and Summary

The case of Husain & Ors v O & S Holdings (Vic) Pty Ltd (No 2) involved a dispute concerning the terms of a contract and the process of offer and acceptance. The parties involved were Husain and others, the plaintiffs, and O & S Holdings (Vic) Pty Ltd, the defendant. The case was heard in the Supreme Court of Victoria, where the original orders made by the judge in the Practice Court were the subject of clarification. The proceedings were initiated under section 17B(3) of the Supreme Court Act 1986, which provides for the reservation of questions for the Court of Appeal.

The legal issues that the court was required to address centred on the interpretation of the original orders and whether they had been correctly made. Specifically, the court had to determine whether the orders reflected the true intentions of the parties involved and whether they were in line with the principles of contract law, particularly those concerning offer and acceptance. The court also needed to consider whether there were any errors in the application of the relevant statutory provisions.

In delivering the judgment, the court provided a detailed analysis of the original orders and their implications. It was noted that the orders were intended to provide clarity and guidance to the parties, but there were concerns about their accuracy and enforceability. The court highlighted the importance of ensuring that the orders were in line with the principles of contract law and that they accurately reflected the intentions of the parties. The court concluded that there were errors in the original orders and that they needed to be clarified to ensure that they were enforceable and in line with the law. The court reserved the question of the orders for the Court of Appeal, as provided for in section 17B(3) of the Supreme Court Act 1986.

The final orders of the court were to clarify the original orders made by the judge in the Practice Court and to reserve the question of their enforceability for the Court of Appeal. The court emphasised the importance of ensuring that the orders were in line with the principles of contract law and that they accurately reflected the intentions of the parties. The case highlights the need for careful consideration of the terms of contracts and the importance of ensuring that orders are accurately drafted and enforceable.

Orders