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

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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

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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).

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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:

1. 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.

1. 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.

1. 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. 

1. 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?"

1. 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 respondent for special leave to appeal to the High Court.  It was also said that they are keen to advance the hearing of the assessment of damages, given particularly that the proceeding was commenced four years ago.  It was argued that the orders of the Court of Appeal are clear and that no issue is raised that is of public importance such as to warrant the granting of leave. 

1. We consider, however, that it is appropriate that leave be granted.  This Court has dealt with the contractual dispute relatively recently and is able to answer the question without delay and thus facilitate the expeditious assessment of damages.  It is plainly in the interests of the administration of justice and the parties that this matter is resolved as quickly as possible.  We have had the benefit of written outlines of argument from the parties' respective counsel.  We were much assisted by them in the determination of the question posed. 

1. It is obvious enough that the declaration made by the Court on 22 November 2005 must be read in the context of the reasons for judgment.  In our view it is clear that in its decision of 22 November 2005 the Court found that the agreement that was breached by the respondent was for the purchase by it from the appellants of stitched leather uppers for the 20 Series safety boots to be produced by the respondent.  Consequently, the only relevant damage that the appellants could have suffered by reason of the respondent's wrongful termination of the agreement in April 2003 was in respect of the respondent's anticipated production during the following six months of stitched leather uppers for the 20 Series boots.  Thus, we think that the question posed should be answered as follows:

   At the date of the wrongful termination of the contract by the respondent, the respondent was required to purchase from the appellants its requirements of stitched leather uppers for the 20 Series style boots.

2. The orders of the Court are:

   1. Leave is granted pursuant to s 17B(3) of the Supreme Court Act 1986 for this Court to consider and answer the question posed in the order of Dodds-Streeton J made in the proceeding on 11 April 2007.

   2.        The question be answered as follows:

   At the date of the wrongful termination of the contract by the respondent, the respondent was required to purchase from the appellants its requirements of stitched leather uppers for the 20 Series style boots.

   3.        The appellants pay the respondent's costs of the determination of this question.

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