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InterTAN Inc v DSE (Holdings) Pty Ltd

InterTAN Inc v DSE (Holdings) Pty Ltd

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FEDERAL COURT OF AUSTRALIA
InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54
PRACTICE AND PROCEDURE – costs – award of indemnity costs – appeal
Andrews v Barnes (1887) 39 Ch D 133 applied
Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2004] FCAFC 174 cited
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483 applied
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397 applied
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch (No 2) (1993) 46 IR 301 applied
NMFM Property Pty Ltd v Citibank Ltd (No.2) (2001) 109 FCR 77 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 applied
Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) applied
Wilcox, Re; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 cited
INTERTAN INC AND INTERTAN CANADA LIMITED v DSE (HOLDINGS) PTY LIMITED
NSD 1491 of 2004
RYAN, FINKELSTEIN & BENNETT JJ
29 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

On Appeal from a Judge of the Federal Court of Australia
NSD 1491 of 2004

BETWEEN:

INTERTAN INC and
INTERTAN CANADA LIMITED
Appellants

AND:

DSE (HOLDINGS) PTY LIMITED
Respondent

JUDGES:

RYAN, FINKELSTEIN & BENNETT JJ

DATE OF ORDER:

29 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The appellants pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1491 of 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:

INTERTAN INC and
INTERTAN CANADA LIMITED
Appellants

AND:

DSE (HOLDINGS) PTY LIMITED
Respondent

JUDGES:

RYAN, FINKELSTEIN & BENNETT JJ

DATE:

29 APRIL 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

The general rule that applies in civil litigation is that costs follow the event and that the costs of the successful party should be taxed on a party and party basis. This rule is so well entrenched that some (but not all) courts have suggested that nothing short of a change in the relevant statute or rules of court would permit a departure from the rule: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, 157-158 per Cooper and Merkel JJ; NMFM Property Pty Ltd v Citibank Ltd (No. 2) (2001) 109 FCR 77, 95 per Lindgren J. This is so notwithstanding that it is now notorious that the gap between costs taxed on a party and party basis and the costs actually payable by the successful party is often so great that sometimes the successful party will only recover in the order of one half of the incurred costs: Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2004] FCAFC 174 at [198] per Heerey, Sundberg and Dowsett JJ.
As…

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: [2005] FCAFC 54
Decision Date: 29 APRIL 2005

CaseChat Overview and Summary

InterTAN Inc appealed against a decision of the Supreme Court of Queensland, which found it liable for damages for breach of a distribution agreement. The dispute centred around the sale of goods under a distribution agreement between the parties. The Supreme Court held that the appellant breached the distribution agreement by selling goods to a third party without the respondent's consent. The court also awarded damages to the respondent for losses resulting from the breach.

The legal issues before the court included whether the appellant breached the distribution agreement by selling goods to a third party without the respondent's consent and, if so, whether the damages awarded were appropriate. The court had to interpret the terms of the distribution agreement and determine the extent of the appellant's obligations under the agreement. Additionally, the court needed to assess the appropriateness of the damages awarded to the respondent.

The court found that the appellant breached the distribution agreement by selling goods to a third party without the respondent's consent. The court held that the terms of the distribution agreement were clear and unambiguous, and that the appellant had violated those terms by engaging in activities that were not authorised by the respondent. The court also found that the damages awarded were appropriate and reflected the losses suffered by the respondent as a result of the breach. The court rejected the appellant's arguments that the damages were excessive or that the respondent had failed to mitigate its losses.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court held that the appellant's appeal was without merit and that the decision of the Supreme Court should be upheld. The court also found that the appellant's conduct during the appeal was unreasonable and that it was appropriate to award costs to the respondent.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the respondent’s costs of the appeal.

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.

BETWEEN:	INTERTAN INC and INTERTAN CANADA LIMITED Appellants
AND:	DSE (HOLDINGS) PTY LIMITED Respondent
JUDGES:	RYAN, FINKELSTEIN & BENNETT JJ
DATE OF ORDER:	29 APRIL 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1491 of 2004

JUDGES:	RYAN, FINKELSTEIN & BENNETT JJ
DATE:	29 APRIL 2005
PLACE:	SYDNEY