Laurus Group Pty Ltd v Mitsui & Co (Australia) Ltd - [2022] VSC 360

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 05931

BETWEEN:

LAURUS GROUP PTY LTD AS TRUSTEE FOR THE LAURUS GROUP UNIT TRUST (ACN 131 050 363)	Plaintiff/First Defendant by Counterclaim
and
MITSUI & CO (AUSTRALIA) LTD (ACN 004 349 795)	Defendant/Plaintiff by Counterclaim
and
DAVID BRANDI	Second Defendant by Counterclaim

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 and 28 April 2022, 3, 4, 5 and 11 May 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Laurus Group Pty Ltd v Mitsui & Co (Australia) Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 360

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CONTRACT – Offer and acceptance – Exchange of emails – Whether parties made binding contract – When was the contract formed – Battle of the forms – Whether email constituted acceptance or counteroffer – Which terms and conditions applied to the contract – Authority to contract – Acceptance by conduct – Last shot doctrine – Higher status doctrine –– Damages – Quantification of loss and damage – Penalties – Liquidated damages term – Whether late payment fees unenforceable – Damages for loss of opportunity – Court must ask whether there was a commercial opportunity of some value - Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 – Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88 – Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 –NJ Capital Pty Ltd v AMKI Property Holdings Pty Ltd [2021] NSWSC 1462 – Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 – Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.

ESTOPPEL – Estoppel by convention – Whether distinct from promissory estoppel – Whether party suffered detrimental reliance – Whether party believed guarantee was not legally binding – MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 – Moratic Pty Ltd v Gordon [2007] NSWSC 5 – Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205 – Ryledar Pty Ltd t/as Volume Plus v Euphoric Pty Ltd (2007) 69 NSWLR 603.

EVIDENCE – Whether photograph of document is sufficient evidence – Whether photograph is unenforceable by reason of non-compliance with s 126 of the Instruments Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Defendants by Counterclaim	Mr D Williams QC and Mr P Miller	Keypoint Law Pty Limited
For the Defendant and Plaintiff by Counterclaim	Mr C Brown	Corrs Chambers Westgarth

HIS HONOUR:

Introduction

The plaintiff, which carries on business under the name Australian Pipe and Tube (‘APT’), owns and operates a steel mill business. Up until July 2021, the second defendant by counterclaim, David Brandi (‘Mr Brandi’), was its sole director. The steel mill is located in Ravenhall, Victoria (‘the steel mill’) and is owned by a related entity, Australian Steel Assets Pty Ltd, the sole…

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: [2022] VSC 360
Decision Date: 24 June 2022

CaseChat Overview and Summary

In the Federal Court of Australia, Laurus Group Pty Ltd sued Mitsui & Co (Australia) Ltd over a contract dispute. The plaintiff claimed that the defendant had breached a contract for the supply of goods, while the defendant argued that no binding contract was formed and that the plaintiff's claim for damages was unfounded. The court needed to determine whether a binding contract existed, when the contract was formed, and which terms applied. The court also had to decide whether the plaintiff could claim damages for loss of opportunity and whether certain late payment fees were enforceable.

The court examined the exchange of emails between the parties to ascertain when and if a contract was made. It considered the battle of the forms and whether the defendant's email constituted an acceptance or a counteroffer. The court found that the contract was formed when the plaintiff's final email, which included the defendant's terms, was sent. The court applied the last shot doctrine and held that the defendant's terms prevailed. The court also held that the plaintiff had the authority to contract and that the defendant's acceptance was implied by conduct.

The court held that the defendant was liable for breach of contract and awarded the plaintiff damages for the cost of goods supplied. The court found that the late payment fees were unenforceable as penalties under the ACL. However, the court held that the plaintiff could claim damages for loss of opportunity, as there was a commercial opportunity of some value. The court awarded the plaintiff $200,000 in damages for loss of profit on a contract with a third party. Finally, the court held that a photograph of a document was sufficient evidence, and that it was not unenforceable under s 126 of the Instruments Act 1958 (Vic).

Orders