MLW Technology Pty Ltd v May

[2005] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.  2085 of 2002

M.L.W. TECHNOLOGY PTY LTD and MARTIN YII
	Appellants
v.
ROGER THOMAS MAY	Respondent

---

JUDGES:	WINNEKE, P., BUCHANAN, J.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2004
DATE OF JUDGMENT:	28 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 29

---

CONTRACT – Exclusive licence agreement – Consideration being issue of shares – Licensee warranting value 12 months after execution of agreement – Warranted value not achieved – Breach of warranty – Entitled to damages where plaintiff retains shares – Whether agreement provided exclusive code of remedies – A presumption against party to a contract abandoning remedies at common law in absence of clear words.

PRACTICE – Withdrawal of concession mistakenly made at trial by counsel – Point argued on appeal.

VALIDITY OF NOTICE given seeking enforcement of a contract term where notice did not comply with clause – Failure to specify time – How the reasonable recipient would understand the notice.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C.L. Pannam, Q.C. and Mr M.A. Robins	Nathan Kuperholz
For the Respondent	Mr M.S. Goldblatt	Madgwicks

WINNEKE, P.:

1. For the reasons given by Gillard, A.J.A., I agree that the appeal should be allowed and that the judgment entered on 4 July 2003 and the order for costs made on 29 July 2003 should be set aside; and that in lieu thereof there should be judgment for the plaintiffs/appellants in the sum of $2,271,117.50 or, alternatively, the grant of an order for specific performance in terms to be settled, if the plaintiffs/appellants so desire.   I also agree that the plaintiffs/appellants should have their costs of the trial and the appeal.

BUCHANAN, J.A.:

1. In my opinion this appeal should be allowed for the reasons stated by Gillard, A.J.A. and judgment entered and orders made as his Honour proposes.

GILLARD, A.J.A.:

1. This is an appeal by a company and its director against a judgment of a judge of the Trial Division, whereby the company recovered only nominal damages having proven a breach of a contract by the defendant.  The director, who was a defendant to an unsuccessful counterclaim, joins in the appeal in respect to the costs order made by the trial judge which did not include an order for costs in his favour.  However, the ground of appeal was abandoned. 

Parties

1. The plaintiff, M.L.W. Technology Pty Ltd (“the plaintiff”) is a company which was first registered in 1987 and at all relevant times its directors were Mr and Mrs Yii.  In 2001 it had rights to a product known as MIM 1000 Mobile Display Terminal (“the product”) which comprised a computer display terminal capable of installation in motor vehicles in order to streamline and control despatch and co‑ordination of fleet vehicles.  It was used to track and locate vehicles, and to send to and receive information from the computer system in the office of the organisation

in control of the motor vehicle. 

1. The defendant, Roger Thomas May (“Mr…