Moraghan & Anor v Cospak Pty Ltd

[2007] VSC 483

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10222 of 2006

IN THE MATTER of an appeal under s 109 of the Magistrates’ Court Act 1989

B E T W E E N

PHILLIP JOHN MORAGHAN and JENNIFER MORAGHAN (Trading as Curly Flat Vineyard)	Appellants
v
COSPAK PTY LTD (ACN 099 742 784)	Respondent

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2007
DATE OF JUDGMENT:	23 November 2007
CASE MAY BE CITED AS:	Moraghan & Anor v Cospak Pty Ltd
MEDIUM NEUTRAL CITATION:	[2007] VSC 483	Revised 4 December 2007

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Enforceable agreement where terms incomplete – Express term of a contract – Goods and Services Tax – GST on damages – Appeal under s 109 of the Magistrates’ Court Act 1989 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr R Harris	Settle Legal
For the Respondent	Mr M Stirling	Monahan + Rowell

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Factual Background........................................................................................................................... 3

Enforceable Agreement?................................................................................................................... 5

Express Term..................................................................................................................................... 12

GST..................................................................................................................................................... 16

HIS HONOUR:

Introduction

1. This is an appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) (“the Act”) from a decision of the Melbourne Magistrates’ Court delivered on 13 November 2006.

1. On that date the Court delivered a decision in which the present respondent succeeded in obtaining judgment against the present appellants in the sum of $18,222.00.  The order made by the Court was that the sum of $18,222.00 be paid by the appellants together with interest of $2,048.35 and costs fixed at $8,760.25. 

1. A notice of appeal pursuant to s 109 of the Act was filed in this Court and amended pursuant to an order made by Master Efthim on 5 February 2007. The amended notice of appeal refers to seven questions of law said to be raised on appeal. Two of those questions – whether or not the respondent owed the appellants a duty of care in negligence and/or contract, and whether there was a breach of such a duty by the respondent – were not argued before me. The remaining questions of law raised on this appeal can be identified in three categories:

(a)whether or not an enforceable agreement was reached between the parties in March 2004;

(b)whether it was an express term of the agreements between the parties in relation to the type of 3 litre bottles that would be supplied by the respondent to the appellants; and

(c)whether the sum awarded by the Magistrates’ Court to the respondent should have been exclusive of Goods and Services Tax (GST) and whether, in calculating the quantum of the loss of the appellants, that amount should have been exclusive of GST.

Factual Background

1. The evidence before the learned Magistrate indicated that the plaintiff, Cospak Pty Ltd of Braeside, was a wholesale distributor of packaging products including glass wine bottles.

1. The appellants conducted a business known as “Curly Flat Vineyard”. 

1. On 26 March 2001, or thereabouts, the appellants, whose vineyard was in…