Motionx Pty Ltd v Evok3d.com Pty Ltd

[2022] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION:	Motionx Pty Ltd V Evok3d.com Pty Ltd [2022] QDC 124
PARTIES:	MOTIONX PTY LTD
Applicant
v
EVOK3D.COM PTY LTD
Respondent
FILE NO/S:	TD 927/2022
DIVISION:	Civil
DELIVERED ON:	19 May 2022 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2022
JUDGE:	Barlow QC DCJ

ORDERS:	1.	It is declared that a binding contract was entered into between the Applicant and the Respondent on 27 October 2021 when the Applicant accepted, in writing, the Respondent’s written offer dated 26 October 2021 (the Settlement Agreement).
2.	It is declared that the Respondent is in breach of the Settlement Agreement.
3.	The respondent pay to the Applicant any loss and damage suffered by the Applicant as a consequence of the Respondent’s breach of the Settlement Agreement, such loss and damage to be assessed.
4.	This proceeding be placed on the Commercial List.
5.	The Respondent pay the Applicant’s costs of the application to date.
6.	Draft directions for the matter to proceed to assessment be provided to his Honour Judge Barlow’s associate by 4:00pm on 25 May 2022.

CATCHWORDS:  CONTRACTS – GENERAL CONTRACTUAL

PRINCIPLES	–	CONSTRUCTION	AND
INTERPRETATION	OF	CONTRACTS	–
INTERPRETATION	OF	MISCELLANEOUS

CONTRACTS AND OTHER MATTERS – an offer and its acceptance were conducted via email – whether the proposal of a date for settlement in the acceptance email was a new proposed term – whether a contract was formed upon that acceptance – whether time was, or was later made, of the essence – whether failure to settle by the specified date was a breach of contract

Clive v Beaumont [1848] 1 De G & Sm 397
Costello v Loulakas [1938] St R Qd 267
King Tide Company Pty Ltd v Arawak Holdings Pty Ltd
[2017] QCA 251
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty
Ltd (1989) 166 CLR 621

Toohey v Golder [2021] QSC 277

COUNSEL:	J Faulkner for the applicant J K Meredith for the respondent
SOLICITORS:	HWL Litigation for the applicant Macpherson Kelley for the respondent

1. In about June 2019 the parties to this proceeding entered into a contract by which the applicant purchased from the respondent a 3D printer. The printer was designed to make podiatry orthotic devices. Over the months following that purchase the applicant became more and more dissatisfied with the printer and contended that it did not operate properly and the respondent had breached and continued to breach its obligations under the contract. The parties negotiated with each other for some time. Those negotiations ultimately led to their solicitors exchanging the following correspondence.

2. On 26 October 2021 the respondent’s solicitor wrote to the applicant’s solicitor an email in which the respondent’s solicitor said that the respondent did not accept an earlier offer that had been made by the applicant. The solicitor went on to say:

   However, our client is prepared to make a further counter offer on the following basis.

• Our client will novate or pay out the financed amount on the printer. Please…