Paul Mitchell Systems (Australia) Pty Ltd v Paul Mitchell Systems Pte Ltd - [1995] FCA 573

C A T C H W O R D S

C O N T R A C T - trade practices - appeal against judgment - assessment of credibility of witnesses - demeanour evidence - power of appellate court to review first instance decision on conflicting testimony - hearsay - construction of contracts - whether implied terms - general contractual duty of co-operation - conduct of parties in determining costs - appeal allowed in part and otherwise dismissed.

Cheshire & Fifoot Law of Contract 6th Australian Edition

Trade Practices Act 1974 s.52

B.P. Refinery Westernport Pty Ltd v. Shire of Hastings (1977) 52 ALJR 20
Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337
Poseidon Ltd v. Adelaide Petroleum N.L. (1991) 105 ALR 25
Devries v. Australian National Railways Commission (1992) 177 CLR 472
R. v. Earl of Banbury (1695) 90 ER 231
S.S. Hontestroom v. S.S. Sagaporack [1927] AC 37
Cummings v. Lewis (1993) 41 FCR 559

PAUL MITCHELL SYSTEMS (AUSTRALIA) PTY LTD v. PAUL MITCHELL SYSTEMS PTE. LTD and WALTER LAU LOKE LIM also known as LAU LOKE LIM and LOW LOKE LIM
WAG 158 of 1993

FRENCH, LEE and COOPER JJ.
PERTH
21 JULY 1995

IN THE FEDERAL COURT )
OF AUSTRALIA                  )
WESTERN AUSTRALIA     )
DISTRICT REGISTRY         )
GENERAL DIVISION         )  No. WAG 158 of 1993

ON APPEAL from a decision of the
Federal Court of Australia

B E T W E E N:                   PAUL MITCHELL SYSTEMS (AUSTRALIA)
  PTY LTD
  Appellant

and
PAUL MITCHELL SYSTEMS PTE LTD

First Respondent

and
WALTER LAU LOKE LIM also known as
LAU LOKE LIM and LOW LOKE LIM

Second Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER:  FRENCH, LEE AND COOPER JJ.
DATE OF ORDER:             21 JULY 1995
WHERE MADE:                 PERTH
THE COURT ORDERS THAT:

The appeal is allowed by substituting for the learned trial judge's answers to questions 3 and 4 the following:
(i)Answer to Question 3 - No.
(ii)Answer to Question 4 - No, but the agreement was varied by the letter dated 21 June 1990 in the terms set out in

that letter.

The appeal be otherwise dismissed.
The appellant pay two thirds of the respondents' costs of the appeal.
The parties have leave within fourteen (14) days to bring in a minute of any consequential orders that may be necessary.

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

IN THE FEDERAL COURT     )
OF AUSTRALIA  )
WESTERN AUSTRALIA         )
DISTRICT REGISTRY            )
GENERAL DIVISION            )       No. WAG 158 of 1993

ON APPEAL from a decision of
the Federal Court of Australia

B E T W E E N: PAUL MITCHELL SYSTEMS (AUSTRALIA)
PTY LTD

Appellant

and

PAUL MITCHELL SYSTEMS PTE. LTD

First Respondent

and

WALTER LAU LOKE LIM also known as
LAU LOKE LIM and LOW LOKE LIM

Second Respondent

CORAM:   FRENCH, LEE AND COOPER JJ.
PLACE:       PERTH
DATE:         21 July 1995

REASONS FOR…

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: [1995] FCA 573
Decision Date: 21 Jul 1995

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal in the case of Paul Mitchell Systems (Australia) Pty Ltd v Paul Mitchell Systems Pte Ltd. The case involved disputes over a distributorship agreement between the parties, including questions about the terms of the agreement, whether there was a collateral agreement, and whether the agreement had been varied. The appeal was heard by French, Lee, and Cooper JJ. The primary issues were whether certain representations made by a representative of the first respondent were terms of the agreement or the basis of a collateral agreement, and whether the agreement had been varied. The Full Court found that the alleged representation was not made and that the agreement had not been varied as claimed. Regarding implied terms, the court found that some of the terms alleged by the respondents were indeed implied in the agreement. The court also addressed the issue of costs, determining that the trial judge's order was fair and within his discretion. The appeal was dismissed, with the appellant ordered to pay two-thirds of the respondents' costs of the appeal.

Orders