Pivot v Hoechst - [2000] VSC 262

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

No. 5973 of 1999

PIVOT and ANOR	Plaintiffs
v.
HOECHST and ANOR	Defendants

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JUDGE:	HEDIGAN, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2000
DATE OF JUDGMENT:	27 June 2000
CASE MAY BE CITED AS:	Pivot & Anor v. Hoechst & Anor, Universal Foods Third Party
MEDIUM NEUTRAL CITATION:	[2000] VSC 262

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Service out of the jurisdiction – Third party proceedings – Rules 7.01(f) and 7.02(3) of Rules – Claim in contract – Whether contract made within Victoria.

Rule 7.07(3) – Whether appropriate to permit joinder in of claims in tort and for breach of statutory duties.

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APPEARANCES:

Counsel

Solicitors

For the 1st & 2nd Defendants

For the Third Party

Mr A. Flower

Mr A. Klotz

Jeffrey Willetts & Associates

Norris Coates

HIS HONOUR:

This is an application by the third party in the proceeding Universal Foods Corporation (hereinafter called "Universal Foods") that the service on it out of the jurisdiction of a third party notice, and the third party notice itself, be stayed on the basis that the claims set out in the statement of claim endorsed on the third party notice do not fall within Rule 7.01(1)(f)(i), (g)(i) or (j) of the Rules.

The proceeding is one in which the plaintiffs ("Pivot" and "Gibsons" respectively) have sued Hoechst Australia Ltd. ("Hoechst") and ARMS International Pty. Ltd. with respect of certain consequences flowing from the sale and supply by the defendants of the yeast product known as Redstar Phaffia ("Redstar Phaffia").

According to the allegations in the statement of claim, the plaintiffs were the suppliers of Aquaculture Feed Rations in Tasmania and the defendants imported Redstar Phaffia. Another company, Nortas Pty. Ltd. ("Nortas") grew and farmed semen fish at Mornington in Tasmania. The position apparently is that the practice in the semen farming industry is to introduce into the diet of the farm fish a pigment that would produce in the farm fish a red-pink colouration of the flesh, colouration that occurred naturally in free ocean salmon. The claim is that the defendants represented to Nortas and the plaintiffs that Redstar Phaffia would produce this colouration introduced into the diet of the farm salmon fish and that it had other characteristics not here necessary to set out. The claim is that the representations made by the defendants were false in that Redstar Phaffia failed to produce adequate colouration of the flesh of the fish and lacked the qualities in other respects allegedly represented. These representations are said to have been made from December 1992 until about August 1994 and continuing. Nortas, relying upon the representations took supply and delivery of the Aquaculture feed with the Redstar Phaffia added from the plaintiffs between January 1995 and July 1996. The plaintiffs, also relying upon the defendants' representation, had ordered and taken delivery of the quantities of Redstar Phaffia in the same period from the defendants. Thus the plaintiffs manufactured and delivered to Nortas fish food pellets containing Redstar Phaffia bought…

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.

Continue reading Pivot v Hoechst

Details

AGLC: Pivot v Hoechst [2000] VSC 262
Case: [2000] VSC 262
Decision Date: 27 June 2000

CaseChat Overview and Summary

Pivot Pty Limited brought proceedings against Hoechst Australia Limited in the Supreme Court of Victoria. Pivot sought damages for losses arising from a contract of sale of goods. Pivot alleged that the contract was made in Victoria and that Hoechst was liable for breach of the contract. Hoechst sought to set aside the service of the statement of claim on the basis that the court lacked jurisdiction. Hoechst submitted that the contract in question was not made in Victoria and that the court should decline to exercise its jurisdiction over Hoechst.

The court considered whether it had jurisdiction to hear the matter. The court held that it was appropriate to permit the joinder of claims in tort and for breach of statutory duties. The court found that it was appropriate to exercise its jurisdiction over Hoechst. The court held that the contract in question was made in Victoria, and therefore the court had jurisdiction over Hoechst.

The appeal was dismissed with costs. The court held that it was appropriate to permit the joinder of claims in tort and for breach of statutory duties. The court found that it was appropriate to exercise its jurisdiction over Hoechst. The court held that the contract in question was made in Victoria, and therefore the court had jurisdiction over Hoechst.

Orders