Schib Packaging Srl v Emrich Industries Pty Ltd - [2005] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3763 of 2005

SCHIB PACKAGING S.r.l. (C.F.e.P.I.V.A. 01964950248)
SCHIB PACKAGING S.r.l. (C.F.e.P.I.V.A. 01964950248)	Applicant (Defendant below)
v.
EMRICH INDUSTRIES PTY LTD (ACN 051 408 916)	Respondent (Plaintiff below)

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APPLICATION ON SUMMONS

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JUDGES:	CHARLES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2005
DATE OF JUDGMENT:	7 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 236	1^st revision – 16 November 2005

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Application for leave to appeal – Service out of jurisdiction of County Court writ – Claim for damages for breach of contract – Contract claimed to be made in Victoria – Whether acceptance received in Victoria – Indorsement required by Rule 7.02(1) not included on writ – Whether an irregularity capable of dispensation under Rule 2.04 – Judge not in error in refusing to stay or strike out action – County Court Rules 2.01, 2.04, 7.01(1), 7.02(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M. Clarke	Rigby Cooke Lawyers Carter Newell Lawyers
For the Respondent	Mr M.F. Wheelahan, S.C. with Mr T. McEvoy	Mason Sier Turnbull

CHARLES, J.A.:

This is an application by Schib Packaging S.r.l. ("Schib") under s.74(2D) of the County Court Act 1958 seeking leave to appeal against orders made in the County Court on 2 September 2005. On that day a judge refused Schib's application to strike out or stay the action brought by Emrich Industries Pty Ltd ("Emrich") against Schib.

Schib constructs machinery and conducts its business in Milan, in Italy. It has no place of business in Australia. Emrich is a company incorporated in Australia, conducting business here, principally providing packaging solutions for Australian clients.

Emrich claims in its statement of claim and supporting documents that it discussed with Schib the construction of a machine by Schib and that by facsimile dated 2 April 2003 Schib offered to supply this machine to Emrich at a cost of 130,000 euros. Then, by a purchase order dated 19 June 2003 faxed to Schib, Emrich made a counter offer for a machine with added specifications at a cost of 135,800 euros net to Schib. Emrich claims that this counter offer was accepted by Schib by a facsimile dated 2 July 2003 setting out the terms and conditions, which included, inter alia, delivery at around 30 November 2003 and payment of 39,300 euros with the order. The machine had been commissioned by Emrich for one of its customers, PZ Cussons, with whom Emrich had a supply contract with a potential profit of some $176,680. On 30 June 2003 Emrich paid Schib 39,300 euros, being the first instalment for the order of the machine. Emrich claims, however, that Schib was unable to deliver the machine on time, and by letters exchanged between the parties, Schib requested an extension of time to June 2004 as the final delivery date, which was agreed to by Emrich.

Emrich subsequently inspected the machine and conducted a Factory Acceptance Trial at Schib's works in Italy. Emrich claims that the machine failed the tests and…

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: [2005] VSCA 236
Decision Date: 7 October 2005

CaseChat Overview and Summary

Schib Packaging Srl sought leave to appeal a decision of the County Court of Victoria, which dismissed its claim for damages against Emrich Industries Pty Ltd for breach of contract. The dispute centred on whether a contract had been entered into between the parties, with Schib Packaging alleging that Emrich Industries had breached the contract by failing to supply certain goods. Schib Packaging further contended that the contract was made in Victoria and that acceptance of the contract was received in Victoria. The primary legal issue before the court was whether the failure to include an indorsement on the writ, as required by Rule 7.02(1) of the County Court Rules, constituted an irregularity that could be dispensed with under Rule 2.04. Schib Packaging argued that the irregularity should not prevent the court from exercising its jurisdiction.

The court held that the absence of the indorsement on the writ was a procedural irregularity that could not be overlooked under Rule 2.04, as it was a mandatory requirement. The court further found that the judge was not in error in refusing to stay or strike out the action, as the irregularity was fundamental and went to the court's jurisdiction. The court concluded that the failure to include the indorsement on the writ meant that the court did not have jurisdiction to hear the matter, and therefore, the application for leave to appeal was dismissed. The court did not consider it necessary to address the other issues raised by the parties in the appeal.

Orders