Smash Enterprises Pty Ltd v Euromark Ltd

Smash Enterprises Pty Ltd sued Euromark Ltd, asserting breaches of an exclusive distributorship agreement and seeking damages for loss of profit on the sale of stock and loss of bargain. The dispute was heard in the Supreme Court of Queensland. The legal issues revolved around the nature of the breaches of the distributorship agreement, whether there had been a repudiation that was accepted, and the measure of damages for loss of profit and loss of bargain. Additionally, Smash Enterprises claimed that Euromark Ltd engaged in unconscionable conduct under the Australian Consumer Law.

The court determined that Euromark Ltd had repudiated the agreement and that Smash Enterprises had accepted this repudiation, thereby terminating the contract. Smash Enterprises was found to be willing and able to perform the contract but for the breaches and repudiatory conduct by Euromark Ltd. Consequently, damages were awarded for loss of bargain, but not for loss of profit on the sale of stock. The court found that the loss of profit on the sale of stock was not directly attributable to the unconscionable conduct, and thus, no damages were awarded for that claim. Leave to appeal was granted but dismissed, and leave to cross-appeal was granted, resulting in the cross-appeal being allowed in part.

The court also examined claims of unconscionable conduct under the Australian Consumer Law. It was established that the conduct involved dishonesty, bad faith, and disregard for contractual terms, which breached section 21(1) of the Australian Consumer Law. The court found that the individuals involved in the conduct were liable for the unconscionable behaviour. The appeal was dismissed, and the findings of unconscionable conduct were upheld.