SUPALUX PAINT CO PTY LTD & ANOR -v- VYSE & ORS [1999] WASC 78

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 78
Case No:	CIV:1658/1997	Heard:	26, 27, 31 MAY 1999 & 4, 7-10 JUNE 1999
Coram:	TEMPLEMAN J	Delivered:	24/06/99
No of pages:	37	Judgment Part:	1 of 1
Result:	Plaintiffs' Application dismissed Judgment for defendant on counterclaim
PDF Version

Parties:	SUPALUX PAINT CO PTY LTD JOHN CHELMSFORD VYSE DAVID ALBERT VYSE FANCREST PTY LTD SLADE CORPORATION PTY LTD
Catchwords:	Contracts Construction and interpretation Whether void for uncertainty Breach of agreement Variation of agreement Whether unreasonable restraint of trade Whether breach of obligation of confidentiality Section 10 Fair Trading Act 1987 Whether misleading or deceptive conduct "in trade and commerce" Whether implied term of non-solicitation Estoppel
Legislation:	Fair Trading Act 1987, s 10 Property Law Act 1969, s 80
Case References:	Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 Castlemaine Tooheys Ltd v Carlton United Breweries Ltd (1987) 10 NSWLR 468 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Franich v Swannell (1993) 10 WAR 459 Herbert Morris Ltd v Saxelby [1916] AC 688 Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 Trego v Hunt [1896] AC 7 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967) 118 CLR 429 Akron Securities v Iliffe (1997) 41 NSWLR 353 Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 ANZ Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 Astra Tanks Pty Ltd v Running 91982] 2 NSWLR 840 Brown v Gould [1972] Ch 53 Connors Bros Ltd v Connors [1940] 4 All ER 179 Curl Brothers Ltd v Webster [1904] 1 Ch 685 Davies v Davies (1887) 36 Ch 359 Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 Drake Personnel Ltd v Beddison [1979] VR 13 Esso Petroleum Co Limited v Harper's Garage (Stourport) Limited [1968] AC 269 G D Searle & Co Limited v Celltech Limited (1982) FSR 92 Godecke v Kirwan (1973) 129 CLR 629 Hawker de Haveland Ltd v Fernandes & Anor, unreported; SCt of WA (Commissioner Gilmour); Library No 960055; 9 February 1996 Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 Lidner v Murdock's Garage (1950) 83 CLR 628 Lloyd'sShips Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 Marks v GIO Australia Holdings Ltd (1998) 73 ALJR 12 Meredith v Anthony [1980] 2 NSWLR 784 O'Loughlin v O'Loughlin [1958] VR 649 Peters Ice Cream (Vic) Ltd v Todd [1961] VR 485 Petrofina (Gt Britain) Limited v Martin [1966] 1 Ch 146 Pioneer Concrete Services Ltd v Galli [1985] VR 675 Thomas Marshall Ltd v Guinle [1979] Ch 227 Waltons Stores (Interstate)

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: [1999] WASC 78
Decision Date

CaseChat Overview and Summary

The dispute between Supalux Paint Co Pty Ltd and David Albert Vyse involved a share sale agreement from 1994 and its subsequent variation by a letter agreement in 1996. Supalux alleged that David breached the terms of the agreements and engaged in misleading conduct. The court found that the letter agreement was binding and enforceable, releasing David from all restraints imposed by the original share sale agreement. The court also dismissed the allegations of misleading conduct and rejected the claim for an implied term of non-solicitation. It found no misuse of confidential information by David. Consequently, David was awarded the outstanding balance of the purchase price plus interest, totalling $229,152. The court further ruled that John Vyse was estopped from claiming that the letter agreement did not release David from the original restraints, as David had relied on the agreement to establish a competing business.

Orders