Nationwide Produce (Holdings) Pty Ltd (In Liquidation) v Linknarf Limited (In Liquidation) [2005] FCAFC 129

FEDERAL COURT OF AUSTRALIA

Nationwide Produce (Holdings) Pty Ltd (In Liquidation) v Linknarf Limited (In Liquidation) [2005] FCAFC 129 CONTRACT – respondent purchased fruit and vegetables from the appellant and its predecessor business on a regular basis from 1994 to the end of 1998 – repeated refusals by respondent to enter into formal supply arrangement – offer of weekly contract with a right to terminate if the produce did not meet respondent's quality standards was made to the appellant on 6 October 1998 – offer accepted by appellant – appellant subsequently complained that the contact would put him out of business and requested an ongoing contract – produce supplied by the appellant was rejected by respondent – respondent terminated contract on 31 December 1998 – whether a supply contract existed between the parties prior to October 1998 – whether the course of dealing between the parties indicated a mutual intention to enter into a legally binding arrangement – whether the contract conferred a right of first refusal on appellant to supply respondent with fruit and vegetables of certain classes – whether sufficient notice of termination of the contract was given by respondent – whether October 1998 contract should be set aside on the grounds of economic duress and unconscionable conduct by respondent TRADE PRACTICES – misleading and deceptive conduct Trade Practices Act 1974 (Cth) ss 51AA, 51AC, 52 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 applied Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 applied Brambles Nationwide Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 applied Vroom DV v Foster's Brewing Group Ltd [1994] 2 VR 32 cited Mackay v Wilson (1947) 47 SR(NSW) 315 referred to Woodroffe v Box (1954) 92 CLR 245 referred to White Property Developments Ltd v Richmond Growth Pty Ltd (unreported, Federal Court of Australia, Madgwick J, 28 January 1998) referred to Crawford Fitting Co v Sydney Valve and Fittings Pty Limited (1988) 14 NSWLR 438 applied Australian Blue Metal Limited v Hughes [1963] AC 74 referred to US Second Restatement on Contracts para. 22(2)