Gallienne Pty Ltd v. S.W. Hart & Company Pty Ltd & Anor [1987] FCA 321

( ' (

NOT INTENDED FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA

DISTRICT REGISTRY No. WAG 33 of 1986

BETWEEN: GALLIENNE PTY LTD as Trustee for the J.D. Milne Family Trust Applicant and S.W. HART & CO. PTY LTD First Respondent

and

ANTHONY MARWICK

Second Respondent

CORAM: FRENCH J. 19 June 1987

REASONS FOR JUDGMENT Gallienne Pty Ltd ("Gallienne") is a dealer in Solahart

products manufactured by S.W. Hart & Co. Pty Ltd. ("Hart").

The pxoducts comprise items of equipment that utilise solar energy and include hot water systems, pool heating systems

and space heating systems.

Gallienne distributes them in the Rockingham area in a territory defined by a Dealership Agreement between itself and

Hart.

- ace te - ee i en -

come ee

ope rr me arr see ee oem cere ce cre ns tere

mote ee

- eee

ene

ete trate ee ee

"

A nego ete ee

~f

poe

——

w

o

2.

The Dealership Agreement arose pursuant to an assignment to and undertaking by Gallienne of rights and obligations under an

agreement between Hart and the previous distributor in the area.

Gallienne contends, and 1t 1s admitted, that under the terms of the agreement it was appointed for 3 years and 1 month as

exclusive agent for Hart in the Rockingham territory.

Hart, it alleges, has breached the agreement by competing with Gallienne in the supply of Solahart equipment in that territory. It did this, at least in part, pursuant to a policy under which 1t supplied Solahaxrt products direct to builders and other "trade" purchasers. The policy 1s said to have

pre-dated the assignment of the Dealership Agreement and to be

inconsistent with oral pre-contractual representations of exclusive access to all purchasers of Solahart products in the

territory. Gallienne has commenced proceedings in this Court in which it seeks damages and declaratory and other relief against