Thompson & Morgan (UK) Ltd & Anor v Erica Vale Australia Pty Ltd [1995] FCA 245

CATCHWORDS

CONTRACT - respondent acts as distributor of appellant's seeds - contract not reduced to writing - dispute as to terms - whether contract terminable on three years notice - whether appellant knew and approved of the "outsourcing" of seeds - whether respondent's purchase of seeds from a competitor amounted to breach of express or implied term of the contract - whether repudiation JURISDICTION - consideration of federal jurisdiction in appeal to Federal Court from state Supreme Court involving infringement of copyright, damages for breach of contract, passing-off and contravention of Trade Practices Act 1974 (Cath) DAMAGES - whether expense incurred in mitigating respondent's loss - whether credits given by respondent for seeds returned to it - whether loss of profit on sales - interest COPYRIGHT - whether appellant had acquired a licence from respondent - whether licence incidental to or co-terminous with the distributorship arrangements between the parties THOMPSON & MORGAN (UNITED KINGDOM) LIMITED and DEFENDER LIMITED v ERICA VALE AUSTRALIA PTY LIMITED NG 698 of 1994 NG 899 of 1994 LOCKHART, GUMMOW and HILL JJ. 19 APRIL 1995 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) Nos. NG698 GENERAL DIVISION ) and NG899 of 1994 On appeal from the Supreme Court of New South Wales. BETWEEN: THOMPSON & MORGAN (UNITED KINGDOM) LIMITED First Appellant DEFENDER LIMITED Second Appellant AND: ERICA VALE AUSTRALIA PTY LIMITED Respondent BEFORE: LOCKHART, GUMMOW, HILL JJ. PLACE: SYDNEY. DATE: 19 APRIL 1995.

MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal in what was previously proceeding 5302 of 1988 in the Supreme Court of New South Wales be allowed. The appeal in what was previously proceeding 4209 of 1989 in the Supreme Court of New South Wales be dismissed. 2. Orders 4, 11 and 16 made by the Supreme Court of New South Wales on 23 September 1994 be set aside. 3. Upon the respondent by its counsel undertaking to the Court that it shall not part with its assets or incur liabilities other than in the ordinary course of business, the stay of execution granted by order 14 of the Supreme Court of New South Wales made 23 September 1994 be extended to and be discharged on 10 May 1995. 4. Upon the discharge of the stay in order 3, the judgment in favour of the respondent against the appellants in Order 8 made by the Supreme Court of New South Wales on 23 September 1994 may be set-off against the judgment of the Supreme Court of 14 June 1991 in favour of the first appellant and against the respondent. 5. The respondent pay one-half of the costs of the appellants of the proceeding at first instance; and the respondent pay the costs of the appellants of the appeal; but otherwise there be no order as to the costs of the appeal.