EMCL Pty Ltd & Anor v Esanda Finance Corp Ltd [1998] FCA 1175

FEDERAL COURT OF AUSTRALIA

CONTRACTS – construction and interpretation – vehicle lease financing agreement between financier and lessor – financier appointed as lessor's agent for disposal of leased vehicles – clause requiring three days' notice of disposal – whether condition precedent to entitlement to disposal – whether term the breach of which sounds in damages – whether orally varied – whether varied by conduct – whether lessor estopped from relying on clause – clause requiring payment of excess of disposal amount where lease predetermined – basis of calculation of amount Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 applied Bremer Handelsgesellschaft mbH v Vanden Avenne-Izegem PVBA [1978] 2 Lloyd's LR 109 discussed United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 followed Antaios Cia. Naviera SA v Salen Rederierna AB [1985] AC 191 referred to

The Post Chaser [1981] 2 Lloyd's LR 695 distinguished

EMCL PTY LTD & ANOR v ESANDA FINANCE CORPORATION LIMITED NO VG 102 of 1998 JUDGE: HEEREY J DATE: 17 SEPTEMBER 1998 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 102 of 1998

BETWEEN: EMCL PTY LTD (ACN 007 347 622)

AND: FIRST Applicant

FINPAC HOLDINGS LTD

SECOND APPLICANT

esanda finance corporation limited

(acn 004 346 043)

RESPONDENT

BETWEEN: esanda finance corporation limited

AND: (acn 004 346 043)

CROSS-CLAIMANT

EMCL PTY LTD (ACN 007 347 622)

CROSS-RESPONDENT

JUDGE: heerey j

DATE OF ORDER: 17 SEPTEMBER 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondent within seven days file minutes of proposed orders and submissions as to costs. 2. The applicants file submissions in response within seven days thereafter. 3. Further hearing be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.