EMCL Pty Ltd v ESANDA Finance Corp Ltd [1999] FCA 978

FEDERAL COURT OF AUSTRALIA

EMCL Pty Ltd v ESANDA Finance Corp Ltd [1999] FCA 978 CONTRACT – construction of oral variation – whether on construction of the contract respondent entitled to commission – whether notice a condition precedent to right to sell or entitlement to commission – proper basis for calculation of entitlement PRACTICE AND PROCEDURE – leave required to appeal from discretionary ruling of trial judge – where court below refused to entertain arguments after judgment COSTS – apportionment Federal Court of Australia Act 1976 (Cth) s 51(A)(1)

Income Tax Assessment Act 1997 (Cth) Corporations Law Penalty Interest Rates Act 1983 (Vic) Associated Newspapers Ltd v Bancks (1951) 83 CLR 322, applied Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938)38 SR (NSW) 632, applied House v The King (1936) 55 CLR 499, applied Namol Pty Ltd v AW Baulderstone Pty Ltd [No 2] (1993) 47 FCR 388, followed Kettle Chip Co Pty Ltd v Apand Pty Ltd (1998) 155 ALR 134, followed Nagy v Masters Dairy Ltd (1996) 150 ALR 273, followed Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, applied EMCL PTY LTD AND FINPAC HOLDINGS LIMITED v ESANDA FINANCE CORPORATION LIMITED V 18 OF 1999 TAMBERLIN, SUNDBERG & DOWSETT JJ MELBOURNE 20 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 18 OF 1999

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: EMCL PTY LTD

(ACN 007 347 622)

First Appellant

FINPAC HOLDINGS LIMITED

Second Appellant

AND: ESANDA FINANCE CORPORATION LIMITED

(ACN 004 346 043)

Respondent

JUDGE: TAMBERLIN, SUNDBERG & DOWSETT JJ

DATE OF ORDER: 20 JULY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is allowed in part. 2. The application for leave to appeal from Heerey J's ruling on 17 November 1999, refusing to hear a new argument on clause 4(b) of the Master Discount Agreement dated 2 January 1999, is refused. 3. The application for leave to claim damages for breach of clause 4(c) is refused. 4. The cross-appeal is allowed. 5. Orders 1, 7 and 9 made at first instance on 18 December 1998 are set aside. 6. There be judgment for the appellant against the respondent for $27,587.04 together with interest at the rate of 9% for the period 18 December 1998 to the date hereof. 7. It is declared that the calculation of any amounts due pursuant to clause 4(b) of the Master Discount Agreement dated 2 January 1990, be referred to a single judge to determine whether the appropriate discount rate should be chosen having regard to the interest rates agreed by the experts and used in connection with the calculations that appear in the Appeal Book at pp 1663-4, or whether those calculations ought to have been made using discount rates based upon an interest rate or interests rates to be derived from the Agreement and from the leases entered into pursuant thereto. 8. The parties provide to members of the Court draft Short Minutes of Orders as to the costs of the trial and the appeal together with submissions thereon within fourteen (14) days having regard to these reasons for decision. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.