Dukemaster Pty Ltd v Bluehive Pty Ltd [2001] FCA 180

FEDERAL COURT OF AUSTRALIA

Dukemaster Pty Ltd v Bluehive Pty Ltd [2001] FCA 180

CONTRACT ‑ Whether binding agreement reached ‑ Note of understanding signed by parties followed by sequence of correspondence reopening various matters ‑ Formal agreement contemplated by parties ‑ Regard to be had to all correspondence and all facts when determining whether agreement binding. PRACTICE AND PROCEDURE ‑ Conduct of case at trial ‑ Concession by respondent to application ‑ Unsuccessful respondent appeals ‑ Seeks leave to withdraw concession on appeal. Trade Practices Act 1974, ss 51A, 52 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 applied Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 applied DUKEMASTER PTY LTD v BLUEHIVE PTY LTD and GAN HOLDINGS PTY LTD VG 754 of 2000 SUNDBERG, EMMETT and CONTI JJ 5 MARCH 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 754 OF 2000

BETWEEN: DUKEMASTER PTY LTD (ACN 050 275 226)

APPELLANT

AND: BLUEHIVE PTY LTD (ACN 073 073 300)

FIRST RESPONDENT

GAN HOLDINGS PTY LTD (ACN 080 258 635)

SECOND RESPONDENT

JUDGES: SUNDBERG, EMMETT and CONTI JJ

DATE OF ORDER: 5 MARCH 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal against the judgment for the second respondent be allowed.

2. The judgment for the second respondent be set aside and in lieu thereof it be ordered that so far as it concerns the second respondent the application be dismissed.

3. The matter the subject of the appeal against the judgment for the first respondent be remitted to the primary judge for the making of findings on the issues referred to in paragraph 21 of the Court's reasons.

4. Pending the making of the findings referred to in paragraph 3 hereof the appeal be stood over.