Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862

FEDERAL COURT OF AUSTRALIA

Seeley International Pty Ltd v Newtronics Pty Ltd [2001] FCA 1862

CONTRACT- Formation of Contract – exchange of correspondence, meetings and purchase orders with Terms and Conditions – assessment of actual terms of contracts –– where respondents did not object to printed terms or put forward their own terms over a prolonged period the applicant's terms held to be incorporated into the contract CONTRACT – whether breach of implied term that goods reasonably fit for purpose where respondent well aware of that purpose – whether implied warranty goods existed that were of merchantable quality – whether respondents breached implied term to use reasonable care and skill TORTS – Duty of Care – whether respondents breached duties to exercise reasonable care and skill in designing and manufacturing product – whether the applicant relied upon respondents' expertise DAMAGES – liability of both respondents in tort and contract – business sold by first respondent to second respondent without applicant's knowledge – second respondent continued to deal with applicant as before – both respondents in breach of express and implied terms of contract – held jointly and severally liable DAMAGES – applicant sought damages for loss of reputation – respondent led evidence of lack of reliability in product – evidence disclosed general lack of brand awareness in product area – unable to find applicant enjoyed a high reputation for reliability DAMAGES – past economic loss – calculation of direct losses as a result of product recall – losses due to negative publicity and required re-direction of monies away from research and development into marketing – assessment of impact on lost sales and market share taking into account other external factors and commercial contingencies