Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) [2009] FCA 522

FEDERAL COURT OF AUSTRALIA

Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) [2009] FCA 522

CONTRACT — Contract for provision of an olive oil processing line — Purported termination for breach — Alleged failure to comply with contract specifications — No failure outside scope of repair or replacement clause — Held termination not validly invoked. CONTRACT — Acceptance by electronic mail — Effect of electronic contract — Formation of an electronic contract in relational contract settings — Consideration of postal rule and instantaneous communication form rule — Held contract made at place where acceptance was received. CONTRACT — Application of international law to — Contract between Australian and German companies — United Nations Convention on Contracts for the International Sale of Goods — Incorporation of an international convention into Victorian law — Sale of Goods (Vienna Convention) Act 1987 (VIC) — Express contractual exclusion of the application of the international convention to the contract — Held exclusion permissible. TRADE PRACTICES — Misleading or deceptive conduct — Warranties in agreement — Representations as to future matters — Implied representations that respondent had an intention to carry out contractual promises — Whether if false may constitute misleading or deceptive conduct per se — Held respondent had a genuine intention to fulfil its contractual obligations — Held respondent had reasonable grounds for making representations — Held no misleading or deceptive conduct — Trade Practices Act 1974 (CTH) ss 51A, 52, 87 CONTRACT — Particular terms — Withdrawal clauses — Provision for purchaser to seek reduction in price or withdrawal from contract each after allowance of a reasonable period of grace — Separate obligation and entitlement of vendor to repair or replace within a reasonable period of time goods not compliant with contractual specifications — Construction and reconciliation of such terms — Held period which constituted reasonable period of grace must necessarily be beyond reasonable time for effecting repair or replacement.