Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852

FEDERAL COURT OF AUSTRALIA

Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852

Citation: Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852

Parties: CORTEM SPA v CONTROLMATIC PTY LTD (ACN 124 091 032) and GIUSEPPE VENUTI

File number: VID 414 of 2008

Judge: JESSUP J

Date of judgment: 13 August 2010

Catchwords: TRADE PRACTICES – Australian distributor of imported goods applying principal's name to locally-manufactured goods – Distributor selling locally manufactured goods in place of goods manufactured by principal – Whether amounted to misleading or deceptive conduct or to false claim of association – Distributor a one-man company – Whether director/shareholder liable as accessory.

TORTS – Passing off – Company passing off own goods as those of another – Liability of director of company – Availability of damages as against director.

RESTITUTION – Imported goods requiring certification under Australian legislation – Australian distributor performing work and incurring expense in connection with legislation – Whether entitled to remuneration/reimbursement – Existence of foreign contract contemplating such work but making no provision for payment – Whether restitutionary claim lies – Whether sufficient proof of work done and expenses incurred.

SALE OF GOODS – Warranty that goods would conform to regulations – Whether goods failed to conform – Whether purchaser notified supplier – Supply of goods from overseas – Applicability of Vienna Convention.

Legislation: Sale of Goods (Vienna Convention) Act 1986 (NSW)Sched 1 Trade Practices Act 1974 (Cth) ss 6, 52, 53, 75B, 80, 82