Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Factory 5 Pty Ltd v State of Victoria [2010] FCA 1229
Citation: Factory 5 Pty Ltd v State of Victoria [2010] FCA 1229
Parties: FACTORY 5 PTY LTD (IN LIQUIDATION) (ACN 112 313 238) v STATE OF VICTORIA , MADELINE T MOULIS PTY LTD (TRADING AS MTM RETAIL MARKETING) (ACN 069 069 889) and MADELAINE COHEN
File number: VID 1222 of 2006
Judge: BROMBERG J
Date of judgment: 11 November 2010
Catchwords: CONTRACT LAW – Formation of Contract – Repudiation – Acceptance of Repudiation – Termination – Whether Heads of Agreement was intended to be binding – Whether prior common intent for a binding Heads of Agreement was altered or abandoned – Whether lack of contractual intent was demonstrated by important contractual terms left outstanding or by subsequent conduct – Whether 'post-agreement' admissions are admissible as to contractual intent – Agreement made – Whether agreement made was a second or fourth class Masters v Cameron agreement – Fourth class agreement made – Discretion not wrongly exercised –Agreement not breached – Repudiation by the denial of the contract – Capacity of non-repudiatory party to claim loss and damage – By persisting with erroneous interpretation of contract and other conduct, non-repudiatory party evinced a definitive resolve against doing in the future what the contract required – Lack of readiness or willingness to perform the contract – Failure to communicate acceptance of repudiation – Abandonment of contract
EVIDENCE – Whether 'post-agreement' admissions are admissible as to contractual intent
Legislation: Trade Practices Act 1974 (Cth) s 47
Cases cited: ABC v XIVTH Commonwealth Games (1988) 18 NSWLR 540 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board (1989) 1 QdR 499 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Brunninghausen v Glavanics (1999) 46 NSWLR 538 Cullen v ZLB Behring LLC [2006] NSWSC 265 Dainford Ltd v Smith (1985) 155 CLR 342 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Foran v Wight (1989) 168 CLR 385 Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Graham Evans Pty Ltd v Stencraft Pty Ltd [1999] FCA 1670 Green v Sommerville (1979) 141 CLR 594 Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 Holland v Wiltshire (1954) 90 CLR 409 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Lennon v Scarlett & Co (1921) 29 CLR 499 Masters v Cameron (1954) 91 CLR 353 Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439 Pacific Brands v Underworks (2006) 149 FCR 395 Randwick City Council v Nancor Trading Co Pty Ltd [2002] NSWCA 108 Rawson v Hobbs (1961) 107 CLR 466 Sagacious Procurement Pty Ltd v Symbion Health Limited [2008] NSWCA 149 Summers v Commonwealth (1919) 26 CLR 180 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Tote v Garrott (2008) 17 Tas R 320 Vaswani v Italian Motors Ltd [1996] 1 WLR 270 Woodar Limited v Wimpey Limited [1980] 1 WLR 277
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