Lobux Pty Ltd v Willshaun Pty Ltd [2022] FCA 204

Federal Court of Australia

Lobux Pty Ltd v Willshaun Pty Ltd [2022] FCA 204 File number(s): QUD 64 of 2020

Judgment of: DOWNES J

Date of judgment: 11 March 2022

Catchwords: CONTRACTS – where customer removed custom-made machine before its construction was completed – where customer said it would return the machine but failed to do so – whether removal of machine was a valid termination of the contract – where customer had requested changes to design of machine which had delayed its manufacture – where customer then sought to rely on delay and defects in machine as basis for alleging repudiation – where customer prevented performance of contract by other party – whether entitled to allege breach of agreement in those circumstances – whether entitled to damages for loss of opportunity where lay opinions relied upon were based on inadmissible hearsay CONSUMER LAW – where customer alleged numerous clauses in agreement were unfair within meaning of s 24 Australian Consumer Law and therefore void – whether retention of title clause was an unfair term – whether term creating a security interest in the goods was an unfair term – whether term creating charge over all assets including future assets was an unfair term – where goods were custom-made machine which required investment of time and money by manufacturer – whether terms reasonably necessary to protect legitimate interests of manufacturer of custom-made machine EVIDENCE – expert briefed by party prior to commencement of litigation – independence of expert not established – expert not informed of critical facts relating to machine being inspected – assumptions briefed to expert not established by the evidence – expert inspected machine once in April 2019 – opinions of expert rejected as having no weight