Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 2) [2010] NSWDC 83

New South Wales District Court

CITATION: Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 2) [2010] NSWDC 83

HEARING DATE(S): 12/3/10

JUDGMENT DATE: 19 May 2010

JURISDICTION: Civil

JUDGMENT OF: Bozic SC DCJ

CATCHWORDS: CONTRACT - construction of terms - whether goods returned are to be taken into account in determining commission - INTEREST - whether plaintiff is entitled to interest

CASES CITED: Falkner v Bourke (1990) 19 NSWLR 575 Perri v Flavell (No 2) NSW Court of Appeal, unreported, 20 September 1995

PARTIES: Smart Distribution Services v General Wholesale Pty Ltd (plaintiff) General Wholesale Pty Ltd (defendant)

FILE NUMBER(S): 4244/08

COUNSEL: Mr N Chen (plaintiff) Mr S Bell (defendant)

SOLICITORS: Hunt's Lawyers (plaintiff) Williamstown Lawyers (defendant)

JUDGMENT

Introduction 1 On 27 October 2009 I delivered a judgment in this matter dealing with the question of the date of termination of an agreement between the plaintiff and the defendant dated 6 August 2007 ("the Agreement") and the construction of the term "wholesale sale" in the Agreement: Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd [2009] NSWDC 274 ("the October judgment"). This judgment should be read in conjunction with the October judgment.

2 At paragraph 13 of the October judgment I stated: "13 At the hearing two questions were isolated for determination by the Court. It was said that the determination of these two questions should enable the parties to work out what amount, if any, is owing to the plaintiff by way of commission. This will obviate the need for the Court to determine the quantum of the plaintiff's claim." 3 Unfortunately the expectation that the October judgment would obviate the need for further court proceedings was overly optimistic.