Baan Australia v George Weston [1999] NSWSC 550

New South Wales Supreme Court CITATION : Baan Australia v George Weston [1999] NSWSC 550 CURRENT JURISDICTION : Commercial FILE NUMBER(S) : 50217/97 HEARING DATE(S) : 07/06/99 JUDGMENT DATE : 10 June 1999

PARTIES : Baan Australia Pty Limited - Plaintiff George Weston Foods Limited - Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr A.J.L. Bannon SC/Mr A.J. Payne - Plaintiff Mr S.G. Finch SC/Mr F. Kunc - Defendant SOLICITORS : Clayton Utz - Plaintiffs Gilbert & Tobin - Defendant CATCHWORDS : Separate Questions: General undesirability of separate questions re-stated. DECISION : The course of the litigation so far pursued should not be changed at this stage.

10 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

THURSDAY, 10 JUNE 1999

50217/1997 - BAAN AUSTRALIA PTY LIMITED v GEORGE WESTON FOODS LIMITED

JUDGMENT

HIS HONOUR:

Introduction 1 These proceedings were commenced by a Summons filed as long ago as 1 December 1997, whereby the plaintiff, for which Mr A.J.L. Bannon of Senior Counsel and Mr A.J. Payne of Counsel apeared, sought declarations that the defendant, for which Mr S.G. Finch of Senior Counsel and Mr F. Kunc of Counsel appeared, had wrongly repudiated the Software Licence and Support Agreement and the Professional Services Agreement entered into between the parties and dated 31 December 1996; damages and ancillary relief. The plaintiff has claimed substantial damages in consequence of the alleged wrongful termination of these agreements. 2 The defendant's Defence makes a number of admissions, including admissions that amounts otherwise prima facie payable to the plaintiff have not been paid; denies that it wrongfully repudiated the agreements; and relies on the matters set forth in its Cross-Claim, which was filed on 13 March 1998 and to which a Defence was filed on 7 May 1998. 3 The Cross-Claim sought declarations that the plaintiff had breached the agreements upon which the plaintiff relies, and that the defendant was entitled to and did effectively terminate them on or about 12 November 1997, and that in consequence of that termination the defendant is relieved from any obligations or liabilities to the plaintiff under those agreements. 4 In paragraph 5 a declaration was sought that the plaintiff and its holding company, the second cross-defendant, engaged in misleading or deceptive conduct in breach of s.52 of the Trade Practices Act 1974 and, in paragraph 6, that it made false representations in breach of s.53 of that Act. Orders were sought under s.87 of that Act, and for damages and ancillary relief. 5 The Cross-Claim alleged breaches of a number of terms of the agreement, and repudiatory conduct and, commencing at paragraph 69, relied upon a number of representations allegedly made by the plaintiff, which it is asserted were false and/or misleading or deceptive, or likely to mislead or deceive in various ways. Further representations were pleaded.