Device Technologies Australia Pty Ltd v Applied Medical International Inc and Anor [2001] NSWSC 1110

New South Wales Supreme Court

CITATION : Device Technologies Australia Pty Ltd v Applied Medical International Inc and Anor [2001] NSWSC 1110 CURRENT JURISDICTION: Equity Commercial FILE NUMBER(S) : SC 50049/00 HEARING DATE(S) : 29 to 31 October, 1, 5 & 6 November, 2001 JUDGMENT DATE : 6 December 2001

Device Technologies Australia Pty Limited [Plaintiff] PARTIES : Applied Medical International Inc [First Defendant] Gembro Pty Limited [Second Defendant] JUDGMENT OF : Palmer J

COUNSEL : P.M. Wood [Plaintiff] I.M. Jackman [Defendants] SOLICITORS : Corrs Chambers Westgarth [Plaintiff] Mallesons Stephen Jaques [Defendants] CATCHWORDS : CONTRACT - INFORMAL CONTRACT - COURSE OF CONDUCT - EXCLUSIVE DISTRIBUTION - Whether an exclusive distribution contract can arise by course of dealings when supplier has proffered an exclusive distribution on terms contained in a formal contract and the distributor rejects the terms - whether mere fact that parties' continue thereafter to deal with one another sufficient to give rise to exclusive distribution contract - whether Court should be ready to imply a contract from conduct when there is evidence that both parties actually believe that there is no contract - held: no contract to be implied from conduct - CONTRACT - ORAL CONTRACT - Whether negotiations resulted in immediately binding oral contract when terms yet to be agreed and execution of formal contract contemplated - inherent probabilities in substantial commercial transactions - held: no binding contract. LEGISLATION CITED : Trade Practices Act, 1974, s.52, s.51A - Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED : - R.T. & Y.E. Falls Investments Pty Ltd v The State of New South Wales and Ors [2001] NSWSC 1027 - Multi-core Aerators Ltd v Multi-core Aerators Pty Ltd (1997) 40 IPR 462 - F&G Sykes (Wessex) Ltd v Fine Fare Ltd (1967) Ll.L.R. 53 DECISION : Plaintiff's claims dismissed with costs. Judgment for the Cross Claimant on the Amended Cross Claim.