Mukherjee v Equipmed Pty Limited [2003] NSWCA 248

New South Wales Court of Appeal

CITATION : Mukherjee v Equipmed Pty Limited [2003] NSWCA 248 HEARING DATE(S) : 26 August 2003 JUDGMENT DATE : 26 August 2003

JUDGMENT OF : Meagher JA at 23; Santow JA at 24; Tobias JA at 1 DECISION : 1. Appeal allowed; 2. Set aside the judgment of Judge Balla; 3. Order that judgment be entered for the respondent in the sum of $108,464.09; 4. Order that the appellant pay the respondent's costs of the proceedings before Judge Balla but that there be no order as to the costs of the appeal

CATCHWORDS : CONTRACT - Breach due to refusal to accepts goods subject to the contract - Whether trial judge correctly assessed damages for loss of profit - ND LEGISLATION CITED : s52 - Trade Practices Act 1974 s52 - Sales of Goods Act 1923 PARTIES : Dr G Mukherjee & 1 Ors Equipmed Pty Limited FILE NUMBER(S) : CA 40027/03 COUNSEL : A: Mr McInnes QC / M Campbell R: G White SOLICITORS : A: Dominic Stamfords, Sydney R: The Law Firm of Solari's, Cronulla

LOWER COURT District Court JURISDICTION : LOWER COURT DC 9561/03 FILE NUMBER(S) : LOWER COURT Balla J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40027/03

MEAGHER JA SANTOW JA TOBIAS JA

26 AUGUST 2003 DR G MUKHERJEE & 1 ORS v EQUIPMED PTY LIMITED Judgment 1 TOBIAS JA: In this matter the respondent, Equipmed Pty Limited, brought an action for damages against the appellants, Doctors Mukherjee and Bhatia, in the District Court of New South Wales for breach of two contracts entered into by the parties, whereby the respondent agreed to sell and the appellants agreed to purchase two pieces of medical equipment, being a Polamar multi laser machine and a Moulmax machine, for a total price of $224,950. 2 The main issue in the proceedings before her Honour Judge Balla concerned a defence raised by the appellants, in which it was asserted that the contract was subject to certain conditions precedent which had not been fulfilled and which therefore entitled them to refuse to accept the goods and/or that the appellants were entitled to rescind the contract as a consequence of conduct on the part of the respondent which was misleading or likely to mislead in contravention of s 52 of the Trade Practices Act 1974. 3 It would appear that the main thrust of the proceedings were concerned with these defences and that the majority of the evidence and the time spent at the hearing related to the appellant seeking to prove those defences and the respondent seeking to resist them. 4 In a judgment delivered by her Honour on 19 December 2002 she found in favour of the respondent with respect to the defences to which I have referred. Accordingly, her Honour determined that the appellants had wrongly failed to accept the goods the subject of the contract as a consequence whereof they were in breach of the contracts and were liable in damages to the respondent. 5 At the hearing the respondent claimed damages pursuant to a provision of the contracts which provided as follows: