Colly Cotton Marketing Pty Ltd & Anor v Simmons & Anor [2006] NSWCA 134

New South Wales Court of Appeal

CITATION: Colly Cotton Marketing Pty Ltd & Anor v Simmons & Anor [2006] NSWCA 134

HEARING DATE(S): 4 April 2006

JUDGMENT DATE: 7 June 2006

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 32; McColl JA at 218

DECISION: See [216]: parties to bring in short minutes.

CATCHWORDS: Cotton marketing - using forward exchange contracts - umbrella agreement - foreign currency transactions and cotton sales contracts - who were parties to umbrella agreement - who were parties to foreign currency transactions - whether currency positions could be rolled over at grower's discretion - whether grower's entry into umbrella agreement induced by misleading or deceptive conduct - whether losses suffered by that conduct extended to losses on later foreign currency transactions - and to losses on cotton sales contracts - at what prices would cotton otherwise have been sold - whether merchant entitled to close out positions unilaterally - grower gave crop lien to third party - whether merchant agreed in writing to crop lien - consideration of what is misleading or deceptive conduct and causation in claim under Trade Practices Act - result turns on particular facts and documents. D

Chappel v Hart (1998) 195 CLR 232; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Fox v Percy (2003) 214 CLR 118; Gould v Vaggelas (1985) 157 CLR 215; Henville v Walker (2001) 206 CLR 459; CASES CITED: Pacific Carriers Ltd v BNP Paribas (2004) 208 ALR 213; Rosenberg v Percival (2001) 205 CLR 434; RT & YE Falls Investments Pty Ltd v The State of New South Wales [2001] NSWSC 1027; State of New South Wales v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1; Smith v Maloney (2005) 92 SASR 498; Smith v Noss [2006] NSWCA 37.