Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710

New South Wales Supreme Court

CITATION : Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710

HEARING DATE(S) : 26 & 27 March 2008; 10, 11, 12, 16, 17, 18, 19 & 20 June 2008

JUDGMENT DATE : 23 July 2008

JURISDICTION : Equity - Commercial List

JUDGMENT OF : Bergin J

DECISION : Defendant not entitled to rely upon notices of termination

CATCHWORDS : [CONTRACT] - Exclusive Distributorship Agreement for Plaintiff to distribute Defendant's nuclear medical equipment in Australia and New Zealand - automatic renewal of Agreement for period of 12 months to 31 December 2008 unless parties failed to reach written agreement in respect of Plaintiff's sales goal for 2008 - whether parties reached agreement in writing in respect of Plaintiff's sales goal - whether Plaintiff entitled to place order on Defendant for certain Products - whether Plaintiff was required to have a 'binding written commitment" from customer prior to placing order on Defendant - whether Plaintiff achieved its sales goal for 2007 - [IMPLIED TERMS] - whether implied term to co-operate and/or implied term to act in good faith in discussions in relation to Plaintiff's 2008 sales goal - whether breach of Agreement - [TERMINATION] - whether Defendant entitled to give notice to Plaintiff terminating agreement on basis of the parties' failure to reach agreement in writing as to Plaintiff's sales goal for 2008 - whether Defendant entitled to terminate Agreement on basis that Plaintiff fail to achieve its sales goal for 2007 - [WORDS & PHRASES] - "discussions", "negotiate", "binding written commitment"

CATEGORY : Principal judgment

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Australian Hotel Association (NSW) v TAB Limited [2006] NSWSC 293 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Butt v M'Donald (1896) 7 QLJ 68 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 CASES CITED : Empress Towers Ltd v Bank of Nova Scotia (1991) 50 B.C.L.R. 126 Hart v MacDonald (1910) 10 CLR 417 Jalun Pool Supplies Pty Ltd v Onga Pty Ltd [1999] SASC 20 Mackay v Dick (1881) 6 App. Cas. 251 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2005) Aust Contract Reports 90-213 Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 230 ALR 56 Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 117 ALR 393