Philips Electronics Australia Limited v Insight Oceania Pty Limited [2009] NSWCA 124

New South Wales Court of Appeal

CITATION: Philips Electronics Australia Limited v Insight Oceania Pty Limited [2009] NSWCA 124

HEARING DATE(S): 5 & 6 March 2009

JUDGMENT DATE: 28 May 2009

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Macfarlan JA at 61

(1) Leave to appeal granted. DECISION: (2) Appeal dismissed with costs. (3) Matter remitted to the Commercial List of the Equity Division of the Supreme Court for determination of any outstanding issues.

CATCHWORDS: CONTRACTS – general contractual principles – construction and interpretation of contracts – whether contract was validly terminated when right of termination was conditional on the appellant failing to meet a sales goal – proper construction of the sales goal – whether an order could count towards the sales goal when the distributor did not have a pre-existing customer order – commercially sensible construction of the contract – CONTRACTS – general contractual principles – incorporation of terms – whether a definition contained in earlier agreements but not contained in amending document formed part of the contract – proper approach to determining whether a term forms part of a contract – subjective intention of the parties not relevant – CONTRACTS – general contractual principles – construction and interpretation of contracts – meaning of "best efforts" and "best endeavours" clauses – WORDS AND PHRASES – "best efforts" – "best endeavours"

CATEGORY: Principal judgment

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 CASES CITED: Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83