M & A Pharmachem Limited v Laderma Pty Ltd [2013] NSWDC 253

District Court New South Wales

Medium Neutral Citation: M & A Pharmachem Limited v Laderma Pty Ltd [2013] NSWDC 253 Hearing dates: 19 - 22 November 2012; 14 February, 1 April, 20 May 2013; submissions to 10 June 2013 Decision date: 25 October 2013 Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for €99,607.44. (2) Liberty to the parties to bring in Short Minutes of Order representing the mathematically agreed judgment sum and interest. (3) Cross-claim dismissed. (4) Defendants/cross-claimants to pay plaintiff/cross-defendant's costs of the proceedings. (5) Liberty to apply in 28 days in relation to costs. (6) Exhibits retained for 28 days. Catchwords: CONTRACT - plaintiff and first defendant enter into distribution agreement which is terminated - plaintiff seeks return of 50% advance made for two orders cancelled after the distribution agreement ended - first defendant claims the plaintiff consented to the assignment of the contract to the second defendant, into whose bank account the moneys were paid - same bank account used successively by first and then second defendants - whether the plaintiff's contract was with the first or second defendant at the time of termination - whether moneys paid under a mistake of fact - whether the plaintiff consented to the assignment - express novation - implied novation - conventional estoppel - total failure of consideration - cross-claim for loss of profits - whether an obligation to provide an inventory of unsold goods was an implied term - whether plaintiff's failure to provide a complete inventory of unsold goods was a breach and/or resulted in loss - loss of opportunity claim - causation issues - judgment for plaintiff and cross-claim dismissed PRACTICE AND PROCEDURE - applications to amend the pleadings by both parties - application by defendants to amend the defence and cross-claim during the hearing and during submissions refused. Legislation Cited: Civil Procedure Act 2005 (NSW), s 21 Conveyancing Act 1919 (NSW), s 12 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 Baltic Shipping Company v Dillon (1993) 176 CLR 344 Belligen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Fox v Percy (2003) 214 CLR 118 Grey v Australian Motorists & General Insurance Co Ltd [1976] 1 NSWLR 669 Moratic Pty Ltd v Gordon (2007) 13 BPR 24,713, [2007] NSWSC 5 Owners - Strata Plan No 44999 v Premier Holdings Corp Pty Ltd [2012] NSWSC 171 Pacific Brands Sport and Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 Sydney South Western Area Health Service v MD [2009] NSWCA 702 University of Western Australia v Gray (2009) FCR 346 Upper Hunter County District Council v Australian Chilling and Freezing Co Pty Ltd (1969) 118 CLR 429 Van Lynn Developments v Pelias Construction Co Ltd [1969] 1 QB 607 Vickery v Woods (1952) 85 CLR 336 at 345 W F Harrison & Co Ltd v Burke [1956] 1 WLR 419 Wright v TNT Management Pty Ltd (t/as Comet Overnight Transport) (1989) 15 NSWLR 679 Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 Lloyd's Rep 21 Texts Cited: - Category: Principal judgment Parties: Plaintiff/Cross-Defendant: M & A Pharmachem Limited First Defendant/Second Cross-Claimant: Laderma Pty Ltd (ACN 050 106 968) Second Defendant/First Cross-Claimant: Laderma Health International Pty Ltd (formerly Laderma Trading Pty Ltd) (ACN 134 067 066) Representation: Plaintiff: Mr G A Sirtes SC / Mr A Combe Defendants: Mr Miller SC / Mr D A Moujalli Plaintiff: Kemp Strang Defendants: Thomsons Lawyers File Number(s): 2011/146530 Publication restriction: None