TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH [2015] NSWCA 343 Hearing dates: 25, 26, 27 February 2015;Written submissions 6, 25 March 2015 Decision date: 06 November 2015 Before: Macfarlan JA at [1]; Meagher JA at [5]; Bergin CJ in Eq at [154] Decision: 1. Appeals 2014/139124 and 2014/139128 dismissed with costs. Catchwords: CONTRACT – construction – contract for purchase of software – where software required authenticity check every three months to continue operating – whether breach of term that licence to use would be of unlimited duration – whether breach of warranty that software would be fit for purpose

CONTRACT – implied terms – where individual contracts of supply in commercial relationship involving purchase, re-sale, installation and maintenance by distributor – whether implied term in supply contracts that original supplier would provide parts and support services to distributor as required for continued operation of systems for their lifetime, irrespective of whether distributorship arrangement terminated, and at prices applicable to ongoing resellers or distributors – whether conduct and statements of parties supported implication – whether implication of term necessary for reasonably effective operation of supply contracts with distributor

ESTOPPEL – equitable estoppel – conventional estoppel – whether assumption adopted between parties as to ongoing obligation of original supplier to provide to distributor and reseller parts and support necessary to ensure effective operation of systems for their lifetime – whether conduct, including statements between parties, points plainly to adoption of assumption said to constitute conventional basis of supply relationship