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CISG CASE PRESENTATION

Australia 16 December 2009 Supreme Court of New South Wales (Franklins Pty Ltd v Metcash Trading Ltd)
[Cite as: http://cisgw3.law.pace.edu/cases/091216a2.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20091216 (16 December 2009)

JURISDICTION: Australia

TRIBUNAL: Supreme Court of New South Wales

JUDGE(S): Allsop P Giles JA Campbell JA

CASE NUMBER/DOCKET NUMBER: 40253/07; 40348/07

CASE NAME: Franklins Pty Ltd v Metcash Trading Ltd

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Australia

BUYER'S COUNTRY: Australia

GOODS INVOLVED: Supermarket products


UNCITRAL case abstract

AUSTRALIA: Supreme Court of New South Wales, 16 December 2009
(Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/116],
CLOUT abstract no. 1136

Reproduced with permission of UNCITRAL

Abstract prepared by B. Zeller, national correspondent

Two parties from Australia entered into a written contract for the supply of products for supermarkets. At the time the agreement was entered, the buyer was a newcomer in the Australian retail grocery industry and the seller an established supplier.

Nevertheless, the buyer wished to establish and control its own relations with manufacturers and negotiate its own pricing terms. A dispute arose between the parties over the price the seller was charging for the products. The dispute centred around the definition of “Wholesale Price” in the Supply Agreement. The buyer alleged that all that was required was the deduction of certain specified allowances and discounts. Further, the buyer brought a cross-claim seeking rectification of the contract, and also alleging that the seller was stopped from asserting the construction it contended for.

The judge found in favour of the seller on the construction of the agreement, holding that it required the deduction of all allowances and discounts whatsoever; but held that the contract should be rectified to deduct only published allowances and discounts. In debating the interpretive approach in relation to later conduct and the construction of written contracts, the Court referred to the UNIDROIT principles of International Commercial Contracts (3rd Ed.), Articles 4.1-4.3, and article 8 CISG. The Court however was of the opinion that “to a significant degree the approach to the construction and interpretation of contracts in the UNIDROIT Principles and the CISG reflects civil law principles”.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 8 [similar effect as Art. 4(2) of UNDROIT principles and reflected civil law principles]

Classification of issues using UNCITRAL classification code numbers:

8 [Interpretation of Party's Statements or other Conduct]

Descriptors: Unavailable

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (English): Australian Legal Institute <http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/407.html?stem=0&synonyms=0&query=cisg>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated June 12, 2012
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