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CISG CASE PRESENTATION

Australia 6 August 2010 Supreme Court of Victoria (Delphic Wholesalers (Aust) Pty Ltd v. Agrilex Co. Limited)
[Cite as: http://cisgw3.law.pace.edu/cases/100806a2.html]

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

Case Table of Contents


Case identification

DATE OF DECISION: 20100806 (6 August 2010)

JURISDICTION: Australia

TRIBUNAL: Supreme Court of Victoria

JUDGE(S): Ferguson J

CASE NUMBER/DOCKET NUMBER: [2010] VSC 328

CASE NAME: Delphic Wholesalers (Aust) Pty Ltd v. Agrilex Co Limited

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Bulgaria

BUYER'S COUNTRY: Australia

GOODS INVOLVED: Cheese


UNCITRAL case abstract

AUSTRALIA: Supreme Court of Victoria, 6 August 2010
(Delphic Wholesalers (Aust) Pty Ltd v Agrilex Co Limited [2010] VSC 328)

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/116],
CLOUT abstract no. 1134

Reproduced with permission of UNCITRAL

Abstract prepared by B. Zeller, national correspondent

An Australian buyer entered into a contract with a Bulgarian seller for the purchase of cheese. After the initial shipments, the buyer complained that the goods were not of the quality or description that the seller had agreed to supply, it thus withheld payments for the last shipments. The seller sued the buyer, which objected that the seller was in breach of contract for lack of conformity of the goods and that the buyer was thus entitled to set off the seller’s request with its claim for damages. The buyer, referring to the CISG argued that the cheese [should] “be fit for the purpose expressly or impliedly made known to [the seller] and that the cheese possesses the qualities of sample cheese provided” (article 35 CISG). The judge of first instance dismissed the buyer’s allegations.

On appeal, the Supreme Court made the decision mainly on the facts themselves. The judge found there was no source of proof of any matter relevant to the question of the quality of the cheese and its being the cause of the reduction in sales. Besides, after the buyer had received the complaints from its customers, it had remained silent on the quality or source of the cheese for a long time and continued to accept the cheese from the seller and make payments. Considering all these circumstances, the judge concluded that there was not a genuine offsetting claim and the appeal was dismissed.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 35

Classification of issues using UNCITRAL classification code numbers:

35A [Conformity of goods to contract: quality, quantity and description required by contract ; Requirements implied by law]

Descriptors: Conformity

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Editorial remarks

EDITOR: Bruno Zeller

Delphic Wholesalers (Aust) Pty Ltd v Agrilex Co Limited [2010] VSC 328 (6 August 2010)

In brief this case was decided on the facts alone. It can be said that the facts speak for themselves and the counterclaim was correctly dismissed. The product, namely cheese, was received mid September 2007 but "The first written complaint by Delphic as to the quality of the cheese and its origin is in a letter sent by Delphic's lawyers on 28 January 2009"[1]

It would have been of value if the court would have used articles 38 and 39 CISG to note that the letter of complaint sent by the respondent was not in conformity with the CISG. Hence even if there would have been a question of conformity of good under article 35 CISG it would have failed in any case.


FOOTNOTES

1. Para 21.

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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): Australasian Legal Information Institute website: <http://www.austlii.edu.au/au/cases/vic/VSC/2010/328.html>

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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