Schib Packaging SrL v Emrich Industries Pty Ltd

[2005] VSCA 236

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Service out of jurisdiction
3. › County Court writ served in Italy
4. › Jurisdictional requirements for service
5. › Whether contract made within Victoria
6. › Whether acceptance received in Victoria by instantaneous communication
7. › County Court Rules r.7.01(1)(f)(i)
1. Contract
2. › Formation
3. › Acceptance by instantaneous communication
4. › Place where contract made
5. › Whether fax constituted acceptance or counter-offer
6. › Whether subsequent countersigning was mere confirmation
1. Practice and Procedure
2. › Service out of jurisdiction
3. › Endorsement on originating process
4. › Failure to include endorsement required by r.7.02(1)
5. › Whether failure constitutes nullity or irregularity
6. › Whether capable of dispensation under r.2.04
7. › County Court Rules rr.2.01, 2.04, 7.02(1)
1. Appeal
2. › Leave to appeal
3. › County Court to Court of Appeal
4. › Whether decision attended with sufficient doubt
5. › County Court Act 1958 (Vic), s 74(2D)

Quick Take

Where a contract is formed by facsimile, the contract is made at the place where the acceptance is received, and a fax that acknowledges and confirms an order at the offeror's price is strongly arguable as an acceptance, notwithstanding a request to countersign and return a copy. Failure to include the endorsement required by r.7.02(1) of the County Court Rules on a writ served out of the jurisdiction is an irregularity under r.2.01, not a nullity, and may be dispensed with under r.2.04 where no prejudice is demonstrated.