Garmin Australasia Pty Ltd v B & K Holdings (Qld) Pty Ltd

[2018] QCA 353

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary disposal
3. › Summary judgment for plaintiff
4. › Whether defendant has no real prospect of successfully defending claim
5. › Whether need for trial
6. › Inference of further undisclosed agreements
7. › Uniform Civil Procedure Rules 1999 (Qld), r 292(2)
1. Sale of Goods
2. › Action for price
3. › Retention of title clause
4. › Whether seller entitled to sue for price or limited to damages
5. › Whether price payable on day certain irrespective of delivery
6. › Sale of Goods Act 1923 (NSW), s 51(2)
1. Sale of Goods
2. › Contract of sale of goods
3. › Definition
4. › Whether agreement containing retention of title clause with power to on-sell constitutes contract of sale of goods
5. › Sale of Goods Act 1923 (NSW), s 6
1. Contract
2. › Implied terms
3. › Whether right to sue for price to be implied
4. › Business efficacy
5. › Relevance of express right to account for proceeds of sale
6. › Codelfa Construction Pty Ltd v State Rail Authority (NSW)
7. › BP Refinery (Westernport) Pty Ltd v Hastings Shire Council

Quick Take

A contract containing a retention of title clause permitting the buyer to on-sell goods (with title passing directly to the ultimate purchaser) is an 'agreement to sell' within the Sale of Goods Act. However, where payment terms link payment to delivery, the price is not payable on a 'day certain irrespective of delivery' under s 51(2). Whether such a contract impliedly entitles the seller to sue for the price (rather than damages) requires consideration of the Codelfa implied term criteria, particularly business efficacy, and may require extrinsic evidence — especially where the seller has an express right to require the buyer to account for proceeds of on-sales.