CSG Limited v Fuji Xerox Australia Pty Ltd

JUDGMENT 1BATHURST CJ : I agree with Sackville AJA. 2CAMPBELL JA : I agree with Sackville AJA. 3SACKVILLE AJA : Judgment was delivered in this appeal on 4 November 2011: CSG Ltd v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335 (" Appeal Judgment "). This judgment uses the same abbreviations. 4Directions were made in the Appeal Judgment for the parties to file agreed short minutes of order giving effect to the judgment, including orders dealing with costs. If no agreement could be reached, the following directions applied: "(a) CSG to file and serve within 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders; and (b) FXA to file and serve within a further 14 days short minutes of the orders that it says should be made (including on any question of costs), together with brief written submissions (not exceeding four pages) in support of those proposed orders." 5The parties were given the opportunity to make further submissions because, as the Appeal Judgment pointed out (at [140]), they had not specifically addressed the consequences, if any, that would flow ( inter alia ) from concluding that: "cl 37.2.2 [of the Dealership Agreement] required CSG, in the event that FXA terminated the Dealership Agreement, to perform all acts within its power necessary to procure the novation of the FSMAs [full service management agreements] and other identified agreements to FXA or to a nominated third party." 6On 22 November 2011, CSG filed written submissions attaching orders in the following form (with slight editorial changes): "1. Appeal allowed in part. 2. Set aside Declaration 3 and Order 4 made by the Supreme Court of New South Wales on 23 November 2010 insofar as the Declaration and Order relate to paragraph 3(c) of the Second Further Amended Summons. 3. Declare that following termination of the Brisbane and Maroochydore dealer agreements, the appellant is contractually bound to perform all acts within its power necessary to procure the novation to the respondent or its nominated third party of any or all Full Service Maintenance Agreements and Docu/mation version 1.1. Agreements referred to in Orders 5 and 6 of the primary Judge's Orders dated 16 December 2010. 4. Order that the obligation described in Order 3 be specifically performed and put into execution in the manner required by the Orders dated 16 December 2010. 5. Appeal otherwise dismissed. 6. The appellant to pay the respondent's costs of the appeal." 7On 29 November 2011, the respondent ("FXA") filed written submissions indicating that FXA did not dispute proposed Orders 1, 2, 5 and 6. However, FXA sought amendments to proposed Orders 3 and 4, as indicated on the following marked up version of the proposed orders: "3. Declare that following termination of the Brisbane and Maroochydore dealer agreements, the appellant is contractually bound to perform all acts within its power necessary to procure the novation to the respondent or its nominated third party of [omitted text: any of all Full Service Maintenance Agreements and Documation version 1.1 Agreement referred to in orders 5 and 6 of the primary judge's orders dated 16 December 2010] any or all Customer maintenance agreements (within the meaning of clause 37.2.2 of the Brisbane and Maroochydore dealer agreements) in respect of the Products (as defined in the Brisbane and Maroochydore dealer agreements) which were in effect as at 24 August 2010. 4. Without prejudice to the respondent's ability, for the purposes of quantifying the damages claimed at paragraph 6 of the Second Further Amended Summons dated 8 November 2010, to argue that the orders dated 16 December 2010 did not exhaust the obligations of the appellant under clause 37.2.2 of the dealer agreements, order [omitted text: Order] that the obligation described in order 3 be specifically performed and put into execution in the manner required by the orders dated 16 December 2010." 8Unfortunately, FXA's written submissions, although filed in the Registry in compliance with the Court's directions, were not drawn to the attention of the Court. This Court accordingly delivered a judgment on 6 February 2012 without the benefit of FXA's submissions. The judgment also contained an error in the orders. 9The parties correctly drew those matters to the attention of the Court. The parties were advised that the appropriate course, if they agreed, was for the judgment and orders made on 6 February 2012 to be recalled and for the Court to reconsider the form of orders and its judgment in the light of both parties' submissions. Very sensibly, the parties agreed to this proposed course. 10In the First Judgment, given on 23 November 2010 ( Fuji Xerox Australia Pty Ltd v CSG Ltd [2010] NSWSC 1258), the primary Judge made declarations that: