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[2019] VSC 323
Supreme Court of Victoria
2019-05-17
SLOSS J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application for summary judgment - Where the plaintiff seeks summary judgment on claims for breach of a distribution agreement - Distribution agreement to be construed according to the laws of Israel - Defendant alleges surrounding circumstances inform the proper construction of the distribution agreement - Whether ambiguity as to construction of the distribution agreement - Whether defendant has real prospect of success on its defence - Whether in the interests of justice to grant summary judgment - Whether a full hearing on the merits is appropriate - Civil Procedure Act 2010 (Vic), ss 61, 63 and 64 - ; - (2009) 29 VR 213.
Mr Christopher Joannou was granted leave to appear as a representative of the Defendant
1 This proceeding concerns a dispute between the plaintiff, Israfoods (2006) Ltd ('Israfoods'), and the defendant, J & D Consortium Pty Ltd ('J & D Consortium'). Israfoods is an Israeli company that manufactures various food and beverage products which are sold to wholesalers internationally. J & D Consortium is a distribution company based in Melbourne, whose business is effectively to on-sell innovative products from around the world to Australian and New Zealand retailers and foodservice companies. The dispute arises from an agreement, styled as a 'Distribution Agreement', that was entered into between Israfoods and J & D Consortium on 26 May 2014, following two discrete tranches of negotiations that were conducted 12 months apart.
2 Notwithstanding that the trial of the matter had been fixed to commence on 28 April 2019, by summons filed on 28 March 2019, Israfoods made an application for summary judgment pursuant to s 61 of the Civil Procedure Act 2010 (Vic) ('CPA') and for associated orders. Subsequently, orders were made vacating the trial date and listing Israfoods' summary judgment application for hearing on 28 April 2019. The application was heard on that day and judgment was reserved.
3 For the reasons which follow, I am not satisfied that the defence raised by J & D Consortium has no real prospect of success. Even if, contrary to the view I have formed, I was satisfied that the defence raised by J & D Consortium had no real prospect of success, I am of the view that the present case is one where it would be appropriate for the Court to exercise the discretion conferred by s 64 of the CPA and allow the matter to proceed to trial.
4 Cases involving questions of construction of commercial contracts are rarely viewed as suitable vehicles for determination on a summary judgment basis.[1] The central issue in dispute between the parties in this proceeding concerns the proper construction of the Distribution Agreement. The Distribution Agreement expressly provides that it is to be 'construed under and governed exclusively by the laws of the State of Israel'.[2] The task of discerning the proper construction of the agreement is by no means a straightforward exercise. That is because the Court will require expert evidence to be led about the relevant principles and content of the law of Israel before it can undertake the construction task.
5 Furthermore, from virtually the outset of the proceeding, J & D Consortium has maintained that what took place during the pre-contractual negotiations informs the proper construction of the Distribution Agreement. In particular, it contends that when the Distribution Agreement is properly construed having regard to those negotiations, it will be seen that the 'minimum Sales Target' relied upon by Israfoods was 'aspirational' or 'indicative only' and 'did not impose any legal obligation upon [J & D Consortium] to actually achieve the minimum Sales Targets in a manner that enables [Israfoods] to claim for any amount representing any loss of bargain'.
6 Israfoods, on the other hand, contends that upon entry into the Distribution Agreement, J & D Consortium became obliged to purchase not less than the minimum Sales Target for the Israfoods' product, being the sum of US$1,032,000, within twelve months from commencement.
7 In my view, given the role of the law of Israel to the question of the proper construction of the Distribution Agreement, and the asserted relevance of surrounding circumstances, including matters such as the pre-contractual negotiations in informing the proper construction, it is not possible to do justice to the competing constructions without requiring a full trial.
8 The Distribution Agreement was entered into between Israfoods and J & D Consortium on 26 May 2014. It appears that the agreement was reached against the background of some initial discussions that took place in about mid-April 2013 between Mr Yehuda Deutsch, the sole director of Israfoods, and members of the Joannou family representing J & D Consortium. No agreement was reached following those initial discussions; however, approximately a year or so later, the discussions were revived and they culminated in the parties entering into the Distribution Agreement.
(a) The lack of artificial preservatives not found in lemons;
(b) The preservation of the nutritional value of the lemon in powder form;
(c) The ready dissolution of the lemon; and
(d) The unique process for dissolving, drying, powderizing and packaging the lemons.
10 In general terms, the Distribution Agreement provided that Israfoods would supply its Lemon Tree Dried Lemon Juice product to J & D Consortium, and J & D Consortium would use its reasonable efforts to 'supervise, promote and maximize the Distribution of the Products in the Territory'.
11 Under cl 2.1 of the Distribution Agreement, Israfoods appointed J & D Consortium to be an 'exclusive' distributor of its product in Australia and New Zealand for an initial term of approximately 19 months, terminating on 31 December 2015 unless terminated earlier, with provision for automatic renewals for periods of one year unless notice of intention not to renew was given.
12 The exclusive nature of the distribution rights conferred on J & D Consortium is further clarified by the definitions of the terms 'Distribution', 'Exclusive' and 'Independent Clients' in cl 1 of the Distribution Agreement, as follows:
the resale and distribution of the Products in the Territory by the Distributor through any available channels of distribution in order to secure Product Availability on a continuing basis for each of the Products in the Territory.
the term "Exclusive" in this Agreement shall not include Products sold pursuant to ISRAFOOD'S agreements with Independent Clients; which ISRAFOODS or its OEM distributors may sell in the Territory without any restriction.
OEM partners, Global and/or international companies and chains, with branches in the Territory.
13 Schedule B to the Distribution Agreement sets out a 'Sales Target', which is defined as being '[t]he minimum distribution and sales objectives for the Products in the Territory during a calendar year'. Relevantly, Schedule B states as follows:
[*] MQI is based on, but does not necessarily mean, minimum monthly consumer packet (retail) units quota.
[**] By way of clarification - Unless modified according to this Agreement Total Minimum Sales Target per calendar year shall be equal to:
50,000 x 1.72[5] x 12 = 1,032,000 USD.
14 Clause 2.2 of the Distribution Agreement deals with the period of exclusivity of the distribution rights conferred on J & D Consortium by cl 2.1, and provides that:
In the event the Distributor will not place orders in accordance with the provisions of this Agreement in minimum aggregated amount of 86,000 U.S. $ (the value of 50,000 retail boxes) within four months from the date of signature of this Agreement by the Parties, ISRAFOODS shall be entitled to cancel the exclusive distribution rights of the Distributor by written notice to Distributor, in which case the Distributor will continue to act as a non-exclusive distributor of the Products in the Territory under the terms of this Agreement for the term hereof. For the avoidance of doubt, except in relation to the cancellation of the exclusivity, all other terms of this Agreement will remain unchanged and shall continue to apply.
15 Clause 4(b) of the Distribution Agreement, which provides for the consequences of J & D Consortium's failure to achieve the minimum Sales Targets, is at the heart of this dispute. Clause 4(b) provides as follows:
At all times during the term of this Agreement, the Distributor shall:
...
(b) achieve not less than the minimum Sales Targets for the Products in the Territory in accordance with this Agreement. Without prejudice to any other provision of this Agreement, the Distributor hereby acknowledges that a failure on its part to achieve the annually agreed Sales Targets shall constitute a material failure of the performance expected of it as the Distributor of the Products and may lead to the termination of this Agreement; It is hereby clarified for the avoidance of doubt that unless specifically and expressly set out otherwise in this Agreement, any failure by the Distributor to achieve the Sales Targets shall not entitle the Distributor to any compensation, restitution, reimbursements or other consideration from Israfoods for such failure;
16 Clause 14.3 contains a suite of provisions that confer rights on Israfoods to terminate in certain specified circumstances. Relevantly, for present purposes, cl 14.3(c) deals with Israfoods' right to terminate in the event of a failure by J & D Consortium to achieve 'Sales Targets'. Clause 14.3(c) provides that:
Israfoods reserves the right to terminate this Agreement at any time, at Israfoods' sole discretion and will, in the following circumstances:
...
(c) by providing the Distributor with a thirty (30) days notice if the Distributor fails to achieve the Sales Targets ...
17 Clause 14.4 sets out the following obligations of J & D Consortium upon the expiration or termination of the Distribution Agreement:
Upon the expiration or termination of this Agreement for any reason whatsoever, the Distributor shall:
(a) forthwith cease carrying on the Distribution;
(b) terminate all agreements with its customers, retailers, sub-contractors, etc, in particular terminating the right to use the Intellectual Property and Trademarks;
(c) promptly provide ISRAFOODS with contact details and outstanding sales and stock reports, in respect of each Distributor's customer.
(d) promptly return to ISRAFOODS all confidential information and documents (in whatever form) relating to the business or affairs of any ISRAFOODS Company which the Distributor may have in its possession or under its control upon termination or expiration of the Agreement as applicable; and
(e) promptly return to ISRAFOODS all promotional materials that may be supplied by ISRAFOODS; and
(f) forthwith cease to make any representation that it is a distributor of the Products or that it is authorized to sell the Products; and
(g) refrain from any and all use of the Trademarks and shall not use any name or mark which is similar to the Trademarks in connection with any products whatsoever; and
(h) remove from public view any signs, banners, wall charts, certificates, plaques, or ornamentations stating or suggesting that it is a distributor of the Products or that it is authorized to sell the Products.
18 Clause 14.6 confirms that the expiration or termination of the Distribution Agreement for any reason 'shall not affect the liability of either party to the other in respect of any antecedent matter or thing...which shall survive termination or expiry of this Agreement'. Clause 14.7 provides that, in the event of expiration or termination of the Distribution Agreement, J & D Consortium 'shall not be entitled to any compensation, damages, payment for goodwill that has been established' and so on. Clause 14.8 provides that J & D Consortium expressly 'acknowledges and agrees' that any goodwill developed as a result of entry into the Distribution Agreement in the Territory 'shall be deemed to belong to Israfoods'.
19 Separately, clause 11 of the Distribution Agreement deals with 'Indemnification [and] Limited Liability'. Clauses 11.6 and 11.7 address matters including claims for 'loss of profits' between the respective parties. Relevantly, cl 11.6 provides as follows:
11.6 The Distributor shall have no liability for any indirect or consequential losses or expenses suffered by ISRAFOODS, howsoever caused, and including, without limitation, loss of anticipated profits, goodwill, reputation, business receipts or contracts, losses or expenses resulting from third party claims.
20 It is common ground that J & D Consortium did not purchase any product from Israfoods within 4 months of entering into the Distribution Agreement.
21 Israfoods alleges that shortly thereafter, on or about 21 October 2014, J & D Consortium informed Israfoods by email that it had been discussing the sale of Israfoods' dried lemon juice product with a major bakery. As the discussions were going well, and it was close to securing a deal, J & D Consortium required an extension of the four month exclusivity period. Israfoods alleges that this email contained representations that:[6]
(a) J & D Consortium was proactively working towards the sale and distribution of Israfoods' product in Australia; and
(b) J & D Consortium's distribution of Israfoods' product was going to result in future sales.
22 Further, Israfoods alleges that, in reliance on those representations, it agreed to vary the Distribution Agreement so as to extend the exclusivity period to 26 December 2014 and to include a term that J & D Consortium would use its best endeavours to sell Israfoods' product to the relevant bakeries.[7]
23 As matters transpired, no deal eventuated, and no product was purchased by J & D Consortium pursuant to the Distribution Agreement.
24 On 19 May 2015, Israfoods' solicitors sent J & D Consortium a notice requiring it to rectify (what it alleged was) a breach of the Distribution Agreement, by failing to purchase products totalling USD $1,032,000.[8]
25 Notwithstanding service of the notice, J & D Consortium refused to pay Israfoods that amount.
26 Against that background, Israfoods commenced this proceeding on 13 October 2015. In its statement of claim, Israfoods alleges that J & D Consortium is and remains 'indebted' to it in the sum of USD $1,032,000 and seeks damages in that amount.[9] Israfoods also pleads a claim for damages or compensation based on representations it alleges were made by J & D Consortium to induce it to vary the Distribution Agreement in or about October 2014, but that claim is not pursued on the summary judgment application.[10]
27 In its amended defence, J & D Consortium admits that:
(a) it entered into the Distribution Agreement;[11]
(b) the Distribution Agreement contains the terms alleged by Israfoods (though it takes issue with the proper construction some of those terms);[12]
(c) at no point has it purchased any product from Israfoods;[13]
(d) it sent the email to Israfoods on 21 October 2014 referred to in paragraph 21 above;[14] and
(e) it received the default notice from Israfoods on or around 19 May 2015,[15]
however, it denies that it is indebted to Israfoods in the sum of USD $1,032,000.[16]
28 While J & D Consortium admits the terms of the Distribution Agreement pleaded by Israfoods, it also alleges that the agreement contains the following additional terms:
(a) clause 2.2 - permitting Israfoods to cancel the exclusive distribution rights granted to J & D Consortium in the event that J & D Consortium did not place orders of not less than USD $86,000 within 4 months from the date of the execution of the Distribution Agreement;
(b) clause 11.6 - providing that J & D Consortium shall have no liability for any indirect or consequential losses or expenses suffered by Israfoods, however so caused, and including, without limitation, loss of anticipated profits; and
(c) clause 20.1 - the Distribution Agreement is to be construed under and governed exclusively by the laws of the State of Israel, and that the proper law of the contract is that law.
29 Importantly for present purposes, the primary defence advanced by J & D Consortium is one based on the proper construction of the Distribution Agreement, which it contends is confirmed by reference to the pre-contractual negotiations that took place between 1 May 2013 and 26 May 2014 when the Distribution Agreement was entered into. In its amended defence, J & D Consortium pleads that, properly construed, cl 4(b) of the Distribution Agreement, and any other indication that the J & D Consortium was required to meet a minimum sales target, was 'aspirational' and did not impose any legal obligation upon the J & D Consortium to actually achieve a minimum sales target in a manner that enabled Israfoods to claim for any amount representing any loss of bargain.[17]
30 J & D Consortium further alleges that the Distribution Agreement should be construed in light of what it says is the 'usual practice' in the distribution industry, which includes that the Distribution Agreement is subject to J & D Consortium finding any buyers for the products.[18]
31 On the basis of the construction for which it contends, J & D Consortium alleges that, while it did not purchase any product from Israfoods nor achieve the minimum sales target, its actions do not amount to breaches of the Distribution Agreement.[19]
32 It is further pleaded by J & D Consortium that Israfoods:
(a) failed to mitigate its loss by failing to terminate the Distribution Agreement and seeking 'alternative distribution options';[20]
(b) waived its right to claim against J & D Consortium by electing to continue the Distribution Agreement despite J & D Consortium having failed to meet the minimum sales target within the requisite period;[21] and
(c) is estopped from making a claim against J & D Consortium because it allowed J & D Consortium to incur additional costs and expenses in continuing the Distribution Agreement.[22]
33 In the alternative, J & D Consortium asserts that if Israfoods is entitled to relief, it should receive only the amount of the minimum aggregate order for the first 4 months of the Agreement of USD $86,000, or, alternatively, Israfoods is only entitled to the amount of lost profits.[23]
34 Against this background, and by summons filed on 28 March 2019, Israfoods seeks summary judgment against J & D Consortium pursuant to s 61 of the CPA and for the following associated orders:
35 Israfoods' application is supported by an outline of written submissions and an affidavit of Mr Manuel Puyol, solicitor for Israfoods, affirmed on 22 March 2019 ('Puyol affidavit').
36 Israfoods' application was listed for directions only, in the first instance. At the directions hearing held on 5 April 2019, Israfoods was represented by counsel. By that point, however, the solicitors acting for J & D Consortium had filed a notice of ceasing to act, with the result that the defendant no longer had a solicitor acting for it. In those circumstances, Mr Chris Joannou, a son of the proprietors of the business, attended the directions hearing and sought to represent the defendant. Mr Joannou was granted leave to appear on behalf of J & D Consortium for the sole purpose of that directions hearing.[24]
37 At the directions hearing, counsel for Israfoods informed the Court that while it was seeking to have its summary judgment application heard (and determined) in advance of the trial, Israfoods nevertheless recognised that would be difficult to achieve with the trial having been listed to commence on 29 April 2019. In those circumstances, counsel effectively requested that the Court vacate the trial dates and instead proceed to hear the summary judgment application on (what would otherwise be) the first day of the trial. He submitted that adopting such a course would likely minimise the costs involved, in that, if the plaintiff were successful, the considerable costs associated with preparing for trial and having witnesses from Israel travel to Australia to attend and give evidence at the trial could be avoided.
38 Mr Joannou did not actively oppose the hearing of the summary judgment application in advance of the trial[25] but rather sought to clarify with the Court that, if the application proceeded, whether the defendant would have the opportunity 'to object to the summary judgment or put something forward'.[26]
39 Against that background, and in circumstances where the parties had not completed all of the procedural steps that were timetabled to take place before trial, the Court vacated the trial date and made orders directed to facilitating the hearing of the summary judgment application on 29 April 2019.
40 At this point, it is convenient to turn to the principles applicable to the grant of summary judgment.
41 The principles in Victoria concerning the requirements which must be satisfied for a plaintiff in order to obtain summary judgment have recently been considered and aptly summarised by Matthews JR in Padella Pty Ltd v Elliott.[27] For convenience, I have largely adopted those principles as distilled by Matthews JR, which are set out below.
42 Section 61 of the CPA permits a plaintiff to make an application for summary judgment on the ground that the defendant's defence or part of that defence has no real prospect of success. Section 63 of the CPA provides that, subject to s 64, the court may give summary judgment in a civil proceeding 'if satisfied' that a claim has 'no real prospect of success'.
43 Section 64 of the CPA provides that:
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
(a) the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125];
(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
45 Section 7(1) of the CPA sets out its overarching purpose, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the court to have regard to these purposes in making any order or giving any direction in a civil proceeding.
46 Where a plaintiff in a civil proceeding seeks to bring an application under s 61 of the CPA, it must be made in accordance with Order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules').[30]
47 Rule 22.04 of the Rules sets out the material required to be filed in support of an application for summary judgment. It provides as follows:
(1) An application shall be made by summons supported by an affidavit -
(a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and
(b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim -
(i) has no real prospect of success; or
(ii) has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.
(2) Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.
(3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.
(4) The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons.
(1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.
(2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.
(3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons.
49 The requirements set out in rr 22.04 and 22.05 were considered by the Court of Appeal in Hausman v Abigroup Contractors Pty Ltd.[31] In relation to an affidavit in support of an application for summary judgment, the Court of Appeal stated that what 'must be verified are the facts necessary to establish a good cause of action'.[32] Once the plaintiff has established the elements of its cause of action, there is 'something akin' to a shifting of the evidential burden to the defendant.[33]
50 With regard to the equivalent of what is now r 22.05, the Court of the Appeal stated as follows:[34]
[62] ... Assuming the plaintiff's application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court. The Rule provides that the defendant can show such cause 'by affidavit or otherwise'.
[63] The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
[64] Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.
[65] The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff's claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.
51 Those principles from Hausman v Abigroup extracted above remain good law since the advent of the CPA.[35]
Summary judgment where the construction of a contract is in issue
52 In cases which involve the disputed construction of an agreement, it has been often found that summary judgment may not be appropriate, particularly where evidence of surrounding circumstances is sought to be relied upon to resolve an asserted ambiguity.[36]
55 Ultimately, Croft J allowed the appeal and dismissed the summary judgment application. In delivering his reasons, his Honour referred to the 'length and complexity of the provisions of the [document in question]', and stated that he was of the opinion that 'even if the Court had doubts as to the prospect of success of a defendant's claims in circumstances like the present in terms of the s 63 test, the proper course would be to exercise the discretion under s 64 and to require a full trial of the claims'.[41]
56 The approach taken by Croft J was endorsed by the Court of Appeal in Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd.[42] In their joint judgment, Redlich JA and Judd AJA drew attention to the need for courts to give separate consideration to the discretion under s 64 when determining applications for summary judgment, stating:[43]
The authorities reviewed by Croft J in JBS Southern Aust v Westcity Group Holdings, which disclosed the underlying rationale for s 63 of the Act, make it clear that an inquiry as to whether a case has "no real prospects of success" involves considerations extending beyond an analysis of the sufficiency of the statement of claim to plead a cause of action. The new power under s 63 is not one to be exercised by reference only to the sufficiency of the pleading. For as Croft J said in JBS Southern Aust v Westcity Group Holdings, "even if the Court had doubts as to the prospect of success of a defendant's claims...in terms of the s 63 test, the proper course would be to exercise the discretion under s 64 and to require a full trial of the claims". The same may be said of a plaintiff's claim in this case.
57 In APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd,[44] Bell J determined an appeal from an application for summary judgment which was refused by Randall AsJ. The application required consideration of the proper construction of a unit subscription and put option deed. His Honour dismissed the appeal on the basis that:[45]
...[T]he defence in this case can only properly be evaluated upon a full consideration of the provisions of the deed at trial. While the plaintiff's case seems strong on the law and indeed on the merits, there is a material risk that the court would do a serious injustice to the defendant by giving summary judgement against it.
58 More recently, in Amcor Ltd v Peter J Ramsay & Associates Pty Ltd,[46] Kennedy J considered an application for summary judgment brought by the defendant in that proceeding. The claims related to the retention of the defendant by the plaintiffs as a consultant to identify and cost a contamination at a site owned by one of the plaintiffs. One of the issues which arose for determination was which of the plaintiff entities had contracted with the defendant for the purposes of engaging him to undertake the site investigation and assessment.
59 Kennedy J found that, given the ambiguity as to the identity of the contracting party, and the fact that counsel for the respective parties had both sought to make reference to evidence of surrounding circumstances, summary judgment was inappropriate.[47] Her Honour adopted the reasoning of Bell J in APN Funds Management Ltd, finding that:[48]
[73] It is not appropriate for a court to resolve a question of construction in these circumstances without hearing appropriate evidence at trial. To make orders for summary dismissal in such circumstances gives rise to a risk of a serious risk of injustice to the plaintiffs.
[74] I am therefore unable to be satisfied that the plaintiffs have no real prospect of success in identifying Amcor Ltd as the contracting party without a hearing on the merits.
60 These cases demonstrate that where the proper construction of a contract is at issue in a proceeding, it will not ordinarily be appropriate to grant summary judgment, particularly where the contract under consideration is complex.
61 I turn now to material filed by Israfoods in support of its application for summary judgment.
62 As noted above, Israfoods' application is supported by an affidavit of its solicitor, Mr Puyol. The Puyol affidavit describes the basis of Israfoods' claim as one arising from J & D Consortium's failure to perform the Distribution Agreement. Therein, Mr Puyol also clarifies that the claim brought by Israfoods is 'a claim for direct loss arising under the agreement (net profit), rather than any consequential or indirect loss'.[49] I note, however, that Israfoods' claim as pleaded is framed in terms of a claim in debt,[50] albeit that the prayer for relief seeks damages in the amount of USD $1,032,000 or such other sum as the Court determines. In this regard, Mr Puyol explains:[51]
While the claim figure is the full purchase price of ($1,032,000.00), the plaintiff concedes that net profit is the appropriate measure of damages, as described.
63 Mr Puyol also refers to an independent expert's report on the applicable laws of the State of Israel, which was prepared by Dr Michael Baris, an Israeli lawyer and academic, on instructions from Israfoods' solicitor. The expert report, which was annexed to an affidavit affirmed by Dr Baris on 30 October 2017, appears in the court book and is discussed in more detail below.[52]
64 In his affidavit, Mr Puyol highlights the following aspects of Dr Baris' report which, in his view, establish that J & D Consortium's defence has no real prospect of success:[53]
[76] [Dr Baris],[54] at page 6 of his report considers the nature of the obligation to meet the minimum sales target, which he describes as an 'absolute' commitment, and a 'core element of distribution agreements,' with reference to a body of Israeli case law.
[77] [Dr Baris] also notes, at pages 7-8 of his report, the distinction between direct loss, against 'indirect or consequential loss,' the latter of which the plaintiff cannot recover under the Agreement, while no prohibition is expressed concerning direct loss.
[78] [Dr Baris] also deals with the appropriate measure of damages in contract, including at pages 17-18 of his report. The effect of his summation is that a wronged party, under Israeli contract law, is to receive damages, based on an expected profit measure.
[79] [Dr Baris] concludes with a rejection of the defence that the defendant merely needed to use 'reasonable efforts' to on-sell the products under the Agreement, as opposed to meet the minimum sales target.
65 Mr Puyol also refers to the evidence proposed to be given by Mr Deutsch on behalf of Israfoods and the 'Notice to Admit Facts and Documents' filed on its behalf and dated 25 January 2019, to which J & D Consortium has not responded. Much of the latter document is directed to the calculation of the loss of (net) profit that Israfoods contends it has suffered as a result of J & D Consortium's failure to purchase the 'minimum Sales Target' of Israfoods' product pursuant to the Distribution Agreement.
66 Mr Puyol concludes by summarising the reasons why the plaintiff contends summary judgment ought be granted. Those reasons are as follows:[55]
[80] I verily believe that the plaintiff has put before the Court, and to the defendant, all necessary matters for the action to succeed.
[81] I do not believe that the defendant, having filed no opposing material - and as such not permitted to lead evidence - can succeed in its defence.
[82] A summary judgment will further the objectives of the Civil Procedure Act 2010, in that it will avoid an unnecessary trial that, in the circumstances, will not occupy the three days allocated. In addition, it will save my client significant expense of booking flights to come from Israel to Melbourne for the trial.
[83] Given the defendant has filed no material, and has failed to respond to the Notice to Admit, I cannot see any prejudice to the defendant.
67 The expert report of Dr Baris was filed on behalf of Israfoods on 13 November 2017. Dr Baris' report outlines the relevant laws, including the law of contract, of the State of Israel which would have particular application in construing the Distribution Agreement and any loss allegedly suffered by Israfoods. Dr Baris has also undertaken a legal assessment of the Israeli law, as presented by him, and applied it to the Distribution Agreement.
68 Dr Baris' report is divided into several sections which consider the law of the interpretation of contracts in Israel and its application to the Distribution Agreement, as well as the remedies available for breach of contract in Israel and their application to the Distribution Agreement. It is necessary to briefly summarise the sections of Dr Baris' report that are relevant to this application. Before doing so, however, it is convenient to note some of the background observations Dr Baris makes about the contract law of Israel at the time of his report, namely:[56]
Interpretation of a Contract
25.(a) A contract is to be interpreted in accordance with the presumed intention of the parties, as understood from the contract and the circumstances of the matter; However, if the intention of the parties is clearly understood from the language of the contract, the contract will be interpreted according to its language.
(b) Where a contract is subject to different interpretations, the interpretation that validates the contract is preferred over that which would terminate the contract.
(c) Terms and clauses in the contract that are used by custom in contracts of that type, are to be interpreted according to the meaning accorded in those contracts.
...
71 Section 26 states that 'details that were not determined in or according to the contract will be according to what is customary between the parties, and where there is no such custom according to the customary practice in contracts of similar type, and these details are to be seen as consented to by the parties'.[59]
72 Dr Baris says that, '[i]n addition, the good faith requirement provided - and still provides - an over-arching interpretive principle, alongside the explicit preference for validation of the contract, in contrast with its termination'.[60]
73 Dr Baris continues to explain that the landmark decision of State of Israel v Aprofim 49(2) PD 265 (1993) created a sense of uncertainty in contractual interpretation, because 'the Court rejected the "two tier" interpretive approach, blurring the distinction between the contract and its circumstances'.[61] Relevantly, Dr Baris says that 'the Court [in Aprofim] ruled that the context of a contract is an integral component in determining the intent of the parties, and that plain language cannot stand alone, without reference to the parties' intent'. He says that commentators have observed that '[t]he joint intent of the parties is to be deduced not only from the language of the contract but also from the circumstances in which the contract was formed'.[62]
74 Dr Baris goes on to explain that, in Aprofim, Chief Justice Aharon Barak observed that s 25(a), in its original wording and when referring to the intentions of the parties to the contract, was referring to their '(subjective) purposes, objectives, goals and interests (that found external expression) that the parties wished (jointly) to achieve through the contract'.[63]
75 Dr Baris observes that while s 25(a) was amended in 2011, 'ostensibly to restore the primacy of literal interpretation, and to remove the potential for ambiguity in contract interpretation', nevertheless there remains scholarly debate as to 'whether the amended clause has reinforced the Aprofim decision, or restored the primacy of literal construction of contracts'.[64] He continues to note that in 2012:[65]
The Court's majority decision in PCA 3961/10 National Insurance Institute v. Sahar (22.6.2012) retained the primacy of the subjective intent of the contracting parties, while emphasizing the central significance, but not exclusivity, of the contract's language in determining the mutual intent.
76 Against that background, Dr Baris reaches the following conclusion:[66]
In practice, where language is clear, the obligations make sense, and the principle of good faith is upheld - the language of the contract is considered the correct guide for determining the intent of the parties. As I understand the contract under discussion, there is no conflict between its language and the circumstances, in determining the contractual intent of the parties, and the language of the contract clearly reflects the internal logic of the mutual obligations. Stipulations that are deemed by Israeli case law as essential elements of distribution agreements reinforce the clear language of the contract at hand... The final judgment will be the court's, yet the onus to convince the court that common practice and/or the internal logic of the transaction deviate from the language of the contract and the intent that it clearly reflects rests on the party that reads the agreement otherwise.
77 Dr Baris then proceeds to apply these principles of contractual interpretation to the Distribution Agreement and assesses the rival constructions proffered by the respective parties. For the purposes of the summary judgment application, however, I propose to have regard only to Dr Baris' statement of the principles that apply under the laws of Israel.
78 Under this section of his report, Dr Baris outlines the principles of Israeli law that apply in cases of breach of contract. According to his description, it appears that the law of Israel applies on similar grounds to Australian law, including damages for expectation loss.
79 During the hearing, counsel for the plaintiff acknowledged that, if the Court were minded to grant the application for summary judgment, to the extent that damages were claimed (rather than a debt, as pleaded), the appropriate course would be to enter an interlocutory judgment for damages to be assessed, rather than to determine the quantum of damages at this stage. Accordingly, it is similarly unnecessary to have regard to the damages principles outlined by Dr Baris for the purposes of this summary judgment application.
80 J & D Consortium opposes the summary judgment application. To that end, Mr Chris Joannou has sworn an affidavit dated 24 April 2019, which was provided to my chambers by email on 26 April 2019 ('Joannou affidavit').[67]
81 In his affidavit, Mr Joannou outlines the substance of the evidence that J & D Consortium proposes to adduce at trial,[68] and responds to matters contained in the Puyol affidavit and the written outline of submissions filed on behalf of Israfoods. No separate outline of submissions was filed on behalf of J & D Consortium.
82 The Joannou affidavit puts before the Court, albeit in a summary form, the substance of the evidence relied upon by J & D Consortium, and outlines the legal and factual material that J & D Consortium contends provides a real arguable response to Israfoods' claim. In essence, by reference to the witness outlines provided on behalf of J & D Consortium on 29 March 2019 (and exhibited to his affidavit), Mr Joannou notes in response to Mr Puyol's affidavit inter alia that:[69]
(d) Without repeating the witness outlines verbatim, they observe:
(i) The Defendant's position on the usual business practice in the distribution industry, namely the reasons why a commitment to purchase upfront stock is unworkable and absurd (e.g. paragraph 1.3 of Mr John Joannou's witness outline).
(ii) Written communications that occurred prior to signing the distribution agreement, including an email from Mr Chris Joannou to Mr Yehuda Deutsch dated 1 May 2013 (e.g. paragraph 2.5 of my witness outline) . . .
(iii) A conversation between Mr Deutsch and Mr Joannou, prior to execution of the distribution agreement, to the effect that the Defendant would not be required to commit to the upfront purchase of any stock (e.g. paragraph 2.4 of Mr John Joannou's witness outline).
83 I am satisfied that the body of material provided in the Joannou affidavit is relevantly 'show cause' material of the kind required by rule 22.05 of the Rules.
Hearing of summary judgment application on 29 April 2019
84 At the hearing of the plaintiff's application, counsel for Israfoods contended that J & D Consortium cannot show cause as to why summary judgment ought not be granted, given J & D Consortium's failure to file any expert evidence as to the law of Israel, and the admissions arising from its failure to respond to Israfoods' notice to admit.
85 Israfoods summarised six defences said to be relied on by J & D Consortium in its amended defence and contended that those defences do not hold a real prospect of success. As noted earlier, the relevant defences relied on by J & D Consortium are to the following effect:
(a) on a proper construction of the Distribution Agreement, Israfoods was entitled to cancel the 'exclusive distribution rights' of J & D Consortium if USD $86,000 worth of orders were not placed within 4 months of execution, from which it follows:
(i) Israfoods did not take reasonable steps to mitigate its loss (because it did not terminate the Distribution Agreement and seek 'alternative distribution options');
(ii) Israfoods waived its right to claim against J & D Consortium, by electing to continue the Distribution Agreement following J & D Consortium's failure to meet the 'minimum Sales Target'; and
(iii) Israfoods is estopped from making a claim against J & D Consortium, because it allowed J & D Consortium to incur additional costs and expenses in continuing the Distribution Agreement following J & D Consortium's failure to meet the 'minimum Sales Target';
(b) by cl 11.6 of the Distribution Agreement, J & D Consortium has no liability 'for any indirect or consequential losses or expenses suffered by Israfoods, howsoever caused, and including, without limitation, loss of anticipated profits [etc.]';
(c) having regard to pre-contractual negotiations, the 'minimum Sales Target' contained in cl 4(b) of the Distribution Agreement was aspirational only and did not impose on J & D Consortium any legal obligation to actually achieve the minimum Sales Target in a manner that enables Israfoods to claim for any amount representing any loss of bargain;
(d) the 'usual business practice in the distribution industry' informs the proper construction of the Distribution Agreement, such that if the construction were otherwise than as indicated in sub-paragraph (v) below, the Distribution Agreement would lack business efficacy and would be unworkable or absurd. The 'usual business practice in the distribution industry' is said to be as follows -
(i) the distributor and supplier will enter into an initial agreement under which the distributor has exclusive distribution rights for the supplier's product;
(ii) under such agreement, the exclusive distribution rights are the principal consideration received by the distributor;
(iii) the distributor will undertake, at their own expense, efforts to attract purchasers of the supplier's product; and
(iv) under such agreement, the cost and effort of these undertakings by the distributor is the principal consideration received by the supplier; and
(v) any stipulation of intended, expected, or projected sales or purchase volumes and prices in any such agreement is aspirational or indicative only and not intended to create legal rights, duties or liabilities;
(e) if, which is denied, Israfoods is entitled to any relief, it should be limited to the sum of USD $86,000, being the minimum aggregated amount specified in cl 2.2 of the Distribution Agreement for the orders to be placed by J & D Consortium within the first 4 months; and
(f) alternatively, if, which is denied, Israfoods is entitled to any relief, it should be limited to the amount of lost profits from the sale of Israfoods' product to J & D Consortium under the Distribution Agreement.
86 Save for the last of those grounds (which Israfoods admits is a correct statement of Israeli law), Israfoods refers to and relies principally upon the report of Dr Baris in seeking to establish that none of the other defences advanced by J & D Consortium can succeed.
87 For the most part, the analysis of the Distribution Agreement as presented by counsel for Israfoods, based on the principles set out by Dr Baris, takes issue with the construction advanced by J & D Consortium. For example, counsel submitted that the defences raised by J & D Consortium to the effect that Israfoods should have terminated the Distribution Agreement and mitigated its losses 'are illogical and do not reflect a proper reading of the Agreement, not least that it starts on the mistaken premise that clause 4(a) . . . can be used to read down clause 4(b)..., or that clause 2.2 . . . quashes the minimum sales target'.[70]
88 Further, in dealing specifically with J & D Consortium's assertion that the 'minimum Sales Target' was simply aspirational, counsel for Israfoods contended that the reasonable endeavours clause is 'in addition to the minimum sales target' such that 'as a matter of good faith, the distributor must strive to exceed the minimum sales target, but so long as it meets the minimum sales target will be considered to have fulfilled the terms of the contract'.[71] In this context, Israfoods also contends that because of Dr Baris' view that, 'within Israeli law, the [Distribution] Agreement can be interpreted based on language, without resource [sic.] to circumstances', in the present case 'there would be no reason to consider' the pre-contractual negotiations relied on by J & D Consortium.[72] Israfoods adds that, in any event, the communications in May 2014 relied upon 'would not seem to indicate any sort of aspiration'.[73]
89 Israfoods also observes that while J & D Consortium has not provided any expert evidence to support its asserted business efficacy defence, 'Dr Baris' advice would tend to indicate that there is no "usual practice" in Israel, and that the outcome instead depends on the nature of the obligation contained in the contract'.[74]
90 Counsel accepted that if the Court does not uphold Israfoods' submission that the wording of the obligations in the Distribution Agreement is clear and that there is no ambiguity as to their proper construction, and instead would permit evidence of surrounding circumstances to be introduced, then it may not be appropriate for summary judgment to be granted.[75]
91 At the commencement of the hearing, I granted Mr Joannou leave to represent J & D Consortium for the purposes of advancing its defence. Mr Joannou primarily relied on his affidavit to outline J & D Consortium's case. He commenced by summarising the gist of the pre-contractual negotiations relied upon by J & D Consortium as informing the proper construction of the Distribution Agreement, and in particular the notions of 'sales targets' and 'objectives'. Mr Joannou submitted that because the expert, Dr Baris, was not privy to any of the communications that took place between the parties prior to the signing of the Distribution Agreement, 'he has no context' and in those circumstances, J & D Consortium 'should be able to cross-examine him to ask him'[76] and be able to question him rather than have the Court 'just take Dr Baris' report at face value'.[77]
92 Mr Joannou noted that Dr Baris acknowledges at the outset of his report that the rules for interpreting contracts under Israeli law, and in particular s 25 of the Contract Law (General Section) 1973, require the contract to be interpreted 'in accordance with the presumed intention of the parties as understood from the contract and the circumstances of the matter'. Mr Joannou also notes that there are provisions of the Distribution Agreement, such as the definition of 'Sales Targets' in cl 1, that are not referred to by Dr Baris in his report.
93 Mr Joannou confirmed that J & D Consortium is relying on the pre-contractual negotiations which it says informs what the parties intended the Distribution Agreement to mean, and is seeking to have the matter determined at a trial 'so that the evidence can be tested' and it can 'get some justice'.[78] He concluded by summarising the position of J & D Consortium, as follows:[79]
...Well, I think that if we are able to not only cross-examine the expert report - the expert witness - but also have our - submit our own evidence, you know, on the stand - that we do have a prospect for success, Your Honour. And that we should be able to have that opportunity.
94 The hearing of the summary judgment application has served to confirm that the proper construction of the Distribution Agreement lies at the heart of this matter and is central to its resolution.
95 Israfoods contends that the Distribution Agreement is to be interpreted according to its plain language, and that the meaning and effect of the obligations imposed on J & D Consortium is clear. In effect, Israfoods says that in the event J & D Consortium did not, within 12 months of entering into the Distribution Agreement, place orders sufficient to achieve the 'minimum Sales Targets' for Israfoods' product (in the amount of USD $1,032,000) then J & D Consortium was liable to pay damages or compensation to Israfoods to be assessed by reference to the 'lost profits' in the amount of USD $1,032,000 or thereabouts.
96 J & D Consortium disputes that construction. It contends that the 'Sales Targets' set out in the Distribution Agreement were expressed as 'targets' or 'objectives', and when viewed in the context of the pre-contractual negotiations that took place between the parties, the 'minimum Sales Target' referred to in clause 4(b) was 'aspirational' or 'indicative only' and 'did not impose any legal obligation upon [J & D Consortium] to actually achieve the minimum Sales Targets in a manner that enables [Israfoods] to claim for any amount representing any loss of bargain'. Further, J & D Consortium says that such a construction conforms with the 'usual business practice in the distribution industry', and were the Distribution Agreement to be construed otherwise, and in the manner contended for by Israfoods, the Distribution Agreement would lack business efficacy and would be unworkable or absurd.
97 The fact that the parties have agreed that the Distribution Agreement is to be 'construed under and governed by the laws of the State of Israel' adds another layer of complexity to the construction exercise.
98 In the present case, the rival constructions, and in particular the defences raised by J & D Consortium, fall to be considered and evaluated by the Court upon a full consideration of the provisions of the Distribution Agreement, and a sound understanding of the relevant principles of Israeli contract law. In his report, Dr Baris has set out the principles of Israeli law that are relevant to the construction exercise and to the assessment of damages. In doing so, however, he acknowledges that following the amendments made to s 25(a) of the Contract Law (General Section) 1973 in 2011, '[s]cholars have continued to debate whether the amended clause has reinforced the Aprofim decision, or restored the primacy of literal construction of contracts'[80] and that the majority decision in National Insurance Institute v Sahar 'retained the primacy of the subjective intent of the contracting parties, while emphasizing the central significance, but not exclusivity, of the contract's language in determining the mutual intent.'[81] In those circumstances, it is important that J & D Consortium has an opportunity to test the evidence given by Dr Baris and the views he expresses.
99 On the material before the Court, I am not satisfied that the defence advanced by J & D Consortium in this case has no real prospect of success. The defence is one that can only properly be evaluated at trial, and there is a real risk that the Court would do a serious injustice to the defendant by giving summary judgment against it. Even if it were otherwise, and the prospects of its defence succeeding were viewed as weak, I am satisfied that its defence should not be dismissed summarily because it is not in the interests of justice to do so and the dispute is of such a nature that only a full hearing on the merits is appropriate.
100 I will hear from the parties as to the appropriate form of orders.
[1] Discussed below at paragraphs 52 to 60.
[2] Distribution Agreement, clause 20.1.
[3] Defined in Schedule B to the Distribution Agreement.
[4] See exhibit 'MP-1' to the affidavit of Manuel Puyol affirmed 22 March 2019 ('Puyol affidavit') (witness outline of Mr Yehuda Deutsch), at [4].
[5] According to the 'Price List' in Schedule B, $1.72 was the price per box of 20 sachets of product.
[6] Plaintiff's statement of claim filed on 13 October 2015, [8].
[8] Plaintiff's statement of claim filed on 13 October 2015, [13]-[14].
[10] See Israfoods' outline of submissions on summary judgment, at [9].
[11] Defendant's amended defence filed on 7 January 2016, [30].
[14] Defendant's amended defence filed on 7 January 2016, [7].
[17] Defendant's amended defence filed on 7 January 2016, [4A].
[24] Pursuant to r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules').
[25] Transcript 05/04/19, at lines 10-12 (Mr Joannou).
[27] [2018] VSC 301 at [19]- [28].
[29] Ibid, 40 [35] (per Warren CJ and Nettle JA, Neave JA agreeing in part (at 42 [40]-[42])).
[30] Rule 22.03 of the Rules.
[31] (2009) 29 VR 213; [2009] VSCA 288 ('Hausman v Abigroup').
[33] See footnote 13 in the reasons of the Court of Appeal in Hausman v Abigroup, where it was stated: 'Whether there is in fact such a burden upon a plaintiff, once the prerequisites for summary judgment have been satisfied, is a difficult question. Rule [22.05] requires a defendant, who is the subject of an application, in proper form, for summary judgment, to "show cause" why such judgment should not be granted. It may be that this imposes upon a defendant an evidential burden, or something akin thereto'.
[34] Hausman v Abigroup, 225-226 [62]-[65] (citations omitted).
[35] Innovateq Australia Pty Ltd v Barnes [2016] VSC 618, [11] (Ierodiaconou AsJ), referring to Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163 and to Portbury Development Pty Ltd v Ottedin Investments Pty Ltd [2012] VSC 490.
[36] See Amcor Ltd v Peter J Ramsay & Associates Pty Ltd [2018] VSC 75, [72]-[73] (Kennedy J); Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2011] VSC 563, [32]-[34] (Randall AsJ) applying APN Funds Management Ltd v Australian Property Investments Strategic Pty Ltd [2011] VSC 555, [11] (Bell J).
[45] [2011] VSC 555, [11].
[48] Ibid, [73]-[74] (citations omitted).
[50] See, for e.g., 'the Defendant is indebted to the Plaintiff in the minimum sales target for the Products in the sum of $1,032,000.00 USD' (at [14]), 'the Defendants [sic.] have failed and refused to pay to the Plaintiff the sum of $1,032,000.00 USD' (at [15]), and '[t]he Defendants [sic.] remain indebted to the Plaintiff in the sum of $1,032,000.00 USD' (at [16]).
[53] Puyol affidavit, at [75]-[79].
[54] Mr Puyol refers to him as 'Dr Besser' rather than 'Dr Baris'.
[55] Puyol affidavit, at [80]-[84].
[56] Expert report of Dr Michael Baris filed on 13 November 2017 ('Report of Dr Baris'), CB C130-131.
[63] Ibid. Dr Baris notes that decision in Aprofim was later upheld in Vegetable Growers' Association v State of Israel 61(2) PD 1681 (2006).
[66] Ibid, CB C134 (emphasis added in bold).
[68] In his affidavit, Mr Joannou exhibited outlines of evidence from his father, John Joannou, and himself, together with an email dated 1 May 2013 that is relied upon as pre-contractual correspondence that informs the proper construction of the Distribution Agreement.
[69] See the Joannou affidavit, at [10(d)].
[70] Israfoods' outline of submissions, at [36].
[73] Israfoods' outline of submissions, at [43].
[75] Transcript 29/04/2019, at p. 69 (Mr Silver).
[78] Transcript 29/04/2019, at p. 76 (Mr Joannou).
Israfoods (2006) Ltd
J & D Consortium Pty Ltd [2019] VSC 323
(2013) 42 VR 27
(2009) 29 VR 213
(1964) 112 CLR 125
(2011) 34 VR 584
(2011) 35 VR 98