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Amcor v Barnes & Ors [2021] VSCA 6

EQUITY, PRACTICE AND PROCEDURE, EMPLOYMENT, CONTRACT, DAMAGES, ESTOPPEL
Victorian Court of Appeal
Judge(s): 
Ferguson CJ, Beach and Whelan JJA
Parties: 

Amcor Ltd (ACN 000 017 372) & Ors v Barnes, Trevor Mark & Ors; Amcor Ltd (ACN 000 017 372) & Ors v Hodgson, James George & Anor; Hodgson, James George & Anor v Amcor Ltd (ACN 000 017 372) & Ors; Australian Corrugated Box Co P/L (formerly Achilla P/L) (ACN 104 489 581) & Anor v Orora Ltd (formerly Amcor Packaging (Australia) P/L) (ACN 004 275 165) & Anor); Orora Ltd (formerly Amcor Packaging (Australia) P/L) (ACN 004 275 165) & Anor) v Australian Corrugated Box Co P/L (formerly Achilla P/L) (ACN 104 489 581) & Anor

Judgment Date: 
2 February 2021
Catchwords: 

EQUITY - Officers and employees - Fiduciary duty - Breach - Secretly acquiring interest in business sold by employer - Fidelity - Information improperly used - Officer not exercising powers in good faith - Conflict of interest - Knowing assistance - Remedies - Loss not suffered - Gain made - Election - Account of profits - Equitable compensation.

PRACTICE AND PROCEDURE - Appellate review - Approach to appeals by way of rehearing - Court's exercise of powers where satisfied of primary decision-maker's error - Recognition of role of trial judge in fact-finding.

EMPLOYMENT - Contract of employment - Termination - Notice - Payment in lieu - Validity of termination - Termination premised upon payment in lieu - Whether termination required making of payment in lieu.

CONTRACT - Asset Sale Deed - Reciprocal supply and purchase obligations - Construction of purchase obligation - Which entity bound - Implied supply agreement - Existence of - Purported effect - Implied agreement inconsistent with Deed of Accession.

ESTOPPEL - Alternative to implied supply agreement - Whether common assumption gave rise to conventional estoppel - Challenge to 'business as usual' conclusion - Conventional basis for parties' relationship - Whether alleged assumption consistent with Deed of Accession.

CONTRACT - Construction - 'Business as usual' construction - Intention to produce commercial result - Departure from natural and ordinary meaning - Avoiding commercial nonsense.

CONTRACT - Construction - Carve-out - Burden of proof - Which party bore - Whether carve-out composed of separate elements.

DAMAGES - Method of assessing - Entitlement on 'business as usual' construction - Whether particular work included - Whether party entitled to damages based on calculation including all fixed costs - Whether damages ought to be limited to amounts paid to alternative suppliers.

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