Fashion stakes high as Ellery heads to court over Myer breach
Melbourne's most fashionable court case starts on Monday morning with the first of a three-day trial between department store Myer and Sydney designer Kym Ellery.
Myer is seeking an injunction preventing Ms Ellery from supplying any more clothing from her Ellery and L'America labels to its rival David Jones, and damages against Ms Ellery for breaching an exclusivity contract and for failing to deliver an order for Myer's 2013 autumn-winter collection.
However the size of damages will not be known until after Justice Michael Sifiris, of the Victorian Supreme Court, decides whether Ms Ellery was liable.
Myer withdrew in January a request for an interlocutory injunction that would have prevented Ellery clothing appearing in David Jones' fashion week.
It is now seeking a final injunction preventing Ms Ellery from supplying David Jones until her three-year exclusivity contract with Myer ends late next year.
Ms Ellery's barrister, Charles Shaw, has previously told the court the contract with Myer was excessively restrictive because it "does not oblige Myer to buy anything from the defendant" but prevented his client from supplying David Jones.
Meanwhile, court documents reveal Ms Ellery first met with David Jones staff on August 16 last year, a month before Myer placed the autumn 2013 order that Ms Ellery failed to fulfil.
Documents also reveal that David Jones sent her an exclusivity letter on November 7, which she signed two days later.
However, Myer did not learn she had signed a contract with David Jones and would be a key part of its 2013 collection until December 2.
An affidavit by the executive general of merchandise at Myer, Adam Stapleton, says Ms Ellery's business adviser told him "the financial consequences for breaching the contract with David Jones would be significantly greater than the consequences for breaching the contract with Myer" because she would "need to reimburse David Jones for the catalogues that had already been printed".
Ms Ellery and her adviser also dispute the value of Myer to her label, claiming Ellery was only stocked in four of Myer's 67 stores.