Myer designer-garment trial begins
Myer is seeking an injunction preventing Ellery from supplying any more clothing from her Ellery Land and L'America labels to its rival David Jones, and damages against 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 would not be known until after Justice Michael Sifiris of the Victorian Supreme Court decides whether Ellery is liable.
Myer withdrew in January a request for an interlocutory injunction that would have prevented Ellery Land clothing appearing in David Jones' fashion week.
It was now seeking a final injunction preventing Ellery from supplying David Jones until her three-year exclusivity contract with Myer ends in late 2014.
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 Ellery first met with David Jones staff on August 16 last year, a month before Myer placed the autumn 2013 order that Ellery failed to fulfil. And 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.
According to an affidavit by executive general manager of merchandise at Myer, Adam Stapleton, Ellery's business adviser told him "the financial consequences for breaching the contract with David Jones would be significantly greater" than with Myer as Ellery would "need to reimburse David Jones" for printed catalogues.
Ellery and her adviser claim Ellery Land was stocked in only four of Myer's 67 stores and that her clothing appeared in Vogue, Harper's Bazaar, Ragtrader and Grazia before she signed a deal with Myer, according to her affidavit.
They claim that stylists for Madonna, Rihanna and Lady Gaga requested Ellery Land clothing. She also disputes the value of providing free dresses for Myer spokeswoman Jennifer Hawkins, saying she had begun invoicing for them.
Frequently Asked Questions about this Article…
The case is a three-day trial in the Victorian Supreme Court where department store Myer is suing Sydney designer Kimberley Ellery. Myer alleges Ellery breached a three-year exclusivity contract by supplying her Ellery Land and L'America labels to rival David Jones and also failed to deliver an order for Myer's 2013 autumn–winter collection.
Myer is seeking a final injunction to stop Ellery from supplying David Jones until her exclusivity contract with Myer ends in late 2014, plus damages for the alleged breach of the exclusivity agreement and for failing to fulfil the 2013 autumn–winter order.
Myer says Ellery supplied her labels to David Jones and did not fulfil an order for Myer's 2013 autumn–winter collection. Court documents show Ellery met David Jones staff in August and signed an exclusivity letter from David Jones in November, matters Myer says breached its exclusivity arrangement.
Ellery's barrister has argued the Myer contract was excessively restrictive because it didn't obligate Myer to buy anything yet prevented her from supplying David Jones. Ellery also says her label was stocked in only four of Myer's 67 stores, had prior press exposure in Vogue and other magazines, and that she had begun invoicing Myer for dresses she provided to Myer's spokeswoman.
According to court documents, Ellery first met David Jones staff on August 16 (before Myer placed its autumn 2013 order). David Jones sent her an exclusivity letter on November 7, which she signed on November 9. Myer did not learn about her David Jones contract until December 2.
No. The article says the size of any damages would not be known until after Justice Michael Sifiris decides whether Ellery is legally liable for breaching the contract.
An injunction is a court order that can prohibit someone from doing something. In this case, a final injunction sought by Myer would prevent Ellery from supplying her Ellery Land clothing to David Jones until her three‑year exclusivity contract with Myer ends in late 2014.
Investors tracking Myer or the retail sector may care because the dispute involves contractual relationships, potential damages and injunctions that affect supplier arrangements. The court case highlights legal and commercial risks around exclusivity deals and fulfilment of retail orders, matters that can influence retailer operations and costs.
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