Ansell Ltd v Coco

[2004] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:	Ansell Ltd v Coco [2004] QCA 213
PARTIES:	ANSELL LIMITED ACN 004 085 330 (plaintiff/respondent) v SANTO ANTONIO COCO (defendant/appellant)
FILE NO/S:	Appeal No 372 of 2004 DC No 94 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	25 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2004
JUDGES:	McMurdo P, Williams JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs to be assessed on an indemnity basis
CATCHWORDS:	GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – RIGHTS OF SURETY – AGAINST PRINCIPAL DEBTOR – where rubber roller supplied to company under contract between respondent and company – where appellant was director of company and provided guarantee for payment of all debts and monetary liabilities owed to respondent by company – where company had gone into liquidation before litigation was commenced – where respondent claimed for moneys owed under contract – where appellant counter-claimed at trial that company had a claim for breach of warranty against respondent and sought to set off quantum of damages recoverable against appellant’s liability under guarantee – where learned trial judge found that appellant had not established breach of warranty – whether appellant could by way of defence rely on asserted claim by principal debtor against creditor for unliquidated damages for breach of warranty – whether breach of warranty established
CONTRACTS – GENERAL CONCTRACTUAL PRINCIPLES – CONSIDERATION – FAILURE OF CONSIDERATION – where company used roller purchased under contract for 23 days before noticing some malfunction and continued to use roller for 24 to 48 hours after that – where company did not pay amount due under contract – whether total failure of consideration – whether company indebted for amount under contract
(1897) 76 LT 542, cited Cellulose Products Pty Ltd v Truda (1970) 92 WN (NSW) 561, cited Covino v Bandag Manufacturing Pty Ltd [1983] 1 NSWLR 237, cited Indrisie v General Credits Ltd [1985] VR 251, cited
Alcoy and Gandia Railway and Harbour Co v Greenhill considered
COUNSEL:	A N S Skoien for the appellant J A Logan RFD SC, with P A Looney, for the respondent
SOLICITORS:	Gilshenan & Luton for the appellant Forbes Dowling for the respondent

1. McMURDO P: I agree with Williams JA's reasons for concluding that on the evidence the learned primary judge was entitled to find that Mr Coco did not demonstrate that the consideration for the purchase of the recovering of the suction press roll from the respondent wholly failed, nor that the roll failed because of the respondent's breach of warranty.

2. Counsel for Mr Coco, in support of his contentions, emphasised the correspondence between the parties, or those associated with them, after the suction press roll failed. On 24 July 2001, the respondent wrote to the managing director of Softex Industries Pty Ltd ("Softex"), Mr Morris, requesting payment of an account which…