Cohen & Co v Ockerby & Co Ltd

The parties to this appeal were Maurice Cohen & Co, merchants from Egypt, and Ockerby & Co Ltd, a Western Australian company. The dispute arose from two written contracts for the sale of flour, dated October 1915, which stipulated delivery f.o.b. Fremantle during January 1916. The buyers sought damages for non-delivery, claiming the sellers refused to deliver the flour as contracted. The High Court of Australia heard the appeal from the Supreme Court of Western Australia.

The legal issues before the court were whether the sellers were obligated to deliver the flour to the Bank of Australasia in Fremantle as demanded by the buyers, and if not, whether the buyers had fulfilled their contractual obligations regarding the establishment of local credit to enable payment. The court also considered whether the buyers' demand for delivery to the bank constituted a waiver of the f.o.b. term and whether the sellers' refusal to comply with this demand absolved the buyers from their own obligations.

The court reasoned that the contracts clearly stipulated delivery f.o.b. Fremantle, meaning the sellers' obligation was to place the flour on board a ship provided by the buyers. The buyers' demand for delivery to the bank at Fremantle against payment was a departure from this agreed term. Furthermore, even if the sellers' refusal to deliver to the bank was considered a breach, the buyers had failed to establish the required local credit for payment, nor had they demonstrated readiness and willingness to do so. The court applied the principle that a party suing for breach must show they were ready and willing to perform their part of the contract, even if performance was excused by the other party's prior refusal.

The High Court affirmed the decision of the Supreme Court of Western Australia, holding that the sellers were not bound to make the substituted delivery to the bank. The court found that the buyers had not established a local credit appropriate to the altered delivery, nor had they shown they were ready and willing to do so, and therefore they were not entitled to sue for breach of contract. The appeal was dismissed.