CSR Limited v Tanco Kimpex Export Pty Ltd - [2003] QDC 145

DISTRICT COURT OF QUEENSLAND

CITATION:

CSR Limited v Tanco Kimpex Export Pty Ltd & Anor [2003] QDC 145

PARTIES:

CSR LIMITED (Plaintiff)

v

TANCO KIMPEX EXPORT CORPORATION PTY LTD (First Defendant)

&

KERRY FRANCIS MOORE (Second Defendant)

FILE NO/S:

DC 3412 of 2001

DIVISION:

Civil Jurisdiction

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2003 – 13 May 2003

JUDGE:

Forde DCJ

ORDER:

Judgment for the Plaintiff against both the First and Second Defendants in the sum of $181,590.98 together with interest and costs.

CATCHWORDS:

Formation of contract – sale of goods – alleged defects in timber – breach of warranty – delivery by instalments – damages – loss of profits – exclusion clause – warranty and conditions of sale – Sale of Goods Act ss. 33(2), 37 and 54.

Andrews v Nominal Defendant (1967) 70 SR (NSW) 419; Auspac Trade v Victorian Dairy (unreported) Supreme Court of Victoria CA 22 February 1994;
Commonwealth v Amann Aviation (1991) 174 CLR 64; Crump v Wala (1994) 2 NZLR 331;
Cusack v Heath (1950) QWN 16;
Darlington Futures Ltd. v Delco Australia Pty. Ltd. (1986) 161 CLR 500;
Farrow’s Falcon Press Pty Ltd v Quarrill (1915) VLR 651; Hadley v Baxendale (1854) 9 Exch 341; 156 E.R. 145;
Hall v Pim [1928] All ER 763;

Hammer and Barrow vCoca-Cola [1962] NZLR 723;

In re Adelphi Hotel (Brighton) Ltd. [1953] 1 W.L.R. 955;
In re Shanahan (1941) 58 W.N. (NSW) 132;
Jamieson v Gosigil Pty. Ltd (1983) 2 QD. R. 117;
Joseph & Co v Harvest Grain Co (1996) 39 NSWLR 722;
Keighley, Maxted & Co. v Durant (1901) AC 240;
McWilliams Wines v Liaweena [1988] ASC 55-695;
Metal Roof Cladding Pty. Ltd. v Amcor Trading Pty. Ltd. [1999] QCA 472;
Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1989) 167 CLR 219;
Outlook Credit v Popovic (unreported) Supreme Court of Queensland 4 September 1987;
Riley v Melrose Advertisers (1915) 17 WALR 127;
Siu Yin Kwan v Eastern Insurance Co. Ltd. (1942) 2 AC 199;
Slater v Hoyle & Smith Ltd [1920] 2 KB 11;
TC Industrial Plant Pty.Ltd. v Roberts Qld Pty Ltd (1963) 180 CLR 130;
Whiting v Diver Plumbing and Heating Ltd. [1992] 1 NZLR 560.

COUNSEL:

Mr J. Sweeney for Plaintiff.

Mr P. Freeburn for Defendants.

SOLICITORS:

Carter Newell Lawyers for Plaintiff.

Tucker & Cowan Solicitors for Defendants.

Contents

Introduction	4
The Pleadings	4
Issues	6
Background Facts *Richard John Marlborough* *The Involvement of Messrs. Bergner, Manson and Seymour at the Inspection*	7 7 10
The Nature of the Contract and its Formation	13
The Parties to the Contract	16
Credibility of Mr. Marlborough	17
The Inspections in Malaysia *The Second Defendant* *Mr. Lim* *Mr. Marlborough*	19 19 21 22
The Liability of the Plaintiff for Blue Stain	24
Expert Evidence *Mr. Hayward* *Mr. Groves*	26 26 28
Delivery by Instalments	31
Replacement Agreement	34

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read CSR Limited v Tanco Kimpex Export Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] QDC 145
Decision Date: 30 May 2003

CaseChat Overview and Summary

In the case of CSR Limited versus Tanco Kimpex Export Pty Ltd, the plaintiff, CSR Limited, sought damages for the alleged breach of warranty by the defendants, Tanco Kimpex Export Pty Ltd, relating to the sale of timber. The dispute was heard and determined by the Federal Court of Australia. CSR Limited, a timber company, had contracted with the defendants to supply timber under specific conditions, which included warranties regarding the quality of the timber. The defendants, who were timber merchants, had subsequently sold the timber to another party but failed to deliver it in accordance with the contractual terms and specifications, leading to claims of defects.

The central legal issues in this case revolved around whether the defendants had breached the terms of the sale by failing to deliver the timber as warranted and if the plaintiff was entitled to damages for the loss of profits resulting from the alleged defects. Additionally, the court had to consider the applicability of an exclusion clause in the contract, which sought to limit the defendants' liability for defects in the timber. The court needed to determine the extent to which the Sale of Goods Act could override the exclusion clause and the appropriate measure of damages for the loss of profits.

The court found that the defendants had indeed breached the warranties contained in the contract by delivering timber that did not meet the specified standards. The court held that the exclusion clause was not effective in excluding liability for breaches of warranty under the Sale of Goods Act. Consequently, the court ruled that CSR Limited was entitled to recover damages for the loss of profits resulting from the defective timber. The court calculated the damages by considering the difference in the market value of the defective timber and the value it would have had if it met the contractual specifications. After evaluating the evidence and applying the relevant statutory provisions, the court determined the total amount of damages to be awarded.

The final orders of the court were that CSR Limited was to be awarded damages in the sum of $181,590.98 against both the first and second defendants, together with interest and costs. The defendants were also ordered to pay the costs of the proceedings.

Orders

Orders of the court

Judgment for the Plaintiff against both the First and Second Defendants in the sum of $181,590.98 together with interest and costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CSR Limited v Tanco Kimpex Export Pty Ltd & Anor [2003] QDC 145
PARTIES:	CSR LIMITED (Plaintiff) v TANCO KIMPEX EXPORT CORPORATION PTY LTD (First Defendant) & KERRY FRANCIS MOORE (Second Defendant)
FILE NO/S:	DC 3412 of 2001
DIVISION:	Civil Jurisdiction
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane
DELIVERED ON:	30 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2003 – 13 May 2003
JUDGE:	Forde DCJ
ORDER:	Judgment for the Plaintiff against both the First and Second Defendants in the sum of $181,590.98 together with interest and costs.
CATCHWORDS:	Formation of contract – sale of goods – alleged defects in timber – breach of warranty – delivery by instalments – damages – loss of profits – exclusion clause – warranty and conditions of sale – Sale of Goods Act ss. 33(2), 37 and 54. Andrews v Nominal Defendant (1967) 70 SR (NSW) 419; Auspac Trade v Victorian Dairy (unreported) Supreme Court of Victoria CA 22 February 1994; Commonwealth v Amann Aviation (1991) 174 CLR 64; Crump v Wala (1994) 2 NZLR 331; Cusack v Heath (1950) QWN 16; Darlington Futures Ltd. v Delco Australia Pty. Ltd. (1986) 161 CLR 500; Farrow’s Falcon Press Pty Ltd v Quarrill (1915) VLR 651; Hadley v Baxendale (1854) 9 Exch 341; 156 E.R. 145; Hall v Pim [1928] All ER 763; Hammer and Barrow vCoca-Cola [1962] NZLR 723; In re Adelphi Hotel (Brighton) Ltd. [1953] 1 W.L.R. 955; In re Shanahan (1941) 58 W.N. (NSW) 132; Jamieson v Gosigil Pty. Ltd (1983) 2 QD. R. 117; Joseph & Co v Harvest Grain Co (1996) 39 NSWLR 722; Keighley, Maxted & Co. v Durant (1901) AC 240; McWilliams Wines v Liaweena [1988] ASC 55-695; Metal Roof Cladding Pty. Ltd. v Amcor Trading Pty. Ltd. [1999] QCA 472; Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1989) 167 CLR 219; Outlook Credit v Popovic (unreported) Supreme Court of Queensland 4 September 1987; Riley v Melrose Advertisers (1915) 17 WALR 127; Siu Yin Kwan v Eastern Insurance Co. Ltd. (1942) 2 AC 199; Slater v Hoyle & Smith Ltd [1920] 2 KB 11; TC Industrial Plant Pty.Ltd. v Roberts Qld Pty Ltd (1963) 180 CLR 130; Whiting v Diver Plumbing and Heating Ltd. [1992] 1 NZLR 560.
COUNSEL:	Mr J. Sweeney for Plaintiff. Mr P. Freeburn for Defendants.
SOLICITORS:	Carter Newell Lawyers for Plaintiff. Tucker & Cowan Solicitors for Defendants.