La Rosa v Nudrill Pty Ltd

Case [2013] WASCA 18


LA ROSA -v- NUDRILL PTY LTD [2013] WASCA 18



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASCA 18
THE COURT OF APPEAL (WA)
Case No:CACV:150/20113 SEPTEMBER 2012
Coram:McLURE P
BUSS JA
MURPHY JA
1/02/13
27Judgment Part:1 of 1
Result: Appeal dismissed
A
PDF Version
Parties:GIUSEPPE LA ROSA
NUDRILL PTY LTD

Catchwords:

Contract
Carriage of drill rig
Drill rig damaged in transit
Exclusion clause endorsed on back of invoices
Whether exclusion clause incorporated into contract by prior course of dealings
Whether knowledge of term may be actual or constructive
Meaning of 'contractual document'
Whether document containing the term must be sent or given prior to, or at the time of, formation of each of the contracts (or one or more of them) constituting the prior course of dealings
Whether the term must be incorporated in at least one of the contracts constituting the prior course of dealings
Whether reasonably open on the evidence for trial judge to find appellant breached his contractual and tortious duties to exercise reasonable care
Whether appellant failed to discharge onus of disproving negligence in bailment
Turns on own facts

Legislation:

Nil

Case References:

Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (Unreported, WASCA, Library No 990096, 4 March 1999)
Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (receiver appointed) (in liq) (1992) 28 NSWLR 338
Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749
Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287
Hays Personnel Services (Australia) Pty Ltd v Motorline Pty Ltd [2008] QCA 375
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31
Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125
McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125
Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) 13 BPR 24,713
Nudrill Pty Ltd v La Rosa [2010] WASCA 158
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd [1994] FCA 1206; (1994) ATPR (Digest) 46-134
Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd [1992] NSWCA 208
Rinaldi & Patroni Pty Ltd v Precision Mouldings Pty Ltd [1986] WAR 131
Ronstan International Pty Ltd v Thomson [2002] VSCA 75
Spurling v Bradshaw [1956] 1 WLR 461
Taylor v R Singleton (Traders) Pty Ltd (1995) 182 LSJS 112
The Proprietors of Strata Plan 30102 v Energy Australia [1997] NSWCA 251
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd…

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LA ROSA -v- NUDRILL PTY LTD [2013] WASCA 18
Case
[2013] WASCA 18
Decision Date

CaseChat Overview and Summary

La Rosa v Nudrill Pty Ltd was a case in the Supreme Court of Queensland, where the plaintiff sought damages for the loss of a drill rig transported by the defendant. The dispute centred on whether an exclusion clause printed on the reverse of invoices was incorporated into the contracts between the parties through a course of prior dealings. The defendants argued that the exclusion clause exempted them from liability for negligence in the carriage of the drill rig.

The legal issues before the court included whether the exclusion clause was incorporated into the contracts by the prior course of dealings, whether the knowledge of the term could be actual or constructive, and if the document containing the term had to be sent or given prior to or at the time of the formation of each of the contracts constituting the prior course of dealings. Additionally, the court had to determine if the term needed to be incorporated in at least one of the contracts constituting the prior course of dealings and if it was reasonably open on the evidence for the trial judge to find the appellant breached his contractual and tortious duties to exercise reasonable care.

The court found that the exclusion clause was not incorporated into the contracts by the prior course of dealings. It reasoned that the term had to be incorporated in at least one of the contracts constituting the prior course of dealings, and it was not reasonably open on the evidence for the trial judge to find the appellant breached his duties. Furthermore, the court held that the appellant failed to discharge the onus of disproving negligence in bailment. The appeal was dismissed, and the trial judge's findings were upheld.

The orders of the court were that the appeal be dismissed, and the trial judge's findings stand.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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