Lubrano v Gollin & Co Pty Ltd - [1919] HCA 61

GOLLIN AND COMPANY PROPRIETARY

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Contract-ConstructionSale of goods-Shipment in specified months-Seller not

to be responsible for delay caused by war, &c-Obligation of buyer to accept goods shipped out of time-Waiver--Acceptance of portion-Demurrer

The plaintiff by his declaration alleged that the defendant had agreed to buy from the plaintiff certain goods-" shipment in April May and/or June

from Italy to Australia

the plaintiff not to be held responsible for delay caused by war strike wreckage or other unavoidable

Held, that the effect of the clause which provided that the plaintiff should not be held responsible for delay caused by war, &., was merely to relieve the plaintiff from liability to the defendant for breach of the contract if the plaintiff was prevented by war, &., from shipping the goods within the period specified, and did not require the defendant under any circumstances to accept goods which were not shipped within that period.

By the declaration it was also alleged that the defendant accepted portion of the goods notwithstanding that that portion had not been shipped during the prescribed period, as the defendant before accepting that portion well

Held, that the facts alleged did not amount to a waiver by the defendant of the condition of shipment during the prescribed period in respect of the rest of the goods.

Observations as to what facts can be regarded on a demurrer.

27 CLR 114

Decision of the Supreme Court of New South Wales: Lubrano v. Gollin &Co., 19 S.R. (N.S.W.), 214, affirmed.

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court by Frank Lubrano, trading as Lubrano &Ferrari, against Gollin &Co. Proprietary Ltd., the plaintiff by the first count of his declaration alleged that "it was agreed by and between the plaintiff and the defendant that subject to cable confirmation the plaintiff should sell to the defen- dant and the defendant should buy from the plaintiff ten tons of tartaric acid powder at 3s. 31d. per pound c.i.f. and e. including war risk freight based on 190s. per ton measurement and insurance based on war risk £5 5s. per £100 and marine insurance w.p.a.- shipment in April May and/or June 1918 by direct steamer from Italy to Australia and in the event of there being no direct steamer from Italy to Australia the said goods to be transhipped either at Port Said or Singapore for Sydney provided shipment is made from Italy via the Suez Canal the plaintiff not to be held responsible for delay caused by war strike wreckage or other unavoidable causes payment cash against documents or shipping delivery order and the plaintiff did receive cable confirmation respecting the said agree- ment And the plaintiff entered upon the performance of the said agreement and there being no direct steamer from Italy to Australia duly shipped the said goods from Italy via the Suez Canal and duly transhipped the said goods at…

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 Lubrano v Gollin & Co 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: [1919] HCA 61
Decision Date: 17 November 1919

CaseChat Overview and Summary

The case of *Lubrano v Gollin & Co Pty Ltd* involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The plaintiff, Mr. Lubrano, had entered into an agreement with the defendant, Gollin & Co Pty Ltd, for the sale of tartaric acid. The core of the dispute concerned the shipment of these goods, which were to be shipped from Italy to Australia in April, May, and/or June 1918. The contract included a clause stating the plaintiff would not be responsible for delays caused by war, strikes, or other unavoidable causes. The plaintiff alleged that the defendant had breached the contract by refusing to accept the balance of the goods, despite the delay in shipment being attributable to war and other unavoidable causes.

The legal issues before the court were primarily twofold. Firstly, the court had to determine the proper construction of the clause relating to delays caused by war or other unavoidable causes. Specifically, it needed to ascertain whether this clause merely excused the plaintiff from liability for damages due to delayed shipment, or if it also obliged the defendant to accept goods shipped outside the specified months. Secondly, the court was required to consider whether the defendant's acceptance of a portion of the goods, despite the delay, constituted a waiver of their right to reject the remaining goods that were also shipped late.

The High Court, affirming the decision of the Supreme Court, held that the delay clause served only to relieve the plaintiff from liability for breach of contract if performance within the specified period was prevented by the excepted causes. It did not, however, compel the defendant to accept goods that were not shipped within the contractual timeframe. The court reasoned that the natural meaning of the contract, read as a whole, indicated that the specified shipment months were a condition of the agreement, and the delay clause was a protective provision against liability for non-performance within that period, not a mechanism to extend the time for performance indefinitely. Furthermore, the court found that the facts alleged in the declaration did not sufficiently establish a waiver by the defendant of the condition of timely shipment in respect of the remaining goods. The acceptance of a portion of the goods, with knowledge of the delay pertaining to that portion, was not deemed to imply a waiver regarding the balance, particularly as there was no allegation that the defendant knew the entire consignment was delayed.

Consequently, the High Court dismissed the appeal with costs. The court concluded that the demurrers filed by the defendant were valid, as the plaintiff's declaration did not disclose a cause of action that overcame the defendant's right to reject goods not shipped within the agreed period, nor did it adequately plead a waiver of this right.

Orders