Lubrano v Gollin & Co Pty Ltd

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.