Major Engineering Pty Ltd v Timelink Pacific Pty Ltd (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3741 of 2008

MAJOR ENGINEERING PTY LTD (ACN 005 432 391)
	Appellant
v
TIMELINK PACIFIC PTY LTD (ACN 063 714 303) (NO 2)	Respondent

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JUDGES:	ASHLEY, REDLICH and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 and 24 October 2008
DATE OF JUDGMENT:	30 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 83

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CONTRACT – Contract for supply of hydraulic cylinders for canting keel of racing yacht capable of withstanding maximum static force of 262 kN – Where finding of breach of contract by supplier overturned on appeal – Remitted question – Whether finding that cylinders failed at static force of not more than 262 kN open on evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B N Caine SC	Kalus Kenny Lawyers
Mr A Herskope
Mr D B Clough
For the Respondent	Mr M F Wheelahan SC	Vadarlis & Associates
Mr J A F Twigg

ASHLEY JA:

1. I have had the advantage of reading the reasons for judgment of Dodds-Streeton JA in draft.  For the reasons which follow, I agree with her Honour that the appeal should be allowed. 

1. The contractual terms found by the learned trial judge were that the cylinders –

   (b)would have a working capacity to withstand a compression force of up to 262 kN in ocean racing conditions;

   (c)would be designed and supplied so that the piston rods would not buckle or fail under compression when they were subjected to a working compression force of up to 262 kN in ocean racing conditions;

2. The meaning of those terms was affected by two considerations: Mr Jones’ email to Mr Petty of 4 June 2002; and the fact that 262 kN was calculated by reference to the position at which the cylinder assemblies were most vulnerable –19° cant. 

1. As to the first of those matters, in his email of 4 June Mr Jones referred to ‘the maximum static loads (i.e. in the locked condition) shared by the two cylinders’.  The load figures were later increased; but the concept of ‘maximum static loads’ remained. 

1. The meanings of ‘static load’, ‘maximum static load’ and ‘static forces’ were addressed by a number of the witnesses.  Mr Jones said that ‘static load’ meant ‘if the thing is just simply sitting there, it would be the steady load under those conditions’.  Professor Joubert contrasted ‘the steady load’ on a piston with ‘suddenly imposed loads,’ and ‘slamming’.  Dr Keays described the term ‘static load’ as ambiguous – it could be an actual load or an equivalent static load to a dynamic situation.  In the present case he took it to be referring to a design load.  Dr Baigent gave evidence that he understood the ‘maximum static load’ to be the ‘worst loading condition calculated’.

1. In light of the evidence which I have just mentioned, reference to ‘a compression force of up to 262 kN in ocean racing conditions’ and ‘a working compression force of up to 262 kN in ocean racing conditions’…