Nudrill Pty Ltd v La Rosa [No 3] - [2011] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NUDRILL PTY LTD -v- LA ROSA [No 3] [2011] WADC 178

CORAM: KEEN DCJ

HEARD: 1-4 AUGUST 2011

DELIVERED : 1 NOVEMBER 2011

FILE NO/S: CIV 1523 of 2008

BETWEEN: NUDRILL PTY LTD
Plaintiff
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Defendants

Catchwords:

Contract: parties to the contract of carriage and the effect of the Partnership Act 1895 - Incorporation of terms by prior dealings between the parties

Estoppel: whether the plaintiff is estopped from denying the incorporation of terms

Vicarious immunity: whether the defendants can take the benefit of exclusion of liability clause in a contract to which the defendants were strangers

Bailment for reward: whether there was a bailment of goods to the defendants - The bailee's obligations and duty of care

Negligence: whether the defendants or either of them owed the plaintiff a duty of care

Breach: of contract, bailment and duty of care and burden of proof

Standing to sue: whether the plaintiff has a sufficient interest in the goods damaged to sue

Legislation:

Nil

Result:

Judgment for the plaintiff against the first named defendant. Action against the second named defendant dismissed

Representation:

Counsel:

Plaintiff: Mr J Thomson
Defendants: Dr P R MacMillan

Solicitors:

Plaintiff: SRB Legal
Defendants: Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Bridges & Salmon Ltd v The Swan (Owner); Marine Diesel Service (Grimsby) Ltd v The Swan (Owner) (The Swan) [1968] 1 Lloyd's Rep 5
Bryan v Maloney [1995] HCA 17; (1995) 128 ALR 163
Celthene Pty Ltd v WKJ Hauliers Pty Ltd [1981] 1 NSWLR 606
Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (in liq) (1992) 28 NSWLR 338
Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427
Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commonwealth v Verwayen (1990) 170 CLR 394
Elder, Dempster & Co Ltd v Paterson, Zochonis & Co Ltd [1924] AC 522
Herrick v Leonard & Dingley Ltd [1975] 2 NZLR 566
Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749
Legione v Hateley (1983) 152 CLR 406
McCutcheon v David Macbrayne Ltd [1964] 1 WLR 125
Morris v CW Martin & Sons Ltd [1966] 1 QB 716
New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154
Nudrill Pty Ltd v La Rosa [2010] WASCA 158
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Rinaldi & Petroni Pty Ltd v Precision Mouldings Pty Ltd [1986] WAR 131
Roman Catholic Archbishop of Perth v Bishop (Unreported, WASCA, Library No 950470, 7 September 1995)
Scruttons Ltd v Midland Silicones Ltd [1962] AC 446
Sterns Trading Pty Ltd v Shteinman (1988) NSW ConvR 55‑414
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Walton Stores (Interstate) Ltd v Maher (1988) 164…

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.

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Details

Case: [2011] WADC 178
Decision Date: 1 NOVEMBER 2011

CaseChat Overview and Summary

In the case of Nudrill Pty Ltd v La Rosa, the parties were involved in a dispute regarding a contract of carriage and the effect of the Partnership Act 1895. The plaintiff, Nudrill, sought to hold the defendants liable for the loss of goods. The defendants argued that they were not bound by the terms of the contract as they were strangers to it and that the plaintiff was estopped from denying the incorporation of certain terms. The court had to decide whether the terms and conditions endorsed on the invoices were incorporated into the contract, whether the plaintiff was estopped from denying their incorporation, and whether the defendants could benefit from an exclusion of liability clause in a contract to which they were strangers. Furthermore, the court had to consider if there was a bailment of goods to the defendants and whether they owed the plaintiff a duty of care.

The court found that the terms and conditions endorsed on the invoices were not incorporated into the contract between the parties. The court held that there must be evidence of an earlier contract containing the terms that are sought to be incorporated into the present contract. The court relied on the case of Rinaldi, where it was stated that a limiting term in a document such as an invoice is not necessarily implied into subsequent contracts. The court also noted that there was no evidence to show that at any time a contract was preceded by any quotation or other paperwork containing terms intended to form part of a contract then to be formed. The court found that the defendants could not take the benefit of an exclusion of liability clause in a contract to which they were strangers. The court held that there was no evidence to show that the defendants owed the plaintiff a duty of care.

The court found in favour of the defendants and dismissed the plaintiff's claim. The court held that the plaintiff had not established a sufficient interest in the goods damaged to sue. The court found that the plaintiff had not shown that it had a proprietary interest in the goods at the time of the loss, and therefore did not have standing to sue. The court held that the plaintiff had failed to establish a bailment of goods to the defendants and that there was no breach of contract, bailment or duty of care by the defendants. The court dismissed the plaintiff's claim with costs.

Orders

Orders of the court

Full text does not contain this section.

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

The incorporation of terms I find that the terms and conditions endorsed upon the rear of the various invoices comprising exhibits 15, 16 and 17 were not incorporated into the contract made between Mr La Rosa and Nudrill. Mr La Rosa's case is that these invoices spanned a long period of time and Mr Norburn for Nudrill would have had a long acquaintance with them. It is argued that Mr Norburn was evasive about his recollection of having read the terms or not. In my view whether he was evasive on this point or not is irrelevant. Even if he had read the terms, unless and until at least one prior contract had come into existence which contained the terms which are now sought to be incorporated into the present contract those terms are a thing writ in water. I respectfully adopt what was said by Burt CJ in Rinaldi, that you must first find an earlier contract or contracts containing the term. There is no evidence to show that at any time a contract was preceded by any quotation or other paperwork containing terms intended to form part of a contract then to be formed. These terms were merely endorsed on invoices after a contract had been made and performed. I adopt what has been said in Cheshire & Fifoot, that a limiting term in a document such as an invoice is not necessarily implied into subsequent contracts and in this case in view of the absence of any such incorporation in the past cannot be so implied. Mr La Rosa relied on a number of authorities in which it is said that if reasonable notice of a proposed clause has been given and there has been a course of dealing between the parties then a clause may be incorporated into a contract. In Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (Receiver Appointed) (in liq) (1992) 28 NSWLR 338 the issue related to the passing of property and retention of ownership. A clause relating to this was contained in invoices that were sent to the plaintiff. The trial judge found that there was no evidence that the plaintiff was sent a copy of the defendant's terms and conditions for purchase. There had been some discussion between representatives of the parties wherein the defendant said that it did not recognise the Romalpa clause and the plaintiff would have to remove it from its invoices. The defendant's representative was told that he would have to talk to a Mr Gascoigne about this but it appears that this did not happen and there was no further objection to the term or a requirement for variation. The judge held that the regularity of the dealings indicated that in the absence of objection the condition must be taken to have been accepted. To the extent that Chattis would appear to be in conflict with Rinaldi, I am bound by and follow Rinaldi. In any event the two may be distinguished. In Chattis there was a specific discussion about the term. That did not occur in Rinaldi or the present case. Indeed it was conceded in Rinaldi that the appellants did not have actual knowledge of the term. Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427 was also a case where there had been a series of transactions between the parties. The plaintiff sought to incorporate the Standard Trading Conditions of the Institute of Freight Forwarders Ltd (IFF) which incorporation was allowed on appeal. The manner of contracting followed closely the course in the present case with the only document being the invoice which followed the oral order. The invoices carried the notation that the business was transacted under the terms of the IFF a copy of which was available on request; it was not requested. Issues of knowledge of the terms arose but it is not necessary for me to explore them. The Court of Appeal found at (433) that there was a course of dealing in which 11 invoices had been sent giving notice that the business was conducted on the IFF terms. Taylor LJ noted at (433) that for incorporation of terms[i]t is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request' and 'it is not necessary that notice of the conditions should be contained in a contractual document where there has been a course of dealing.