Ringstad v Gollin and Company Pty Ltd - [1924] HCA 57

GOLLIN &COMPANY PROPRIETARY

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Contract-Construction-Sale of goods-Shipment in monthly instalments-Contract

subject to war, &., causing delay-Postponement of delivery-Long delay- Frustration of contract-Cancellation of contract-Enemy Contracts Annulment Act 1915 (Cth.) (No. 11 of 1915), sec. 4 - Enemy Contracts Annulment Act 1915 (N.S.W.) (No. 24 of 1915), sec. 4.

By a contract in writing, made in March 1916, the defendant sold to the plaintiff a certain quantity of carbide of calcium as to which it was agreed that shipment should be from a continental port in six approximately equal monthly parcels commencing one month after the completion of a prior contract between the same parties. The contract contained the following provisions: " The above sale is subject to strikes, floods, war, accidents, fire, failure of manufacturers to deliver, non-receipt, non-delivery or mistakes in cables, and/or other contingencies causing delay or non-shipment. Vendors under this contract do not guarantee shipments as above owing to freight or other difficulties beyond their control, but will do their utmost to ship in accordance with shipments stated." The prior contract was completed in May 1917. Before any delivery had been made under the later contract the defendant in April 1919 gave a notice to the plaintiff purporting to cancel the contract, In an action brought in 1922 by the plaintiff against the defendant to recover damages for breach of the later contract by failure to deliver the carbide,

Held, that, on the construction of the contract, notwithstanding the happening of any of the events mentioned in the contract as causing delay or non-shipment, the defendant was bound to ship the carbide in six monthly parcels as and when those causes should cease to operate.

35 CLR 304

Held, also, by Knox C.J. and Starke J., that the long delay in shipment caused by the War did not frustrate the commercial object of the contract and SO put an end to it.

By Isaacs J.: The test whether the delay put an end to the contract was whether it destroyed the identity of the supply of carbide when resumed with that when interrupted.

Held, also, that sec. 4 of the Enemy Contracts Annulment Act 1915 did not By Knox C.J., Isaacs and Starke JJ., on the ground that the contract was not suspended by operation of law or by the terms of the contract nor could it be suspended by act of the defendant

By Isaacs J., on the ground also, that the section did not apply to a contract Decision of the Supreme Court of New South Wales (Full Court), reversed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court of New South Wales, by writ dated 12th July 1922, by Harold Syr Ringstad (trading as Caning Bales &Co.) against Gollin &Co. Pty. Ltd., in which the plaintiff sought (so far as is material) to recover damages for the breach by the defendant…

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.

Continue reading Ringstad v Gollin and Company Pty Ltd

Details

AGLC: Ringstad v Gollin and Company Pty Ltd [1924] HCA 57
Case: [1924] HCA 57
Decision Date: 19 December 1924

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning a contract for the sale of carbide of calcium. The appellant, Mr. Ringstad, had entered into a written contract with the respondent, Gollin & Company Pty Ltd, in March 1916 for the sale of 75 tons of carbide, to be shipped in six monthly instalments commencing one month after the completion of a prior contract. This later contract contained a clause stating it was subject to various contingencies, including war, that might cause delay or non-shipment, and that the vendors did not guarantee shipments due to difficulties beyond their control but would endeavour to ship as agreed. The prior contract was completed in May 1917, but no deliveries were made under the 1916 contract before the respondent purported to cancel it in April 1919. Mr. Ringstad subsequently sued for damages for breach of contract.

The central legal issues before the High Court were: first, the proper construction of the contract, particularly the interplay between the stipulated shipment schedule and the clause excusing performance due to specified contingencies; second, whether the prolonged delay in shipment caused by the war frustrated the commercial object of the contract; and third, whether Section 4 of the Enemy Contracts Annulment Act 1915 (Cth and NSW) applied to terminate the contract. The Supreme Court had entered a verdict for the defendant, finding that the contract was terminated under the Enemy Contracts Annulment Act.

The High Court, by majority, found that the contract was not terminated by the Enemy Contracts Annulment Act. The majority reasoned that the Act did not apply to contracts made after the commencement of the war, or alternatively, that the contract's performance was not "suspended" in the manner contemplated by the Act. On the construction of the contract, the Court held that the clause excusing delay due to war and other contingencies did not abrogate the contract but rather postponed the obligation to ship until those causes ceased to operate. Furthermore, the Court determined that the extensive delay caused by the war did not frustrate the commercial purpose of the contract, as the goods were a standard commodity and the contract's commencement and duration were already subject to significant uncertainty.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and restored the verdict for the plaintiff, Mr. Ringstad, awarding him damages of £393 15s. The respondent was ordered to pay the costs of the appeal in both the High Court and the Supreme Court.

Orders