The Ritz Jewellers Pty Ltd v Australian Artimports Pty Ltd - [2001] WASC 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THE RITZ JEWELLERS PTY LTD -v- AUSTRALIAN ARTIMPORTS PTY LTD [2001] WASC 169

CORAM: MASTER BREDMEYER

HEARD: 7 MARCH 2001

DELIVERED : 28 JUNE 2001

FILE NO/S: COR 326 of 2000

MATTER :AUSTRALIAN ARTIMPORTS PTY LTD
(ACN 071 496 887)

BETWEEN: THE RITZ JEWELLERS PTY LTD (ACN 009 076 368)
Plaintiff
AND
AUSTRALIAN ARTIMPORTS PTY LTD (ACN 071 496 887)
Defendant

Catchwords:

Corporations Law - Statutory demand - Whether a genuine dispute - Re‑opening of argument

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr M S Macdonald
Defendant: Mr B P Wheatley

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: Murfett & Co

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

Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407
Smith v New South Wales Bar Association (1992) 176 CLR 256
The Ritz Jewellers Pty Ltd v Australian Artimports Pty Ltd [2001] WASC 51

Case(s) also cited:

Barker v Furlong [1891] 2 Ch 172
Hughes v Hill [1937] SASR 285
Norman v Norman (1992) 6 WAR 372
R v Industrial Court of SA; Ex parte General Motors-Holden Pty Ltd (No 2) (1976) 43 SAIR 1027
Re Harrison's Share Under a Settlement [1955] Ch 260

MASTER BREDMEYER: This is an application by the plaintiff to set aside a statutory demand served by the defendant on the plaintiff for $246,391.75. I heard argument on the application on 20 and 23 February and delivered judgment thereon on 27 February 2001. I published reasons: The Ritz Jewellers Pty Ltd v Australian Artimports Pty Ltd [2001] WASC 51. Since the demand issued in November 2000, $46,429.65 has been paid off the debt. I considered that part of the sum claimed was not due and owing at the time of the demand. I reduced the demand to $70,000 but otherwise dismissed the application. I ordered the plaintiff to pay the defendant's costs of the application (including any reserved costs) on a 75 per cent basis to be taxed if not agreed.
Prior to the extraction of written orders, the plaintiff applied by motion dated 28 February 2001 to re‑open the application limited to the issue of whether the conditions placed on the agreement contained in the letter from the defendant to the plaintiff dated 20 September 2000, were satisfied.
I consider I have power to re‑open the argument. According to Seaman, Civil Procedure in Western Australia, 63.0.9, a Judge can always withdraw, alter or modify an order pronounced by him until it is drawn up, passed or entered. The application may be made by a party or by the Judge on his or her own motion. As a general rule, the discretion to do so will not be exercised to permit a general re‑opening, but the nature of the error or omission determines the nature and extent of the review. Very little will be required to support an application to re‑open to deal with a mathematical error or calculation. The extent of the leave in the case of a factual error will depend on whether it goes to the heart of the matter or to some discrete subsidiary issue: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265. Leave in respect of a matter of law will not be given lightly when the issue ought to be re‑opened was fairly before the court on the first occasion, but it may be appropriate to give it when the application arises from a genuine misunderstanding by which the court has been deprived of the benefit of full submissions on an important point: Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407 at 409, a decision of Anderson J of this Court.
In the earlier judgment I said, at [6], that the plaintiff had selected certain goods (gold chains and other jewellery) for purchase from the defendant in Melbourne in August 2000 and they had orally agreed on certain terms of payment. I also said that the defendant had not, on affidavit, disputed that version of the contract. The defendant says that the oral contract was replaced by a written one set out in a letter of 20 September 2000 from the defendant to the plaintiff, signed by Mr Rogala for the plaintiff on 25 September 2000. I referred to that as the agreement of 20 September. I considered that the oral agreement was replaced by that written agreement and that there was no duress on the plaintiff and that the plaintiff was bound by it. Mr Rogala, at the bottom of the letter, said that he agreed and confirmed the arrangements specified in it. He added his signature. He also added at the bottom of the letter these words:
"PROVIDING that the stock be invoiced at the prices agreed and supplied by you to me while in Melbourne."
I then considered whether those two conditions were met. At [9] I said I was satisfied that the first condition was met; the goods were re‑invoiced at the agreed prices.
I then considered the second condition - whether the goods ordered in Melbourne were ready to be collected. I said, in summary, that that condition was breached but that it was not a serious breach, that the plaintiff had got most of the stock it ordered and was not able to say what it did not get. I consider the breach of that condition was minor and it did not justify a voiding of the contract. I repeat here what I said at [10] to [14] of my earlier judgment:
"10    The second condition was breached. The goods not yet sent were not available in Melbourne to be picked up. Having said that, when Mr Rogala wrote that condition on 25 September some goods were on the way and some more were sent a few days later. I refer to:
'26/9      Invoice 34748             $26,913.93
30/9      Invoice 414489
page 62 affidavit         $16,354.51'
I have mentioned that approximately $200,000 worth of goods had been supplied by the defendant by 25 September. By 30 September it was approximately $216,000 worth. They were the goods that had to be paid for directly to the defendant. In addition, as the letter of 20 September indicates, approximately $45,000 worth of stock was to be invoiced to the plaintiff through JGBS. Those goods were sent on 21 September - Invoice No 34267 (page 75 of the affidavit).
11So, adding them all up, about $260,000 worth of goods had been sent by the end of September or the first few days of October. What part of the August selection of goods was not sent? How serious was the breach of the second condition? The plaintiffs did not have an order form, so they had no list of the goods they had ordered. The goods were selected physically and put into trays for the defendant to invoice and send. What goods were not supplied? At par 60 of Mr Rogala's affidavit he states:
'9 carat chains and bracelets, handmade bracelets, chains and bangles.'
At 67, he states:
'The balance of the August order was never sent. This included a lot of 9 carat chains and bracelets ... and all of the handmade chains and bracelets he and his wife had selected.'
12That is hard to believe as the plaintiff had no list of what he had selected in August at the Trade Fair and Invoice No 34267 of 21 September 2000 (at 75 of affidavit) sent $47,105.27 of goods, all 9 carat, including many chains and bracelets, and Invoice No 34748 of 25 September 2000 sent $26,903.00 worth of goods, all 9 carat, including many chains and bracelets. It is likely that when he wrote that condition on the letter he had not yet received the goods in Invoice 34267 of 21 September. He said all the stock received in September came four or five days after the invoice concerned. I consider it likely that he had not received the 9 carat stock in these two invoices when he annotated the letter of 20 September on 25 September.
13I consider the plaintiff got most of the stock it ordered and it is unable to say what it did not get. The amount of stock ordered but not delivered, is unproved and I consider the breach of this condition is minor and does not justify a voiding of the contract.
14I consider the contract of 20 September stands. It replaces the oral contract made at the Trade Fair. The protestations of Mr Rogala that he did not appreciate this, or that he overlooked one or more terms, should be ignored: see L'estrange v Graucob [1934] 2 KB 394 that a person is normally bound by the terms of a written contract, even if he failed to read it or appreciate some of the terms."
I said in [10] of my earlier reasons, quoted above, that when Mr Rogala wrote that condition on the bottom of the letter on 25 September, some goods were on the way and some more were sent a few days later. I referred to Invoice No 414489 dated 30 September for $16,354.51, reproduced at page 62 of Mr Rogala's affidavit. I regret to say that I now think I was wrong in referring to that invoice. The goods, the subject of the 20 September agreement, were goods ordered by the plaintiff from the defendant at the Jewellery Trade Fair. Invoice 414489 relates to goods ordered on an earlier occasion. At par 45 of Mr Rogala's affidavit, he states that this invoice relates to past orders and some small orders that the plaintiff wanted to place which were placed through JGBS. The goods, the subject of this invoice, were not part of the goods of the 20 September agreement. According to the plaintiff's counsel, in the recent argument before me, this invoice was annexed to the affidavit for the sole purpose of showing a course of conduct, namely the prior purchase of stock by the plaintiff from the defendant through JGBS.
Mr Macdonald, for the plaintiff, queried my views on the plaintiff's claim that important parts of the stock that it had ordered at the Melbourne Jewellery Trade Fair were not received. In particular:
"- 9 ct chains and bracelets (par 50)
- 9 ct chains and bracelets ...
- 9 ct chains and bracelets and handmade bracelets, chains and bangles (par 60)
- 9 ct chains and bracelets that Ian Mandie knew Ritz had wanted urgently, and all of the handmade chains, bracelets and bangles Rebecca and I had selected (par 67)."
I said in my reasons that I considered the last two invoices of goods sent, namely No 34267 of 21 September 2000 and No 34748 of 25 September 2000, were probably received after Mr Rogala signed the agreement letter on 25 September. Did either of these two invoices include the required 9 carat chains, bracelets and bangles?
At par 12 of my earlier reasons I said that Invoice No 34267 for $47,105.27 included many 9 carat chains and bracelets, and that Invoice No 34748 for $26,903 included many 9 carat chains and bracelets. Mr Macdonald pointed out in re‑argument that those two invoices, along with the other six exhibited to Mr Rogala's affidavit as "ARR13 (i) to (viii)" only included the first and last page of each invoice and that this is clearly stated in par 49 of Mr Rogala's affidavit. I am told that it was done in this way to save on paper. So, Mr Macdonald queried how I could usefully analyse these affidavits as to their content when Invoice No 34267 was missing three or four pages and Invoice No 34748 was missing one page. The missing pages are, in fact, found in Mr Ivers' affidavit of 15 January 2001. The two invoices are found there. The annexures are not numbered. Invoice No 34267 is a re‑invoice of the earlier one of the same number. The goods in the earlier invoice have been re‑priced but they are the same goods. The order of the goods has been rearranged but, as far as I can tell, they are the same goods. I have gone through each of the items listed on p 1 of the original Invoice No 34267 (there are no items listed on p 5) and they all appear with the same code numbers and description etc on the re‑invoice. I am confidant that the re‑invoice contains a full list of the goods ordered in the original invoice. It contains approximately 46 x 9 carat gold chain "orders". An "order" could be, and very often was, for more than one chain. In counting them, I have assumed that a "necklace, 45 cm", for example, is regarded as a chain. That invoice also contains approximately 55 x 9 carat bracelets. It appears to contain only one bangle. I say "approximately" and "appears" because the abbreviations of some items are unclear; for example, "9 ct oval curb pdlk". I have not classified that as a chain, bracelet or bangle. In counting the number of chains, bracelets and bangles I have taken those figures from the re‑invoice No 34267. That invoice is, as I have said, complete. There are no pages missing. It describes each item, gives its gram weight, gives the price per gram, and then multiplies the two to get a total price which is then reduced to give what is called a "revised extended price". The goods are sold by weight and that invoice does not record how many of that particular item has been ordered. The number ordered is, however, given on the old invoice. Looking at page one of that invoice it refers to a number of 9 carat bracelets and chains. Leaving aside a few earrings ordered there, the number of the orders of particular bracelets and chains are, with one exception, more than one. The number of particular bracelets and chains ordered are as follows: 3, 4, 4, 3, 6, 5, 6, 4, 6, 4, 6, 2, 5, 6, 5, 1, 3, 5, 5, 6, 4, 3, 5.
Original Invoice No 34748 contains three pages. Page 2 is missing. The re‑invoice of the same number contains all the items. They total 89. I have compared all items listed on pp 1 and 3 of the old invoices and they appear on the re‑invoice. I have no reason to doubt that the re‑invoice contains a complete list of the items listed in the original invoice.
Re‑invoice No 34748 shows orders for numerous chains and bracelets. Indeed, nearly all of the items listed there are 9 carat chains or bracelets. That re‑invoice does not indicate whether more than one copy of an item was ordered. However, pages 1 and 3 of the original invoice 34748 give the number of copies of an item ordered and, in nearly all cases, more than one copy was ordered. Looking at page 1 of that invoice, for example, the following numbers of bracelets was ordered: 2, 4, 4, 3, 6, 3, 4, 4, 3, 6, 6, 5, 2, 2, 4, 2. On page 3 the following numbers of bracelets and chains were ordered: 8, 3, 6, 5, 8, 8, 1, 5, 1, 2, 2, 2, 1, 5, 2. Nine of the 89 orders in the re‑invoice relate to diamond earrings or pendants.
Reviewing the evidence contained in these two invoices which, as I have said, were received shortly after 25 September 2000, I consider they contain a reasonable number of 9 carat chains and bracelets. Very few are said to be hand made. They certainly do not contain many bangles. Those two invoices show the product category as "basic", "fancy" or "super fancy" and, in one or two cases, "handmade". Mr Macdonald argued that most of the goods in the gold chain bracelet and bangle categories were fancy or super fancy, as opposed to plain or basic and that his client was particularly awaiting the plain or basic items of these three types. I agree with him that most of the chains, bangles and bracelets mentioned in these two invoices are in the fancy or super fancy categories, and few a in the basic or plain categories, but I cannot see where, in Mr Rogala's affidavit or Mrs Rogala's affidavit, or in any annexure thereto, that they complain about not receiving enough of the basic items which they ordered. I consider there is no substance in this argument.
By the end of September or by early October 2000 the plaintiff had received goods described in the eight invoices sent between 11 September and 25 September and found at Annexures 13(i) to (viii) of Mr Rogala's affidavit. (These exclude Invoice No 414489 - already discussed.) The value of those goods came to $252,064.22 (original invoice prices) - see page 88 of that affidavit. The first invoice (No 33504 of 11 September) contained 27 x 9 carat bangle orders. It did not contain any orders for chains or bracelets. The second invoice (No 33506 also of 11 September) contained no orders for gold chains, bangles or bracelets. All the orders were for earrings. The third invoice (No 33514 also of 11 September) listed 28 different 9 carat bangle orders. I learn that from the re‑invoice. From the original invoice of which I only have the first and fourth pages, I learn that some of the bangle orders were for multiple copies. For example, page 4 of that invoice lists 11 bangle orders, but for a total number of 27 bangles. There were no chains or bracelets in that order. The fifth invoice (No 33567 of 12 September) does not list any 9 carat gold chains, bracelets or bangles. It reveals many 18 carat gold chains. Likewise with the sixth invoice (No 33735 of 13 September). It relates only to 18 carat gold jewellery. I have previously discussed the seventh and eighth invoices (Nos 34267 and 34748). As I have said, by the end of September or early October the plaintiff had received $252,064.22 worth of jewellery ordered at the Melbourne Jewellery Trade Fair and they included a reasonable number of 9 ct gold chains, bracelets and bangles. I think it matters not that not many of them were plain because that is not covered by Mr Rogala or Mrs Rogala's evidence and I consider it matters little that not many of them are designated as handmade. The plaintiff seems to have had a reasonable amount of stock of these three kinds to get on with the business of selling it. Coupled with the dilemma that he does not have a list of the goods that he ordered at the Trade Fair, I conclude that the plaintiff cannot show a breach of contract from the defendant in relation to the non‑supply of these three items to justify rescission of the written contract which would reinstate the original oral contract which gave the plaintiff more extended terms of payment. I am thus sceptical and do not accept Mr Rogala's estimate, at par 79 of his affidavit, that the balance of his Trade Fair order which he did not receive was about $40,000 worth.
The next argument raised by Mr Macdonald relates to the re‑invoicing of the original invoices at the correct price. He states that a close examination of Mr Ivers' affidavit reveals that the plaintiff did not in fact receive four of the eight invoices said to be re‑invoiced, namely Invoice Nos 33514, 33567, 34267 and 34748.
On 26 October 2000 Mr Damian Ivers, the defendant's chief financial officer, sent a fax to Mr Rogala in these terms:
"Please find attached a summary of the revised invoice totals due the correction in the pricing as previously discussed.
I have faxed a copy of the credit re Invoice 34267 to JGBS today and requested the credit note be processed this month.
I have also forwarded to you via express post the following:
•The abovementioned summary
•Detailed calculations supporting the credit notes.
•Copies of the relevant credit notes.
In addition I have tried to contact you recently to discuss the payment of the account in accordance with our letter dated the 20/9/00.
Could you please contact me in our Melbourne office on 03 96544263."
That letter is found at 81 of Mr Rogala's affidavit.
Mr Rogala deposes to this at par 77:
"77.On either 3^rd or 6^th November I received a bundle of documents from Artimports with a with compliments slip signed by Damien [sic] Ivers. The bundle was comprised of:
(a)The statement from Artimports to Ritz for the month of September 2000 contained in annexure ARR20;
(b)The enclosure to Damien [sic] Ivers' fax to me dated 26 October 2000 (ARR 15), namely the document entitled Summary of Revised Trade Fair Invoice Calculations;
(c)A bundle of credit notes all dated 26 October 2000;
(d)A document entitled Revised Tax Invoice Calculation."
The Summary of Revised Trade Fair Invoice Calculations is found at 82 of Mr Rogala's affidavit and as "DI 1" to Mr Ivers' affidavit. It is a one page summary. The bundle of credit notes, all dated 26 October 2000, are found annexed to Mr Ivers' affidavit. Mr Ivers in his affidavit, at par 4, states that he sent to the plaintiff by Express Post on 26 October 2000 the summary and revised invoice calculations setting out the detailed calculations supporting the credit notes and copies of the relevant credit notes. Those documents are attached to his affidavit. Mr Rogala, at par 77 of his affidavit, refers in (d), to a "document entitled Revised Tax Invoice Calculation". I am satisfied that this refers to the revised invoice calculations. I say that, because the letter I have quoted refers to detailed calculations supporting the credit notes. Mr Ivers says that he sent those detailed calculations and I consider, on the probabilities, that he did just that. What is the point of sending the one line credit notes without the detailed calculations, because Mr Rogala would want to check that those calculations were based on the correct prices? Mr Ivers' affidavit contains eight revised invoice calculation documents - one for each of the eight invoices - which are annexed to Mr Rogala's affidavit at ARR 13(i ‑ viii). These are the documents which I have referred to as the "re‑invoices". They show the same invoice number and the same date but their heading is "Revised Invoice Calculation". They cover many pages and list, as I have indicated above, all the items sent and invoiced to the plaintiff. Mr Rogala does not complain that he did not receive those eight revised invoices. Immediately after par 77, which I have quoted, in par 78, he complains that the statement refers to two invoices - 34105 and 34134 - which relate to the consignment note stock taken by his wife Rebecca in June 2000 from the defendant's Sydney office. He says that that was the first time they had been mentioned, apart from the defendant's letter of 26 October 2000:
"I once again repeat that these invoices have never been received by Ritz."
These two invoices are not included in the eight invoices which I have already discussed, that is the eight invoices attached to Mr Rogala's affidavit at "ARR 13" for goods ordered at the Melbourne Fair. In any event, as explained at pp 99, 100, 101 and 102 of Mr Rogala's affidavit, they are re‑invoices with new numbers to two invoices 23764 and 242000 [the number should be 24209] both dated 8 June 2000, which the plaintiff did get for goods ordered and collected in Sydney - pp 56, 57 and pars 15 ‑ 16.

I turn now to Mr Macdonald's argument that the plaintiff did not in fact re‑invoice four of the eight invoices. The first one mentioned is Invoice No 33514, dated 11 September which is the third invoice in the series of eight. This was re‑invoiced. The original invoice, at 67 and 68 of Mr Rogala's affidavit, is for $26,769.49. The re‑invoice is for $26,250.76, a reduction of $518.73.
The second one mentioned is Invoice No 33567, which is number five in the sequence and is found at 71 and 72 of Mr Rogala's affidavit. It is for $42,835.06. The calculations in that invoice have been redone in the revised invoice but they come to practically the same total. The revised total is $42,836.97 which is an increase of $1.91. This has been ignored, I guess because the purpose of the requested revision was to reduce the prices, and the re‑invoice has been issued for the same total of $42,835.06. An examination of the individual items will show numerous re‑calculations. I can only assume that the re‑calculations overall balance out. An example of the re‑calculation, though, is this. The fourth item on the original invoice is an order for "18 CT FIG 3 + 1 50 cm", (which I assume to be a chain) quantity ordered 2, total number of grams 28.40, price $19.16 per gram, total price $544.14, less discount 11.33%, equals net price $482.49". The revised invoice shows 28.40 grams x $19.16 per gram equals $544.14, then "correct price $16.99 per gram, revised extended price $482.52". It can be seen that this is three cents greater than the original price. One of Mr Rogala's complaints was that he was given a set of prices at the Trade Fair and they were prices per gram. He did not agree to any discount rate, so he did not want or expect the goods to be at some other price and then discounted. He wanted the goods to be invoiced at the agreed prices. In the example given in the re‑invoice the correct[ed] price was $16.99 per gram. It was a "basic" item. This detail is not shown on the original invoice but is shown on the re‑invoice. The agreed price for 18 ct gold basic, in the list handed to Mr Rogala in Melbourne was $16.99 per gram (see p 60 of Mr Rogala's affidavit).
A glance through the whole of the re‑invoice will show that all items - all 18 ct - were invoiced at:
basic  $16.99 per gram
fancy  $18.59 per gram
Super fancy  $20.49 per gram
These are all at the agreed prices as per the handwritten price list handed to the plaintiff in Melbourne. A comparison of the last column in the invoice and the last column in the revised invoice shows differences of a few cents only. I consider there is no substance in this complaint that Invoice No 33567 was not re‑invoiced.
The third invoice said to be not in fact re‑invoiced is No 34267 which is the seventh invoice in the series. I will take, as an example, the third item in the original invoice which is "Earrings 9 CT PLAIN CREOLE, Quantity 26, Total grams 36.20, price per gram $14.26, total price $516.21, discount 14.10%, net price $443.42". As I have mentioned above, the sequence of items is different in the revised invoice. In the revised invoice these 9 carat plain Creole earrings appear as the fifteenth item listed there. It is shown there as "36.20 grams, price per unit $14.26, total price $516.21; Correct price $11.99 per gram. Revised extended price $434.04", which is a reduction of $9.38. I turn to the agreed price list found at 60 of Mr Rogala's affidavit, which states that the agreed price for 9 carat gold earrings was $11.99 per carat. This invoice is revised. The original total was $47,105.27. The revised total was $45,208, a reduction of $1,897.27.
The fourth invoice, said to be not in fact re‑invoiced, is the eighth one in the sequence, No 34748. The original invoice totalled $26,913.93. The revised invoice totals $26,107.88, a reduction of $806.05. As previously stated, the order of goods in the re‑invoice differs from that in the original invoice but, so far as I can tell (because I have only got pages 1 and 5 of the original invoice whereas I have all of the revised invoice), all of the items correspond. For example, the first item on the original invoice is a 9 ct garnet bracelet. It is item 33 on the revised invoice. The second, third and fourth items are certain 9 ct earrings. They are items 14, 75, 82 in the re‑invoice. All of the items listed in the re‑invoice are at the correct agreed prices as per the list given to Mr Rogala in Melbourne (pp 59 and 60 of his affidavit).
I consider that Invoice Nos 33514, 33567, 34267 and 34748 have all been properly re‑invoiced at the prices supplied to Mr Rogala in Melbourne.
For the above reasons, I consider my original decision should stand.
Since writing the above, I have the following thoughts which I raise by way of obiter dicta. They may be relevant if my orders are taken on appeal. It was put to me by the plaintiff that the conditions imposed by the plaintiff in the words added to the foot of the letter were twofold: (a) that the defendant issue invoices at the agreed prices per gram, and (b) that the plaintiff deliver the balance of the stock ordered. The words themselves are:
"PROVIDING that the stock be invoiced at the prices agreed and supplied by you to me while in Melbourne.
Those words only impose one condition - that the goods be re‑invoiced at the prices agreed and given to Mr Rogala in Melbourne in the form of a list. That condition was "accepted" by the defendant by a fax sent on 25 September (Rogala's affidavit 80) Also, the defendant carried out that condition.
Mr Rogala, at par 60 of his affidavit, claims that he wrote the two conditions in the words added at the bottom of the letter which he faxed to the defendant. The words used do not say that. The condition could, however, be oral. At par 61, he states:
"The next day I telephoned and spoke to Ian Mandie. I told him that I was going to fly to Melbourne straight away to collect the balance of the August order, and the new invoices. He said No. We have just sent another parcel to you. I said is that the full order. He said No. I said what about the invoices. He said we still have not done them. I said I need them before the end of the month because the GST segment finishes at the end of this month. He said you are not our only client. We will do them when we can."
It is apparent from that conversation, that that condition was not accepted. Mr Rogala wanted to fly to Melbourne and collect the balance of the August order "straight away". He also said that he needed the balance of the order before the end of the month, meaning September. It was then 25 September. So he wanted the balance of the stock to be received by him by 30 September. The response was negative: "You are not our only client. We will do them when we can." It seems to me that this second condition was not accepted by the defendant. It is of interest too that in correspondence soon after 25 September the plaintiff made no mention of the missing stock. The plaintiff's first fax to the defendant after that date produced to me is dated 26 October 2000 (Rogala 85) and makes no mention of the "condition" to supply missing stock. In a fax dated 31 October the plaintiff offered to return the stock supplied in Invoices 33735 and 335671 which were unopened, and asked for "any back orders of stock whatsoever to be immediately cancelled" (Rogala 89).