TQM Design & Construct Pty Ltd v Entire Concrete Pty Ltd - [2024] NSWDC 502

District Court

New South Wales

Amendment notes

Medium Neutral Citation: TQM Design & Construct Pty Ltd v Entire Concrete Pty Ltd [2024] NSWDC 502
Hearing dates: 21-22 October 2024
Date of orders: 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
(1)   Judgment for the Plaintiff in the sum of $59,664.88, together with interest calculated at the Court rates on the whole of that sum from 28 days after the date of the last invoice until the date of entry of this judgment.
(2)   Dismiss the cross-claim.
(3)   Direct the parties to agree as to interest payable on the judgment sum.
(4)   I will hear the parties further as to the question of costs.

Catchwords:
CONTRACTS – Terms implied by statute – Variation by incorporation – Contract for sale and delivery of concrete to a building site – Allegation that concrete not fit for known purpose – When was contract made – What were its terms – Were those terms varied by signature on delivery docket that referred to terms and conditions on vendor’s website – Did any term of those conditions contract out of the operation of the Sales of Goods Act – Construction of exclusion of liability provision – Breach – Damages

Legislation Cited:
Sale of Goods Act 1923 (NSW) s 19(1)

Cases Cited:
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Eggleston v Marley (1979) 21 SASR 51
DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749
National Australia Bank Ltd v Dionys [2016] NSWCA 242
Carnival v Karpink (2022) 294 FCR 524
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Category: Principal judgment
Parties: TQM Design & Construct Pty Ltd (Plaintiff/Cross-Defendant)
Entire Concrete (Defendant/Cross-Claimant)
Representation:
Counsel:
L Corbett (Plaintiff/Cross-Defendant)
F Di Lizia (Defendant/Cross-Claimant)
Solicitors:
BCP Lawyers & Consultants (Plaintiff/Cross-Defendant)
Curtis Delaney Gray Solicitors (Defendant/Cross-Claimant)

File Number(s): 2023/76078
Publication restriction: Nil

JUDGMENT

Overview

By Statement of Claim filed 7 March 2023, the Plaintiff (“TQM”), a commercial builder, sought damages of $539,641.80 for breach of contract against the Defendant (“Entire”), a supplier of concrete to the building industry.
Notwithstanding the amount claimed in the pleading, the case was opened on the basis of damages of $90,930.30, but ultimately presented in final submissions at $65,379.88.
The claim arises out of a delivery by Entire of concrete on 20 December 2022, at the request of TQM, to a building site under the control of TQM.
TQM’s case is that the concrete was defective, in the sense that it had, to use the jargon of the industry, "gone off", in that it was already hardening while still in the trucks.
TQM submits that the concrete delivered was not fit for its known purpose, in particular that it was not capable of being adequately pumped from the truck in which it was delivered onto the site to form part of…

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: [2024] NSWDC 502
Decision Date: 25 October 2024

CaseChat Overview and Summary

The matter before the court involved a dispute between TQM Design & Construct Pty Ltd, the plaintiff, and Entire Concrete Pty Ltd, the defendant. The plaintiff, a construction company, had entered into a contract with the defendant for the sale and delivery of concrete to a building site. The plaintiff alleged that the concrete delivered was not fit for its intended purpose. The central issue was whether the terms of the contract had been varied by the defendant's incorporation of terms and conditions via a signature on a delivery docket, which referred to the terms and conditions available on the defendant's website. Another issue was whether any of those terms excluded the operation of the Sale of Goods Act and, if so, how the exclusion of liability provision should be construed in light of any breach. The court also had to determine the extent of any breach and the appropriate quantum of damages to be awarded.

The court found that the contract was made when the plaintiff's representative signed the delivery docket, thereby incorporating the terms and conditions from the defendant's website. The court held that these terms did not exclude the operation of the Sale of Goods Act, as the exclusion of liability clause was not sufficiently clear and explicit to override the statutory protections. The court construed the exclusion of liability provision narrowly, finding that it did not absolve the defendant of liability for breach of the implied warranty of fitness for purpose. The court awarded damages to the plaintiff for the cost of the defective concrete and its replacement, along with interest on the judgment sum. The court dismissed the defendant's cross-claim and directed the parties to agree on the interest payable on the judgment sum. The matter of costs was reserved for further hearing.

The court's orders included a judgment for the plaintiff in the sum of $59,664.88, together with interest calculated at the Court rates from 28 days after the date of the last invoice until the date of entry of this judgment. The court also dismissed the defendant's cross-claim and directed the parties to agree on the interest payable on the judgment sum. The court reserved the question of costs for further hearing.

Orders

Orders of the court

(1) Judgment for the Plaintiff in the sum of $59,664.88, together with interest calculated at the Court rates on the whole of that sum from 28 days after the date of the last invoice until the date of entry of this judgment.

(2) Dismiss the cross-claim.

(3) Direct the parties to agree as to interest payable on the judgment sum.

(4) I will hear the parties further as to the question of costs.

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

Full text does not contain this section.

Medium Neutral Citation:	TQM Design & Construct Pty Ltd v Entire Concrete Pty Ltd [2024] NSWDC 502
Hearing dates:	21-22 October 2024
Date of orders:	25 October 2024
Decision date:	25 October 2024
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	(1) Judgment for the Plaintiff in the sum of $59,664.88, together with interest calculated at the Court rates on the whole of that sum from 28 days after the date of the last invoice until the date of entry of this judgment. (2) Dismiss the cross-claim. (3) Direct the parties to agree as to interest payable on the judgment sum. (4) I will hear the parties further as to the question of costs.
Catchwords:	CONTRACTS – Terms implied by statute – Variation by incorporation – Contract for sale and delivery of concrete to a building site – Allegation that concrete not fit for known purpose – When was contract made – What were its terms – Were those terms varied by signature on delivery docket that referred to terms and conditions on vendor’s website – Did any term of those conditions contract out of the operation of the Sales of Goods Act – Construction of exclusion of liability provision – Breach – Damages
Legislation Cited:	Sale of Goods Act 1923 (NSW) s 19(1)
Cases Cited:	Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Eggleston v Marley (1979) 21 SASR 51 DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749 National Australia Bank Ltd v Dionys [2016] NSWCA 242 Carnival v Karpink (2022) 294 FCR 524 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Category:	Principal judgment
Parties:	TQM Design & Construct Pty Ltd (Plaintiff/Cross-Defendant) Entire Concrete (Defendant/Cross-Claimant)
Representation:	Counsel: L Corbett (Plaintiff/Cross-Defendant) F Di Lizia (Defendant/Cross-Claimant) Solicitors: BCP Lawyers & Consultants (Plaintiff/Cross-Defendant) Curtis Delaney Gray Solicitors (Defendant/Cross-Claimant)
File Number(s):	2023/76078
Publication restriction:	Nil