TQM Design & Construct Pty Ltd v Entire Concrete Pty Ltd

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.