Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75

The exclusion and indemnity clauses found on the back of the Application for Credit were not incorporated into the contract between Finemores and Richard Thomson Pty Ltd, as Finemores did not do what was reasonably sufficient to give effective notice of the clauses' existence or content; therefore, the clauses could not be relied on in defence or cross-claim. Alphapharm had sufficient possessory title over the goods, having appropriated and marked the relevant consignments with the owner's consent, so was entitled to sue for loss by bailee. Accordingly, judgment for the plaintiffs was justified and the appeal and cross-appeal were dismissed.

Jurisdiction
Australia
Judgment Date
11 April 2003
Procedural Posture
Civil Appeal / Judgment of the Court of Appeal of New South Wales
Outcome
Appeal dismissed; cross-appeal dismissed.
Legal Topics
['incorporation of Exclusion Clauses' 'objective Construction of Contract' "rule in L'estrange V Graucob" 'notification of Contractual Conditions' 'negligence by a Bailee' 'standing to Sue in Bailment' 'leave to Adduce Further Evidence']
['contract Law' 'commercial Law' 'negligence' 'bailment'] ['incorporation of Exclusion Clauses' 'objective Construction of Contract' "rule in L'estrange V Graucob" 'notification of Contractual Conditions' 'negligence by a Bailee' 'standing to Sue in Bailment' 'leave to Adduce Further Evidence']

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Procedural Posture

Civil Appeal / Judgment of the Court of Appeal of New South Wales

Legal Issues

  1. 1 ['Whether exclusion and indemnity clauses were incorporated into the contract between Finemores and Richard Thomson Pty Ltd' 'Whether Alphapharm had sufficient title to sue for loss as a bailee' 'Whether Ebos suffered loss and had standing to claim' 'Whether Finemores was entitled to indemnity from Richard Thomson Pty Ltd' 'Whether RT was acting as agent for Alphapharm in contracting with Finemores' 'Whether sufficient notice was given of exclusion/indemnity clauses']

Ratio Decidendi

The exclusion and indemnity clauses found on the back of the Application for Credit were not incorporated into the contract between Finemores and Richard Thomson Pty Ltd, as Finemores did not do what was reasonably sufficient to give effective notice of the clauses' existence or content; therefore, the clauses could not be relied on in defence or cross-claim. Alphapharm had sufficient possessory title over the goods, having appropriated and marked the relevant consignments with the owner's consent, so was entitled to sue for loss by bailee. Accordingly, judgment for the plaintiffs was justified and the appeal and cross-appeal were dismissed.

Court Disposition

Appeal dismissed; cross-appeal dismissed.

Orders

  • ['Appeal dismissed with costs.' 'Cross-appeal dismissed, no order as to costs.']