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

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

The contract between TQM and Entire Concrete contained implied terms as to fitness for purpose under s 19(1) Sale of Goods Act 1923 (NSW). Entire breached these terms by delivering concrete not fit for its known purpose. Terms from the delivery docket and vendor's website were not incorporated into or did not exclude the implied terms. TQM's rejection was justified and not repudiation; damages awarded to TQM.

Parties
Plaintiff/cross Defendant: TQM Design & Construct Pty Ltd; Defendant/cross Claimant: Entire Concrete Pty Ltd
Jurisdiction
Australia
Judgment Date
25 October 2024
Procedural Posture
Civil / Final Judgment
Outcome
judgment for plaintiff, cross-claim dismissed
Legal Topics
Implied Terms, Variation by Incorporation, Exclusion of Liability, Fitness for Purpose, Breach of Contract, Damages
Contracts Implied Terms Variation by Incorporation Exclusion of Liability Fitness for Purpose Breach of Contract Damages

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Parties

TQM Design & Construct Pty Ltd

Plaintiff/cross Defendant

Entire Concrete Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Was the concrete delivered fit for its known purpose under the contract?
  2. 2 When and on what terms was the contract for sale made?
  3. 3 Were terms from the delivery docket and vendor's website incorporated into the contract as a variation?

Ratio Decidendi

The contract between TQM and Entire Concrete contained implied terms as to fitness for purpose under s 19(1) Sale of Goods Act 1923 (NSW). Entire breached these terms by delivering concrete not fit for its known purpose. Terms from the delivery docket and vendor's website were not incorporated into or did not exclude the implied terms. TQM's rejection was justified and not repudiation; damages awarded to TQM.

Court Disposition

judgment for plaintiff, cross-claim dismissed

Orders

  • Judgment for the Plaintiff in the sum of $59,664.88, together with interest calculated at Court rates from 28 days after the last invoice until entry of judgment.
  • Dismiss the cross-claim.