Burkard and Company Limited v Wahlen [1928] HCA 42

Burkard and Company Limited v Wahlen [1928] HCA 42

The ordinary measure of damages for breach of contract for sale of goods was excluded by the specific indemnity stipulation in the contract; the plaintiff had elected to abandon indemnity claim prior to trial and relied instead on a legally untenable claim for damages based on market price difference, thus no recoverable damages existed beyond commission, and verdict for defendants was correct.

Parties
Appellant; Plaintiff: Burkard and Company Limited; Respondents; Defendants: Rudolph Wahlen and Alfred Kienzle trading as Australian Pacific Trading Co.
Jurisdiction
Australia
Judgment Date
10 December 1928
Procedural Posture
Civil / Appeal From the Supreme Court of New South Wales (full Court) to the High Court of Australia
Outcome
appeal dismissed
Legal Topics
Sale of Goods, Breach of Contract, Measure of Damages, Indemnity, Arbitration Clauses
Contract Law Sale of Goods Breach of Contract Measure of Damages Indemnity Arbitration Clauses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Burkard and Company Limited

Appellant; Plaintiff

Rudolph Wahlen and Alfred Kienzle trading as Australian Pacific Trading Co.

Respondents; Defendants

Procedural Posture

Civil / Appeal From the Supreme Court of New South Wales (full Court) to the High Court of Australia

Legal Issues

  1. 1 Whether the ordinary measure of damages for breach of contract applies or is excluded by a stipulation for indemnity in the contract
  2. 2 Whether correspondence between parties affects the claim for damages
  3. 3 Whether the plaintiff's entitlement to damages is limited to commission under the contract

Ratio Decidendi

The ordinary measure of damages for breach of contract for sale of goods was excluded by the specific indemnity stipulation in the contract; the plaintiff had elected to abandon indemnity claim prior to trial and relied instead on a legally untenable claim for damages based on market price difference, thus no recoverable damages existed beyond commission, and verdict for defendants was correct.

Court Disposition

appeal dismissed

Orders

  • verdict for plaintiff set aside
  • judgment entered for defendants