16 Apr 2013
HERBERT CONSTRUCTION COMPANY LIMITED V CARTER HOLT HARVEY LIMITED HC NAP CIV-2012-441-368
- Citation
- openlaw-23fed97f_f5d4_488c_9810_fad4ccfd8441.pdf
- Court
- High Court
The court held Carters' standard terms applied to the sale but the terms did not effectively exclude the implied condition of merchantable quality or Herbert's remedy in damages for breach of that condition. Clause 2.3 (no deduction/set-off) prevented Herbert abating the price, but clauses 5.2/5.5 did not lawfully eliminate a damages remedy for breach of the implied condition. Because Herbert's counterclaim directly related to the roofing supply and was arguable and substantial, the court exercised its discretion under s 290(4) to set aside the statutory demand to the extent of the roofing in…