Peter Turnbull & Co Pty Ltd v Mundus Trading Co (A/asia) Pty Ltd [1954] HCA 25

High Court of Australia Dixon C.J. Webb, Kitto and Taylor JJ Peter Turnbull & Co Pty Ltd v Mundus Trading Co (A/asia) Pty Ltd [1954] HCA 25

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal from the verdict and judgment thereon of Kinsella J. to the said Full Court be dismissed with costs. Restore verdict and judgment of Kinsella J.

Cur. adv. vult.

The following written judgments were delivered:—

June 1 Dixon C.J.

The question for decision upon this appeal is whether, under the terms of a contract for the sale and purchase of oats f.o.b. Sydney, the buyer is disentitled to recover from the seller for nondelivery of the oats because the buyer failed in the fulfilment of conditions precedent. At the trial of the action as a commercial cause before Kinsella J. without a jury, the buyer, who is the plaintiff in the action and the appellant in this Court, succeeded and recovered £2,100 damages, but the decision in the buyer's favour was reversed in the Full Court by Street C.J., Owen and Clancy JJ. The contract was dated 22nd November 1950. The defendant agreed to sell and the plaintiff to buy a quantity of about 250 tons of oats at a price of 7s. 4d. a bushel free on board Sydney. The contract is expressed as subject to conditions, the most material of which is as follows:—"Delivery. To be loaded on ship or ships nominated by Buyer during the months of January and February 1951. Buyers to give seller fourteen days notice of ship(s) and shipping date(s)". No doubt the first part of this condition means that the oats must be loaded on ship or ships during the months of January and February 1951 and that the ship or ships must be nominated by the buyers. In other words the clause does not mean that it is enough that the nomination of a ship should be made during January and February, although the ship does not become available for loading until later. There is a general condition providing that the contract is subject to strikes, fires, lockouts, breakdown of machinery, force majeure, and other contingencies beyond buyers' and sellers' control.