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

District Court New South Wales

Medium Neutral Citation: TQM Design & Construct Pty Ltd v Entire Concrete Pty Ltd [2024] NSWDC 502 Hearing dates: 21-22 October 2024 Date of orders: 25 October 2024 Decision date: 25 October 2024 Jurisdiction: Civil Before: Newlinds SC DCJ Decision: (1) Judgment for the Plaintiff in the sum of $59,664.88, together with interest calculated at the Court rates on the whole of that sum from 28 days after the date of the last invoice until the date of entry of this judgment. (2) Dismiss the cross-claim. (3) Direct the parties to agree as to interest payable on the judgment sum. (4) I will hear the parties further as to the question of costs. Catchwords: CONTRACTS – Terms implied by statute – Variation by incorporation – Contract for sale and delivery of concrete to a building site – Allegation that concrete not fit for known purpose – When was contract made – What were its terms – Were those terms varied by signature on delivery docket that referred to terms and conditions on vendor's website – Did any term of those conditions contract out of the operation of the Sales of Goods Act – Construction of exclusion of liability provision – Breach – Damages Legislation Cited: Sale of Goods Act 1923 (NSW) s 19(1) Cases Cited: Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Eggleston v Marley (1979) 21 SASR 51 DJ Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749 National Australia Bank Ltd v Dionys [2016] NSWCA 242 Carnival v Karpink (2022) 294 FCR 524 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Category: Principal judgment Parties: TQM Design & Construct Pty Ltd (Plaintiff/Cross-Defendant) Entire Concrete (Defendant/Cross-Claimant) Representation: Counsel: L Corbett (Plaintiff/Cross-Defendant) F Di Lizia (Defendant/Cross-Claimant)