KELSO BUILDERS SUPPLIES PTY LTD v TIMBRECK PTY LTD [1989] NSWCA 121

KELSO BUILDERS SUPPLIES PTY LTD v TIMBRECK PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 11 May 1989, 30 May 1989

[1989] NSWCA 121

CONTRACT — express terms — credit arrangements for the supply of timber — discount provided if paid within 30 days — alleged conversation, rejected by trial judge, that discount arrangement a "sham" — schedule of payments shows that discount was frequently allowed although payment made outside 30 days — witness justifies allowance of discount by reference to existence of disputes and certain over-payments — trial judge accepts that witness — held: (1) Having regard to the rejection of the credit-worthiness of the appellant's witness, the trial judge's findings concerning the terms of the contract between the parties could not be disturbed by an appellate court. Brunskill vy Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 applied. Chambers v Jobling (1986) 7 NSWLR 1 and Jones v Hyde, High Court of Australia, unreported, 11 April 1989 referred to; (2) The evidence did not justify a conclusion of an estoppel against, or waiver by, the creditor of the terms, as found, providing for discounted price only for payments made on time; (3) A defence that the terms constituted a penalty and that the amount claimed was not enforceable could not be raised for the first time on appeal. Coulton v Holcombe (1986-7) 162 CLR 1 applied; O'Dea v Allstates Leasing System (WA) Pty Ltd (1982-3) 152 CLR 359 and Esanda Finance Corporation Ltd v Plessnig (1989) 63 ALJR 238 referred to; (4) Other challenges as to the amount of the judgment and the provision for interest had no substance; (5) Appeal (from Conomos DCJ) accordingly dismissed. CONTRACT — penalty — provision for indulgence in credit arrangements if price paid within 30 days — provision for a substantially larger sum to be paid if the 30 day requirement was not complied with — frequent failure to impose the larger sum despite late payments — whether constitutes a penalty — held: Unnecessary to decide — the point not properly raised below could not be raised for the first time on appeal. O'Dea v Allstates Leasing System (WA) Pty Ltd (1982-3) 152 CLR 359 referred to. CONTRACT — waiver — requirement of clear conduct to constitute waiver — McCutcheon v David Macbrayne Ltd [1964] 1 WLR 125, 128 (HL) applied.