LIAWEENA (NSW) PTY LTD v McWILLIAMS WINES PTY UNITED [1990] NSWCA 194

LIAWEENA (NSW) PTY LTD v McWILLIAMS WINES PTY UNITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY JA, AND HANDLEY JA 12 April 1990, 5 December 1990

[1990] NSWCA 194

CONTRACT — exclusion of liability — supply of defective wine corks — whether supplier absolved by terms and conditions from liability for breach of warranties of merchantable quality and fitness implied by the Sale of Goods Act 1923, s19 — whether exempting terms and conditions incorporated into the contract of sale

EVIDENCE — failure to call witness — inferences available — proper approach to — care necessary in drawing available inferences from such failure. Jones vy Dunkel (1963) 101 CLR 298 explained and applied. Steele vy Mirror Newspapers Ltd [1974] 2 NSWLR 348, 377 referred to.

(1) Having regard to the letter by which the supplier submitted its new terms and conditions to the purchaser, and the evidence of the relevant officer of the purchaser who read that letter accepted at trial, the new terms and conditions were not incorporated into the contractual arrangements between the parties. Hardwick Game Farm v Suffolk Agricultural Poultry Producers' Association [1966] 1 WLR 287, 339 (HL); Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805, 809 (CA) applied;

(2) Upon a proper analysis of the subsequent dealings by which further corks were ordered and supplied, the supplier's new terms and conditions contained on the back of its invoice did not become part of the contractual arrangement between the parties. Sargent v ASL Developments Ltd (1974) 131 CLR 634, 649 applied;

(3) The failure of the purchaser to call as a witness the company secretary who initialled the supplier's letter providing the terms and conditions did not sufficiently fix the purchaser with any knowledge which could thereby be imputed to that officer. His knowledge was not that of the purchaser. Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170 (HL) applied;