TERS AND ANOR v SHANTILAL BROS (AUSTRALIA) PTY LTD [1998] NSWCA 224

TERS v SHANTILAL BROS (AUSTRALIA) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and STEIN JJA 11 March 1998, 19 March 1998

[1998] NSWCA 224 CONTRACT — no contract — failure to agree upon price

Summary of Facts

The plaintiff began proceedings by way of statement of liquidated claim to recover $32,458.60 from the defendants. This amount was alleged to be the amount outstanding of the price for goods sold and delivered. A Mr Tang had approached the defendants to sell a quantity of umbrellas held by the plaintiffs. Mr Tang and the defendants agreed upon a price of $1.25 per umbrella and completed a purchase order to that effect. Mr Gohil, the plaintiff's managing director, was not prepared to sell the umbrellas at that price and altered the price on the purchase order to $22.20 per dozen. There was no evidence that this change in price was ever communicated to the defendants.

On 23 April 1986 the umbrellas were delivered and Mr Tang prepared an invoice No 1292 recording the price as $1.25 each which he issued to the defendants on 29 April. The plaintiffs prepared another invoice No 1298 addressed to Mr Tang for "Interest" of $26,064. This amount is the difference between the sale price at $22.20 per dozen and the sale price at $1.25 each. The defendants drew three post dated cheques for payment of the amount owed at the price of $1.25 per umbrella.

On 29 July 1986 Mr Gohil wrote to the defendants requesting payment for both invoices No 1298 and 1292. At some point the plaintiffs sent a further invoice also numbered 1292 to the defendants recording the sale price as $22.20 per dozen and statement referring to this invoice alone in support of its claim.

At Trial

His Honour Judge Mahoney QC gave a verdict in favour of the plaintiffs of $71,329.28 made up of $32,458.60 for the balance owing on the alleged sale and $38,870.68 for interest. This judgement rested upon the finding that a contract had been made at the higher price.