AGK Pacific (NG) Pty Ltd v ET Taylor Constructions Pty Ltd (1990) N871

• Jurisdiction: Papua New Guinea
• Citation: (1990) N871
• Date: 20 April 1990
• Court: National Court
• Year: 1990

Full Title: AGK Pacific (NG) Pty Ltd v ET Taylor Constructions Pty Ltd (1990) N871

National Court: Doherty AJ

Judgment Delivered: 20 April 1990

1 BREACH CONTRACT—implied terms—terms of a contract between a builder and his client not binding on a supplier unless the terms were expressly or impliedly incorporated—contract completed when goods accepted—costs.

The plaintiff contracted with the defendant to construct timber counters and stairs for use in buildings the defendants were erecting for their clients. There was no written contract between the parties other than a drawing of the design of the counters and stairs and an order which stated goods were "ex workshop". The defendants collected the goods from the plaintiffs workshop and installed them but failed to pay. After several months they complained of defects and purported to reduce payment to account for costs of remedial work after issue of the writ.

Held:

(1) The plaintiffs were a supplier and not subject to the terms and conditions of the contract between defendant builder and his client.

(2) Terms as to workmanship and condition of timber may be incorporated if stated on the drawings handed to the joiner.

(3) Contract was completed when the goods were accepted at the workshop and any rejection due to defect should have been made there.

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Doherty AJ: The plaintiff claims a total of K15,836.00 from the defendant company for two contracts for the supply of goods in or about July and August 1988.

The defendant says that it paid part of these accounts, after the issue of the writ to an amount of K12,660.00 and that it disputes the balance of K3,170.00 on the basis of defects of workmanship. The plaintiff did not accept the sum of K12,660.00 as it was tendered as a full and final settlement of the claim and the hearing proceeded for the total amount of K15,836.00.

There had been various dealings between the two companies over an unspecified number of years. There is no suggestion or evidence that there had been prior conflicts nor was there any written or oral contractual terms between the parties in the past that applies to these contracts.

The claim involves two separate supplies of timber products. The first were counters for the Westpac Bank at Wau and the Westpac Bank at Bulolo (hereinafter the Wau/Bulolo contract) the total of this claim was K13,514.00. The second contract was for the supply of stairs to a residential property (hereinafter the stair contract) in Lae. There is no connection between these two contracts and I find that they were separate contracts, which took place at different times, that the parties intended them to be two different contracts and the terms of the contract were not intended by the parties to be the same.

There is ample evidence, and it is undisputed, that there was offer and acceptance between the parties and it was intended that the parties be contractually and legally bound. However there is little evidence as to the exact terms of the contract and it is those terms that have lead to the present dispute. Two witnesses gave evidence on behalf of the plaintiff as to the negotiation and the implementation of the contract.

Two witnesses gave evidence on behalf of the defendant on the remedial work that had to be carried out by the defendant to rectify defects they alleged were present in the goods supplied and the price and cost of those remedial works. Neither of these witnesses for the defence was present or employed by the defendant at the time when the contracts were entered into with the plaintiff. As a result, the evidence by the plaintiffs on the terms and conditions...