A clause in a sale contract that deals with the consequences of a buyer's request not to load a vessel (including payment of dead freight) does not necessarily confer a right on the buyer to refuse delivery. The prima facie measure of damages under s 52(3) of the Sale of Goods Act 1923 (NSW) applies to a seller of unascertained goods (iron ore to be mined and blended) without the seller needing to prove the cost of extraction and production; it is for the party seeking departure from the statutory rule to demonstrate circumstances making departure appropriate. Where a buyer's anticipatory refusal to accept delivery dispenses the seller from being ready and willing to perform, the seller need only show it would have been ready and willing absent the refusal, and this may be established by inference from prior course of dealing and unchallenged evidence of capacity.
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