La Rosa v Nudrill Pty Ltd

[2013] WASCA 18

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Incorporation of terms
3. › Course of dealing
4. › Exclusion clause on reverse of invoices
5. › Whether term must be in contractual document
6. › Whether document must be sent prior to or at time of formation
7. › Whether term must be incorporated in at least one prior contract
8. › Whether actual knowledge of term required
1. Contract
2. › Incorporation of terms
3. › Course of dealing
4. › Post-contractual documents
5. › Invoices sent after performance
6. › Whether reasonable person would expect contractual terms in invoice for completed work
1. Tort
2. › Negligence
3. › Breach of duty of care
4. › Carriage of goods
5. › Whether reasonably open on evidence to find excessive speed
6. › Inference from circumstantial evidence
1. Bailment
2. › Bailee for reward
3. › Onus of proof
4. › Whether bailee discharged onus of disproving negligence

Quick Take

It is not an essential pre-condition to incorporation of a term by prior course of dealings that the term was incorporated in at least one prior contract, or that the document containing the term was sent prior to or at the time of formation of the prior contracts. However, post-contractual invoices sent after performance, where the parties' consistent practice was to contract orally, are unlikely to provide a sufficient foundation for incorporation of terms by course of dealing, particularly where there is no actual knowledge of the terms and the transactions are not sufficiently numerous or frequent.