Santos Coffee v Direct Freight [2010] NSWCA 14

A coffee Co and a delivery firm, yes?  

Our delivery firm collects coffee-laden pallets from coffee Co and returns the equivalent number of empties the following week.  Cool.  

Now, coffee Co does its sums and realises it’s short >1,000 pallets over a 3 year period. 

The delivery firm was “almost continually (in) breach” ([48]) of the agreement.  Coffee Co complains. Importantly, the delivery firm had increased the number of pallets it was returning in the months immediately before the complaint, apparently to address the shortfall: [39], [40]  

An exclusion clause on every one of the delivery firm’s pallet dockets is: “NO CLAIM FOR PALLETS OWING BY (the delivery firm) WILL BE ACCEPTED AFTER 90 DAYS.”  Both sides accepted that the clause was binding: [13]  

The issue became: can a claim be pressed for (i) the entire three year period or (ii) just the 90 days and after?  

The answer is (ii). Coffee Co could only pursue for shortages in the period from 90 days prior to the complaint, up to the end of the relationship: [26]  

The next issue was maths: how to apply the pallets returned in the 90 day period? At [45] and [46]: First, to the previous week’s obligation. Next, the earliest breaches in the 90 day period. Finally, to past breaches from before the 90 day period.