Where the appellants and respondents entered an agreement (the Agreement) where the first applicant (the Supplier) agreed to supply a minimum amount of cement products to the first respondent (the Purchaser) over a stipulated period. Under cl 7 of the Agreement, if the Purchaser gave the Supplier a “Pricing Notice” setting out “Market Pricing Evidence” that provided for a price payable by the Purchaser for a cement product lower than the prevailing price under the Agreement, the price payable for that product was from the date of the notice reduced to the lower price unless within 20 business days the Supplier gave notice that it elected to suspend supply of products, in which event the Purchaser’s obligations under the Agreement would be suspended for a stipulated period.

The trial judge accepted the Supplier’s argument that the quotation did not conform with paragraph (1) of the definition of Market Pricing Evidence in cl 7.1 because the quoted price was for the supply of cement commencing two months after the date the notice was given. In this appeal the Purchaser contended that the trial judge erred by implying into cl 7.1(1) an unexpressed requirement that the offer or quotation provide for the immediate commencement of supply.

David Chesterman (with J McKenna QC) appeared for the appellants, instructed by Norton Rose Fulbright.

The judgment is published here.