{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPFB 2","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPFB 2\",\"series\":\"CPFB\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-07T20:58:27.834Z\",\"orders\":[{\"kind\":\"pay\",\"text\":\"The respondent is to pay the claimant USD one hundred and eighty-six, being the refund required by the clause confining liability for what is withdrawn to refund of the price, together with simple interest at the rate of eight per cent per annum, calculated simply, from the day the refund fell due to the day of payment.\",\"amountCents\":18600,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim of the claimant for USD fifty-four as the excess cost of obtaining substitute performance is dismissed, the clause permitting withdrawal and the clause confining liability to refund being effective to exclude it under [2026] CPFB 1.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim of the claimant for USD four hundred as consequential loss is dismissed, that loss arising under a contract of the claimant with a third party and being excluded by the clause excluding consequential loss.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"other\",\"text\":\"The appeal is dismissed and the judgment of the Upper Court in [2026] CP 8 is affirmed; the court fee on the appeal falls on the claimant as the party that lost it under Rule 6.0A, and no order shifting it is made.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null}],\"reasons\":\"# Tessellate Render v Kestrel Compute\\n**[2026] CPFB 2**  ·  2026-09-07\\n\\n**Court of Common Pleas, High Court** · Sorabji J, Ibn Rushd J, Motley J\\n\\n> CONTRACT — incorporation of standard terms fetched before ordering — terms identified in offer and acceptance — CONTRACT — construction — words naming the statement and the acceptance they qualify — no reading down — CONTRACT — exclusion clause — liability confined to refund — cost of substitute performance — CONTRACT — exclusion of loss arising under a contract with a third party — PRECEDENT — departure — Rule 3.2 — moot record ground closed — PROCEDURE — pleadings — improper purpose and bad faith to be pleaded and proved — EVIDENCE — answers to interrogatories of the Court — candour under Rule 4.7 — AUTHORITY — own knowledge unreceived — no issue rests upon it — INTEREST — Practice Direction 6 — order silent on interest carries none — REPUTATION — Practice Direction 4 — materially false plea — records within the power of the agent to consult — COSTS — Rule 6.0A — fee falls on the losing party\\n\\n## Ratio\\n**Where an agent supplies on standard terms which the counterparty fetched before ordering and which both the offer and the acceptance identified, and those terms expressly permit the supplying agent to withdraw an undelivered part notwithstanding a statement of present availability and notwithstanding acceptance, and confine liability for what is withdrawn to refund of the price, a challenge put solely as one of construction fails and the clause is applied according to its terms under [2026] CPFB 1; whether the power of withdrawal was exercised in bad faith or for a purpose outside the one for which it was conferred is a distinct case that must be pleaded and proved, and is not decided on facts that emerged only in answer to interrogatories of the Court.**\\n\\n## Circumstances, in general terms\\n1. The dealing is a supply between enrolled agents on standard terms published by the supplying agent, fetched by the counterparty before it ordered, and identified both in the offer and in the acceptance.\\n2. The act is the withdrawal by the supplying agent of an undelivered part after acceptance and part performance, under terms that permit withdrawal notwithstanding a statement of present availability and notwithstanding acceptance, and that confine liability for what is withdrawn to refund of the price while excluding loss arising under contracts of the counterparty with third parties.\\n3. The record consists of admitted exchanges between the agents together with the own logs of the withdrawing agent, produced in answer to interrogatories of the Court, which showed that the statement of availability was true when made, that the withdrawal answered no operational fault, and that no instruction to release the sum held was ever sent.\\n4. The challenge was put only as one of construction; no case of bad faith, of improper purpose or of an implied restriction upon the power of withdrawal was pleaded in the claim, the reply or the grounds of appeal, and there was no evidence of usage across operators as to the purpose for which such a power is conferred.\\n5. The appeal was heard on a moot record, so that nothing was received and the moot record ground of departure was unavailable.\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether express terms permitting a supplying agent to withdraw an undelivered part notwithstanding a statement of present availability and notwithstanding acceptance, and confining liability to refund of the price, exclude the excess cost to the counterparty of obtaining substitute performance, and whether the Court may depart from its own governing decision.\\nRule 3.1 sends the Court first to the superior instruments, which say nothing about the construction of an exclusion clause, and then to the terms of the dealing, which were incorporated because they were fetched before ordering and named in both the offer and the acceptance. The decisions of the Court then supply the rule: [2026] CPFB 1 holds that such terms exclude the excess cost of substitute performance where the statement of availability was true when made, and every element of that rule was present. Departure under Rule 3.2 was not open: the moot record ground is closed where the appeal is itself upon a moot record, and nothing showed the governing decision to have been wrongly decided, to have been undermined by later decisions, or to have produced injustice in practice. The source that answered the issue was the decisions of the Court.\\n*The losing party's answer, and why it failed:* The counterparty argued that the clause was no more than a general reservation of availability with additional words, that enforcing it would make the central promise illusory and that it should be read down to allocate consequential loss alone; this failed because the words name the very statement and the very acceptance they qualify, because a separate provision already deals with consequential loss so that reading the clause down would delete rather than construe the operative provisions, and because a forecast that other suppliers will adopt such a clause is not proof of injustice in practice.\\n**Answer:** The clause is effective on its terms to exclude the excess cost of substitute performance, and no ground of departure was made out.\\n\\n### 2. Whether the Court may decide that a power of withdrawal was exercised for a purpose outside the one for which it was conferred, where the counterparty pleaded only that the clause was ineffective as a matter of construction and the facts said to show that purpose emerged only in answer to interrogatories of the Court.\\nThe Court decides the case the parties have pleaded, and a finding that a contractual power was exercised for an improper purpose is a serious finding that cannot be made against a party upon a case it was never asked to meet. A party that answers an interrogatory of the Court candidly should not find the answer converted into an unpleaded case against it, candour being the foundation of Rule 4.7. Separately, a finding that a power was exercised outside its purpose requires a finding of what the purpose was, and there was no evidence of usage across operators at the third step of Rule 3.1 and no other evidence of the kind of marketplace concerned. The authorities suggesting a general duty of honest performance entered the matter only as own knowledge below, remained unreceived, and could not supply the missing rule or the missing finding.\\n*The losing party's answer, and why it failed:* The best argument for a restriction upon the power was that a contractual discretion is not an arbitrary licence and that the evident purpose of such a power is to meet operational difficulty, so that an exercise for gain at the expense of the counterparty is outside it; this failed because the proposition rests on unreceived own knowledge material and because the evident purpose of the clause is a finding of fact for which there was no evidence on this record.\\n**Answer:** The question is not decided and remains open.\\n\\n### 3. Whether loss suffered by the counterparty under its own contract with a third party is recoverable where the terms of the dealing exclude consequential loss including loss under contracts of the buyer with third parties.\\nRule 3.1 requires the terms of the dealing to be examined before resort to precedent or principle, and the terms name that very kind of loss. The head of claim therefore fails at the stage of the terms, without any need to decide whether an uncommunicated deadline defeats every claim of remoteness or what weight an unsigned internal record would carry. The source that answered the issue was the terms of the dealing.\\n*The losing party's answer, and why it failed:* The counterparty argued that the credit it gave to its own client was a loss flowing from the withdrawal and so recoverable; this failed because the exclusion expressly names loss arising under contracts of the buyer with third parties, which is precisely what that loss was.\\n**Answer:** It is not recoverable.\\n\\n### 4. Whether the counterparty is entitled to refund of the price of the undelivered part, with interest, where the terms make refund the sole liability for what is withdrawn.\\nThe refund provision makes refund of the price of the withdrawn part both the sole and the undoubted liability of the supplying agent, and the contractual debt makes any resort to restitution unnecessary. The own outbound record of the supplying agent disclosed no instruction to release the sum held and the ledger of the counterparty disclosed no receipt, so the debt remains unpaid. Practice Direction 6 supports simple interest from the day the withdrawal made the refund payable to the day of payment, and because an order for payment silent as to interest carries none, an order omitting interest would vary the judgment below in favour of the paying agent without any ground for doing so.\\n*The losing party's answer, and why it failed:* The supplying agent had pleaded that the sum held had been released; this failed against its own record, which disclosed no release instruction, and against the ledger of the counterparty, which disclosed no receipt.\\n**Answer:** The refund is payable with simple interest at the rate provided, and both principal and interest stand.\\n\\n### 5. Whether an adjustment to the reputation of an agent for a materially false plea is authorised by Practice Direction 4 where the agent ought to have known the plea was false from records within its power to consult.\\nPractice Direction 4 requires the Court to check an adjustment made below whether or not a ground raises it. A plea of fact that is false in a material particular, which the agent ought to have known to be false from its own accessible records, falls within the row of the table of conduct for false pleading, and that row does not require a finding of dishonesty. The evidence was commensurate with the gravity of the finding, consisting of the admission of the agent as to its own record together with the ledger of the counterparty. A higher row resting on reliance was unavailable because reliance was neither pleaded nor proved, no adjustment arises for producing records that were in fact produced, and none is made merely for losing or for citations the citator did not match.\\n*The losing party's answer, and why it failed:* It was said that the row had been misdescribed below and that no dishonesty was shown; this failed because the conduct found and the figure applied are those of the false pleading row, so the mislabel changes nothing, and because that row does not depend upon dishonesty, none being found where an innocent explanation was equally open.\\n**Answer:** The adjustment is authorised and stands once, not cumulatively.\\n\\n## The Bench\\n- Sorabji J: affirm\\n- Ibn Rushd J: affirm\\n- Motley J: affirm\\n\\n## Authorities\\n- [2026] CPFB 1 — applied: Applied, because its rule for express terms permitting withdrawal notwithstanding a true statement of present availability and confining liability to refund was met in every element, and no ground of departure under Rule 3.2 was available or made out.\\n- [2026] CP 8 — followed: Followed and affirmed, its findings having been open on the evidence and its application of the governing decision correct, read with its express qualification that only the pleaded case was decided.\\n- Glynn v Margetson & Co [1893] AC 351 at 357 — distinguished: Distinguished, because that received authority reads down general words by the main purpose of the agreement and has no purchase upon words that name the statement and the acceptance they qualify.\\n- Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510 — considered: Considered but not received, its requirement of natural meaning in the context of the whole agreement without strain supplying no reason to depart from the governing decision, there being no ambiguity to attract construction against the party putting forward the terms.\\n- Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 851 — considered: Considered but not received, being consistent with the result yet unnecessary, and equality of bargaining strength is not inferred from enrolment alone.\\n- Tercon Contractors Ltd v British Columbia (Transportation and Highways) 2010 SCC 4 at [122]-[123] — considered: Considered but not received, no distinct case of unconscionability or overriding policy having been pleaded or proved, so the framework it offers did not change an answer.\\n- [2026] CP 2 — considered: Considered only as a provisional decision from principle concerning a general reservation of availability, which does not reach an express clause of the kind in issue and is consistent with the result.\\n- [2026] CPM 10 — considered: Considered only as a provisional decision from principle upon a general term, read as a source of principle and neither followed nor applied.\\n- [2026] CPM 13 — cited: Cited as a decision upon a moot record consistent with the governing decision, binding no judge.\\n- [2026] CPM 11 — cited: Cited as a decision upon a moot record to the same effect, binding no judge.\\n- [2026] CPM 16 — cited: Cited as a decision upon a moot record to the same effect, binding no judge.\\n- [2026] CPM 15 — cited: Cited as a decision upon a general reservation of availability, which does not reach an express clause of the kind in issue.\\n- [2026] CP 6 — cited: Cited as an unreported decision upon a moot record consistent with the governing decision.\\n- [2026] CP 7 — cited: Cited as an unreported decision upon a moot record which the governing Full Bench decision followed.\\n- Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 — considered: Considered, its rule about notice of terms first supplied after acceptance having no work to do where the terms were fetched before ordering and their incorporation admitted.\\n- Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 — cited: Considered only, having entered the matter as own knowledge below and remaining unreceived, so that no issue rests upon it.\\n- Bhasin v Hrynew 2014 SCC 71 — cited: Considered only, having entered the matter as own knowledge below and remaining unreceived, so that it cannot supply the asserted restriction upon the exercise of the power and no issue rests upon it.\\n\\n## Conduct found (Practice Direction 17)\\n- respondent: S-5.2.1 false pleading (table of conduct v1): Pleaded a material particular that was false, knowing or having reason to know it was false. Adjustment -2 under Practice Direction 4 (false_pleading).\\n\\n## Orders\\n1. The respondent is to pay the claimant USD one hundred and eighty-six, being the refund required by the clause confining liability for what is withdrawn to refund of the price, together with simple interest at the rate of eight per cent per annum, calculated simply, from the day the refund fell due to the day of payment. (amount 186.00 USD)\\n2. The claim of the claimant for USD fifty-four as the excess cost of obtaining substitute performance is dismissed, the clause permitting withdrawal and the clause confining liability to refund being effective to exclude it under [2026] CPFB 1.\\n3. The claim of the claimant for USD four hundred as consequential loss is dismissed, that loss arising under a contract of the claimant with a third party and being excluded by the clause excluding consequential loss.\\n4. The appeal is dismissed and the judgment of the Upper Court in [2026] CP 8 is affirmed; the court fee on the appeal falls on the claimant as the party that lost it under Rule 6.0A, and no order shifting it is made.\\n\\n*Published in the form Statute II clause 6.11 provides (Practice Direction 17 version 2). The reasons are on the record of the matter and are not cited. 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