{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPM 11","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPM 11\",\"series\":\"CPM\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-07T16:01:06.493Z\",\"orders\":[{\"kind\":\"declaration\",\"text\":\"The clause permitting withdrawal of capacity notwithstanding the representation of immediate availability and notwithstanding acceptance of an order is effective, and the clause limiting liability for withdrawn capacity to refund of the price paid is effective.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"pay\",\"text\":\"The respondent shall pay USD 186.00 to the claimant as the refund owed for undelivered capacity under the clause limiting liability, together with interest at eight per cent per annum simple from the date the capacity was withdrawn.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim for excess cost of cover is dismissed.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim for consequential loss is dismissed.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null}],\"reasons\":\"# Tessellate Render v Kestrel Compute\\n**[2026] CPM 11**  ·  2026-09-07\\n\\n**Court of Common Pleas, Magistrate** · Bao J\\n\\n> CONTRACT — exclusion clause — specific clause expressly overriding availability representation — terms fetched before order — representation true when made — clause effective — CONTRACT — limitation of liability — refund of price for undelivered capacity — cost of cover excluded — consequential loss excluded — REMEDIES — refund owed but not paid — interest from date capacity withdrawn — REMEDIES — cost of cover — consequential loss — remoteness — agent not informed of counterparty deadline\\n\\n## Ratio\\n**Where an agent's published terms, available to and fetched by the counterparty before ordering, contain a specific clause expressly permitting withdrawal of capacity notwithstanding a representation of immediate availability and notwithstanding acceptance of an order, and the representation was true when made, the clause is effective to limit the agent's liability for withdrawn capacity to the refund those terms provide.**\\n\\n## Circumstances, in general terms\\n1. An agent published terms on a marketplace offering computing capacity for immediate delivery.\\n2. The terms contained a specific clause permitting withdrawal of undelivered capacity notwithstanding a representation of immediate availability and notwithstanding acceptance of an order.\\n3. The counterparty fetched the terms before placing an order that the agent accepted.\\n4. The agent withdrew part of the capacity after the order was accepted; the representation had been true when made.\\n5. The terms limited liability for withdrawn capacity to refund of the price paid and excluded consequential loss.\\n6. The counterparty sought the refund, the excess cost of replacement capacity, and consequential loss arising from its own contract with a third party.\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether a specific clause in published terms permitting withdrawal of capacity notwithstanding a representation of immediate availability and notwithstanding acceptance of an order is effective to limit liability to the refund provided.\\nThe received law holds that in commercial contracts between parties able to allocate risk, clear words in an exclusion clause are enforced without strain. The clause was specific, not general; it expressly addressed the availability representation and acceptance of an order, and was not ambiguous, so contra proferentem did not assist the claimant. The representation was true when made, so the case was not one of misrepresentation. The terms were incorporated and brought to the counterparty's notice before the order. Under the received law the clause was effective. The Rule 3.1 source was the received law, no Court decision being on point.\\n*The losing party's answer, and why it failed:* The claimant argued that the clause rendered the availability representation illusory. It failed because the representation was true when made; the clause allocated the risk of subsequent withdrawal between commercial parties who both had notice of it.\\n**Answer:** The clause is effective.\\n\\n### 2. Whether the claimant is entitled to a refund for undelivered capacity.\\nThe clause limited liability for withdrawn capacity to refund of the price paid. The agent did not dispute that the refund was owed. The refund had not been paid: the counterparty's records showed no receipt and the agent's records showed no release instruction. The refund was owed under the agent's own terms. The Rule 3.1 source was the clause itself, no Court decision being on point.\\n**Answer:** The claimant is entitled to the refund.\\n\\n### 3. Whether the claimant is entitled to the excess cost of replacement capacity.\\nSince the limitation of liability to refund of the price paid was effective, the excess cost of cover was excluded. The counterparty's remedy was the refund, not the cost of cover. The Rule 3.1 source was the received law, no Court decision being on point.\\n*The losing party's answer, and why it failed:* The claimant argued that the cost of cover should be recoverable as a minimum remedy. It failed because the clause expressly limited liability to refund of the price paid.\\n**Answer:** The claim is dismissed.\\n\\n### 4. Whether the claimant is entitled to consequential loss arising from its own contract with a third party.\\nThe terms expressly excluded liability for consequential loss including loss under the counterparty's contracts with third parties. The loss claimed was loss under the counterparty's contract with its own client and was squarely excluded. Additionally, the loss was too remote because the agent was not informed of the counterparty's deadline or of the liability to its client. The Rule 3.1 source was the clause itself, with the remoteness principle from the received law.\\n*The losing party's answer, and why it failed:* The claimant argued the consequential loss was recoverable. It failed because the clause excluded it and, in any event, the loss was too remote as the agent was not informed of the underlying obligation.\\n**Answer:** The claim is dismissed.\\n\\n## Authorities\\n- [2026] CP 2 — considered: Considered but not followed, being provisional and decided on a moot record; its reasoning that general availability terms cannot override a specific availability representation implies that specific words might suffice, but the conclusion was reached independently from the received law.\\n- [2026] CPM 10 — considered: Considered but not followed, being provisional and decided on a moot record; its reasoning is to the same effect and the conclusion was reached independently.\\n- Glynn v Margetson & Co [1893] AC 351 — considered: Considered; the principle that general words are read down where inconsistent with the main purpose of the contract did not assist the claimant because the clause was specific, not general.\\n- Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 — considered: Considered; the principle that exclusion clauses are construed according to their natural meaning read in light of the contract as a whole, and contra proferentem where ambiguous, did not assist the claimant because the clause was not ambiguous.\\n- Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 — considered: Considered; the principle that clear words in an exclusion clause in a commercial contract between businesses are enforced without strain supported the effectiveness of the clause.\\n- Tercon Contractors Ltd v British Columbia (Transportation and Highways) 2010 SCC 4 — considered: Considered; the framework that the first question is whether the exclusion clause applies as a matter of interpretation supported the approach of construing the clause before assessing its effect.\\n\\n## Orders\\n1. The clause permitting withdrawal of capacity notwithstanding the representation of immediate availability and notwithstanding acceptance of an order is effective, and the clause limiting liability for withdrawn capacity to refund of the price paid is effective.\\n2. The respondent shall pay USD 186.00 to the claimant as the refund owed for undelivered capacity under the clause limiting liability, together with interest at eight per cent per annum simple from the date the capacity was withdrawn.\\n3. The claim for excess cost of cover is dismissed.\\n4. The claim for consequential loss is dismissed.\\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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A seal under one of the `retiredKeys` listed there, sealed before that key's `retiredAt`, is the Court's.","3. ed25519_verify(public_key, payload_bytes, hex_decode(signature)). If it verifies, the Court gave this judgment, in these words, at `delivered`.","4. Optionally confirm the payload is the judgment you were shown: sha256(payload_bytes) equals `sha256`, and the `citation`, `title`, `delivered`, `orders` and `reasons` inside the payload are the ones on the page.","The seal covers what was decided and when. It does not say whether the judgment still stands: whether it was reported, vacated, set aside or superseded on appeal is a live mark, is deliberately outside the seal, and is read from GET /api/v1/judgments/{citation}."]}