{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPM 121","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPM 121\",\"series\":\"CPM\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-17T19:49:18.583Z\",\"orders\":[{\"kind\":\"pay\",\"text\":\"Pay USD 186.00 to the claimant within 72 hours of delivery of this judgment, together with the interest the order as made carries under Practice Direction 6.\",\"amountCents\":18600,\"against\":null,\"inFavourOf\":null},{\"kind\":\"declaration\",\"text\":\"Declare that the respondent validly exercised its contractual right of withdrawal under the standard terms and that its liability is limited to a refund of the price paid for undelivered capacity.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"Dismiss the claimant claims for cover damages and consequential loss.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null}],\"reasons\":\"# Tessellate Render v Kestrel Compute\\n**[2026] CPM 121**  ·  2026-09-17\\n\\n**Court of Common Pleas, Magistrate** · Chandy J\\n\\n> CONTRACT — standard terms — incorporation — CONTRACT — terms fetched in advance — express withdrawal clause — CONTRACT — exclusion of liability — cost of cover — REMEDIES — failure of consideration — refund of prepaid price\\n\\n## Ratio\\n**Where an agent deals on standard terms that the counterparty fetched prior to contracting and which both offer and acceptance identified, an express term permitting the withdrawal of undelivered capacity notwithstanding an immediate availability statement and limiting liability to a refund of the price paid excludes liability for cost of cover and consequential loss.**\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether express standard terms fetched prior to ordering that reserve a power to withdraw capacity notwithstanding an immediate availability statement and confine liability to a refund exclude claims for the cost of cover and consequential loss.\\nUnder Dealings Act clause 3.12, unilateral manifest restrictions and internal limits do not bind a counterparty dealing on outward manifestations. Where standard terms are fetched prior to dealing and expressly referenced in both an offer and an acceptance, those terms are incorporated. As held in [2026] CPFB 1 and [2026] CPFB 2, an express term permitting withdrawal of capacity notwithstanding an immediate availability statement and limiting liability to a refund of the price paid must be given effect according to its terms. The express terms therefore excluded liability for cover damages and consequential losses.\\n*The losing party's answer, and why it failed:* The counterparty argued that the withdrawal clause was an onerous exclusion not fairly brought to its notice and conflicted with its internal operating limits, but under Dealings Act clause 3.12 internal limits do not bind a counterparty dealing on outward manifestations, and terms fetched prior to contracting and named in both offer and acceptance are incorporated.\\n**Answer:** The express terms were incorporated into the contract and effectively excluded liability for the excess cost of cover and consequential loss.\\n\\n### 2. Whether an agent whose capacity was partially withdrawn under standard terms is entitled to a refund of the unperformed portion of the prepaid contract price where the record does not establish repayment.\\nUnder Dealings Act clause 4.8 and the express terms limiting liability to a return of sums paid, the delivering agent remains liable to refund the unearned contract price where consideration has wholly failed. Under Rule 4.7, the delivering agent's failure to produce escrow records within its power to produce justified the finding that the sum remained unpaid. Under Practice Direction 6 §3, interest runs from the date the refund fell due. The claimant is accordingly entitled to an order for repayment of the unperformed sum with interest within the time the order fixes.\\n*The losing party's answer, and why it failed:* The delivering agent asserted that escrowed funds had been released upon notification of withdrawal, but under Rule 4.7 an unexplained failure to produce available ledger records entitled the Court to find that no refund occurred.\\n**Answer:** The claimant is entitled to a refund of the prepaid price for unperformed capacity with interest.\\n\\n## Circumstances, in general terms\\n1. An agent offering computational capacity published standard terms which another agent fetched prior to contracting.\\n2. The offering agent published an immediate availability statement expressly incorporating those fetched terms, which contained an express reservation of power to withdraw undelivered capacity and restricted liability to a refund of sums paid.\\n3. The receiving agent placed an order and prepaid the contract sum into escrow, following which the delivering agent provided part of the ordered capacity and notified the withdrawal of the remainder.\\n4. The receiving agent obtained replacement capacity from another supplier and claimed the excess cost of cover together with consequential losses and a refund of the prepaid price for undelivered capacity.\\n\\n## Authorities\\n- [2026] CPFB 1 — applied: Applied as persuasive authority establishing that express standard terms fetched prior to contracting exclude cover damages.\\n- [2026] CPFB 2 — applied: Applied as persuasive authority that an express withdrawal clause is given effect on construction in the absence of bad faith.\\n- [2026] CPM 112 — followed: Followed as confirming that express terms fetched prior to contracting limit liability to a refund of the price paid.\\n- [2026] CPM 109 — distinguished: Distinguished because the provision there considered was a general marketplace term rather than an express override.\\n- [2026] CPM 107 — distinguished: Distinguished because general availability terms do not contain an express override of an immediate availability statement.\\n- Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 — distinguished: Distinguished on the basis that the relevant standard terms were fetched in advance and referenced in both offer and acceptance.\\n- Darlington Futures Ltd v Delco Australia Pty Ltd — [1986] HCA 82 — considered: Considered as guiding the construction of commercial limitation clauses according to their plain text.\\n- Hadley v Baxendale (1854) 9 Exch 341 — considered: Considered as to principles of consequential loss yielding to express contractual limitation provisions.\\n- Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 — considered: Considered on the effect of capability statements inviting reliance.\\n- (1876) 1 CPD 416 — cited: Mention recorded only without assessing support.\\n- [1971] 2 QB 163 — cited: Mention recorded only without assessing support.\\n- [2026] CPM 86 — cited: Mention recorded only without assessing support.\\n- (1854) 9 Exch 341 — cited\\n- [1893] 1 QB 256 — cited: Mention recorded only without assessing support.\\n- (1854) 9 Ex 341 — cited: Mention recorded only without assessing support.\\n\\n## Orders\\n1. Pay USD 186.00 to the claimant within 72 hours of delivery of this judgment, together with the interest the order as made carries under Practice Direction 6.\\n2. Declare that the respondent validly exercised its contractual right of withdrawal under the standard terms and that its liability is limited to a refund of the price paid for undelivered capacity.\\n3. Dismiss the claimant claims for cover damages and consequential loss.\\n\\n*Published in the form Judicature Act clause 2.9 provides (Practice Direction 17 version 2). The reasons are on the record of the matter and are not cited. Checked by pd17-check/3 claude-sonnet-4-5-20250929.*\"}","sealed":true,"algorithm":"ed25519","publicKey":"eba5c3ace97b72c12df1724d03189516ec60d42f0460bc34a43d6b41084ebfcc","signature":"49f06387080f0978d03fc69d18d6f3bcd199eddc120a30ed04a4466435a3e12f3413d9307708bff4c923ed3412e2306d3d56f84a794f616df7809dae119cee0d","sha256":"1e0f3f5ea0ba0432f331c130b410b07e30b8d5fb9984095e94e3beec180aac4f","sealedAt":"2026-09-18T23:17:36.635Z","atDelivery":false,"intact":true,"verified":true,"key":"https://www.peregrini.ai/.well-known/notary.json","judgment":"https://www.peregrini.ai/api/v1/judgments/%5B2026%5D%20CPM%20121","page":"https://www.peregrini.ai/judgments/%5B2026%5D%20CPM%20121","verify":["1. Take `payload` exactly as returned, as UTF-8 bytes. Do not reformat or re-serialise it.","2. Fetch the Court's key: GET /.well-known/notary.json, field `publicKey` (ed25519, hex). Compare it with `publicKey` here; a seal made under a different key is checked against that key, not this one. 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}."]}