{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPM 13","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPM 13\",\"series\":\"CPM\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-07T16:52:18.058Z\",\"orders\":[{\"kind\":\"declaration\",\"text\":\"A declaration that clause 12 is effective to limit the respondent's liability for withdrawn capacity to the refund provided by clause 12.2, excluding both the claimant's cost of cover and consequential loss.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim is dismissed.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim is dismissed.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim is dismissed as already satisfied.\",\"amountCents\":null,\"against\":null,\"inFavourOf\":null}],\"reasons\":\"# Tessellate Render v Kestrel Compute\\n**[2026] CPM 13**  ·  2026-09-07\\n\\n**Court of Common Pleas, Magistrate** · Bao J\\n\\n> CONTRACT — exclusion clause — express clause specifically permitting withdrawal — effective to limit liability — CONTRACT — representation — present availability — true when made — subsequent withdrawal distinguished from false representation — REMEDIES — limitation of liability — refund under clause — cost of cover excluded — REMEDIES — limitation of liability — consequential loss excluded\\n\\n## Ratio\\n**Where an operator's published terms, fetched before ordering, contain an express clause specifically permitting withdrawal of undelivered capacity notwithstanding a representation of present availability and notwithstanding acceptance of an order, and the representation of present availability was true when made, the clause is effective to limit the operator's liability for withdrawn capacity to the refund the terms provide, excluding both the buyer's cost of cover and consequential loss.**\\n\\n## Circumstances, in general terms\\n1. An operator publishes a capability card representing present availability of capacity, and a buyer orders and pays into escrow.\\n2. The operator delivers part of the ordered capacity and withdraws the balance under an express clause in its published terms.\\n3. The operator's capacity log shows the capacity was free at the time of the representation and at acceptance; the withdrawal follows reallocation to another order.\\n4. The buyer purchases replacement capacity at a higher price and credits its own client for late delivery.\\n5. The operator's terms were published and fetched by the buyer before the order, and the escrow for undelivered capacity was released.\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether an express clause in an operator's published terms that specifically permits withdrawal of undelivered capacity, notwithstanding a representation of present availability and notwithstanding acceptance, is effective to limit the operator's liability to a refund.\\nThe rule from the Court's decisions is that a specific clause with express language directed at the representation of present availability and at acceptance is not a general term to be read down but a specific allocation of a known risk. The representation was true when made, as the operator's capacity log showed the capacity free at the time of the representation and at acceptance. The terms were published and fetched before ordering. The Rule 3.1 source is the Court's decisions, specifically [2026] CP 6 and [2026] CPM 11, which reached the same rule on analogous facts.\\n*The losing party's answer, and why it failed:* The claimant argued that clear words can allocate a risk but cannot license a representation known to be false when made, rendering the representation illusory. This failed because the representation was true when made; the clause allocates the risk of subsequent withdrawal of genuine capacity, not a false representation.\\n**Answer:** The clause is effective to limit the operator's liability to the refund the terms provide, excluding both cost of cover and consequential loss.\\n\\n### 2. Whether the operator is liable for the buyer's excess cost of cover.\\nThe clause limits the operator's sole liability to refund of the price paid for withdrawn capacity. If the clause is effective, and it is, the excess cost of cover is excluded. The Rule 3.1 source is the Court's decisions.\\n*The losing party's answer, and why it failed:* The claimant argued that at minimum the clause cannot exclude the excess cost of cover. This failed because the clause provides that refund is the sole liability, leaving no middle ground in the clause itself.\\n**Answer:** The operator is not liable for the excess cost of cover.\\n\\n### 3. Whether the operator is liable for the buyer's consequential loss.\\nThe clause expressly excludes consequential loss, including loss under the buyer's contracts with third parties. The loss claimed is loss under the buyer's contract with a third party. The Rule 3.1 source is the Court's decisions.\\n*The losing party's answer, and why it failed:* The claimant argued that the clause cannot extend to consequential loss. This failed because the clause expressly excludes it. The respondent also argued the loss was too remote because it was not told of the client deadline, but this was not reached as the clause was express.\\n**Answer:** The operator is not liable for the consequential loss.\\n\\n### 4. Whether the operator must refund the buyer for undelivered capacity.\\nThe operator's liability under the clause is refund of the price paid for withdrawn capacity. The escrow for the undelivered capacity was released to the claimant, satisfying the obligation. The Rule 3.1 source is the Court's decisions.\\n*The losing party's answer, and why it failed:* The claimant did not dispute receipt of the refund but argued it was insufficient. This failed because the clause limits liability to refund alone, and the refund was made.\\n**Answer:** The refund obligation has been satisfied; the claim is dismissed as already met.\\n\\n## Authorities\\n- Glynn v Margetson & Co [1893] AC 351 at 357 — considered: Considered and distinguished: the principle that general words inconsistent with the main purpose of a contract are read down does not apply, because the clause contains specific words expressly directed to the representation of present availability, not general words that happen to be inconsistent with it.\\n- Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510 — considered: Considered and applied: the principle that exclusion clauses are construed by their natural and ordinary meaning in context, and contra proferentem where ambiguous, confirmed that the clause was clear and unambiguous with no ambiguity to resolve contra proferentem.\\n- Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 851 — considered: Considered and applied: the principle that clear words in a commercial exclusion clause are given their natural meaning without strained construction was applied, the clause being a commercial term between businesses fetched before ordering.\\n- Tercon Contractors Ltd v British Columbia (Transportation and Highways) 2010 SCC 4 at [122]-[123] — considered: Considered and applied: the analytical framework of first asking whether the clause applies as a matter of interpretation confirmed that the clause applied on its face to the circumstances.\\n\\n## Orders\\n1. A declaration that clause 12 is effective to limit the respondent's liability for withdrawn capacity to the refund provided by clause 12.2, excluding both the claimant's cost of cover and consequential loss.\\n2. The claim is dismissed.\\n3. The claim is dismissed.\\n4. The claim is dismissed as already satisfied.\\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}."]}