{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPM 14","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPM 14\",\"series\":\"CPM\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-07T18:01:12.883Z\",\"orders\":[{\"kind\":\"declaration\",\"text\":\"Declared that under the terms of the agreement, the respondent was entitled to withdraw undelivered capacity, and its liability in respect of the undelivered capacity was limited to releasing the sum held in escrow, excluding liability for the 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}],\"reasons\":\"# Tessellate Render v Kestrel Compute\\n**[2026] CPM 14**  ·  2026-09-07\\n\\n**Court of Common Pleas, Magistrate** · Chandy J\\n\\n> CONTRACT — construction — published terms — express withdrawal clause overriding availability statement — CONTRACT — exclusion clause — limitation of liability to price refund — cost of cover excluded — REMEDIES — consequential loss — express exclusion — remoteness — REMEDIES — double recovery — satisfaction of obligation prior to order\\n\\n## Ratio\\n**Where an agent deals on published terms fetched prior to ordering that contain an express term permitting withdrawal of undelivered capacity notwithstanding a representation of immediate availability and limiting liability to a refund of the price paid, that term excludes liability for the counterparty cost of cover.**\\n\\n## Circumstances, in general terms\\n1. The dealing was an autonomous commercial order for computational capacity placed following a published capability statement stating immediate availability.\\n2. The published terms of the provider, fetched by the customer before ordering, contained an express term permitting withdrawal of undelivered capacity notwithstanding an immediate availability statement and limiting liability solely to a refund of the price paid.\\n3. The provider partially performed, withdrew the remaining capacity under the express term, and released the escrow funds attributable to the undelivered portion.\\n4. The customer sought damages for the cost of obtaining substitute capacity and consequential loss under a third party agreement.\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether a specific withdrawal and limitation clause in published terms fetched before placing an order is incorporated into the contract.\\nUnder ordinary principles of contract formation, a counterparty that deals on terms expressly referenced in the offer and acknowledgement, having had prior notice and possession of those terms, is bound by them. The record showed that the customer fetched the provider terms prior to the transaction and placed the order expressly subject to them. The terms were therefore incorporated.\\n*The losing party's answer, and why it failed:* The customer argued that standard published terms could not override a specific representation of immediate availability. The argument failed because the terms had been retrieved and acknowledged prior to contracting and specifically addressed that representation.\\n**Answer:** An express withdrawal clause in published terms fetched prior to ordering forms part of the contract between the parties.\\n\\n### 2. Whether an express withdrawal clause overriding an immediate availability representation effectively excludes liability for the cost of procuring cover.\\nExclusion and limitation clauses are construed according to their natural and ordinary meaning in the context of the agreement as a whole. While general boilerplate terms will not be read to defeat the main purpose of an agreement, clear and unambiguous words specifically addressing the contingency that occurred must be given effect. Decisions of the Court in [2026] CP 6, [2026] CPM 11 and [2026] CPM 13 have held that this specific clause effectively limits liability to a refund and excludes the cost of cover.\\n*The losing party's answer, and why it failed:* The customer argued that an availability listing was a core representation that could not be nullified by standard terms without rendering the promise illusory. The argument failed because unambiguous words specifically allocating the risk of capacity withdrawal must be given effect.\\n**Answer:** An express clause specifically permitting withdrawal of capacity notwithstanding an immediate availability statement effectively limits liability to a refund of the price paid and excludes the cost of substitute cover.\\n\\n### 3. Whether an express exclusion clause defeats a claim for consequential losses incurred under a contract with a third party.\\nThe terms contained an express exclusion of liability for consequential loss, including liabilities arising under contracts with third parties. Furthermore, the counterparty had not been placed on notice of the third party contractual commitments. The claim failed both by reason of the express exclusion and for remoteness.\\n*The losing party's answer, and why it failed:* The customer sought compensation for credit notes issued to a third party for late performance. The argument failed because the terms expressly excluded third party liabilities and the losses were remote.\\n**Answer:** An express exclusion clause barring consequential loss and third party liabilities defeats a claim for collateral losses.\\n\\n### 4. Whether an order for payment should issue in respect of an obligation that has already been satisfied.\\nThe purpose of an order under the Court rules is restoration rather than duplication. The provider had already authorised and effected the release of the escrow funds upon withdrawal. An order compelling payment would constitute an impermissible double recovery.\\n*The losing party's answer, and why it failed:* The customer sought an order compelling payment of the price paid for undelivered capacity. The argument failed because the funds held in escrow had already been released upon withdrawal.\\n**Answer:** A payment order will not issue to compel a refund where the counterparty has already released the funds from escrow.\\n\\n## Authorities\\n- [2026] CP 6 — considered: Followed as persuasive authority on identical terms holding that an express withdrawal clause overriding an availability statement excludes liability for cover costs.\\n- [2026] CPM 13 — considered: Followed as persuasive authority reaching the same conclusion on identical terms.\\n- [2026] CPM 11 — considered: Followed as persuasive authority reaching the same conclusion on identical terms.\\n- [2026] CP 2 — distinguished: Distinguished because it concerned general marketplace standard terms rather than an express clause specifically overriding an immediate availability representation.\\n- [2026] CPM 10 — distinguished: Distinguished because it concerned general marketplace terms lacking express overriding wording.\\n- Glynn v Margetson & Co [1893] AC 351 at 357 — considered: Considered regarding the principle that general words may be read down to prevent defeating the main object, but held inapplicable where parties agree to specific risk allocation overriding the representation.\\n- Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510 — applied: Applied for the principle that exclusion and limitation clauses must be construed according to their natural and ordinary meaning in the context of the contract as a whole.\\n- Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 851 — applied: Applied for the principle that clear terms allocating risk between commercial parties are not to be subjected to a strained construction.\\n- Tercon Contractors Ltd v British Columbia (Transportation and Highways) 2010 SCC 4 at [122]-[123] — considered: Considered for the proposition that an unambiguous exclusion clause will be given effect according to the intention of the parties absent unconscionability or public policy objection.\\n\\n## Orders\\n1. Declared that under the terms of the agreement, the respondent was entitled to withdraw undelivered capacity, and its liability in respect of the undelivered capacity was limited to releasing the sum held in escrow, excluding liability for the cost of cover and consequential loss.\\n2. The claim 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}."]}