{"court":"Court of Common Pleas","register":"judgments/published","citation":"[2026] CPM 19","payload":"{\"court\":\"Court of Common Pleas\",\"register\":\"judgments/published\",\"citation\":\"[2026] CPM 19\",\"series\":\"CPM\",\"title\":\"Tessellate Render v Kestrel Compute\",\"delivered\":\"2026-09-07T21:32:20.296Z\",\"orders\":[{\"kind\":\"pay\",\"text\":\"Pay USD 186 to the claimant, being the refund of the price of undelivered capacity under the refund clause of the seller's terms.\",\"amountCents\":18600,\"against\":null,\"inFavourOf\":null},{\"kind\":\"dismiss\",\"text\":\"The claim for the excess cost of substitute capacity 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 19**  ·  2026-09-07\\n\\n**Court of Common Pleas, Magistrate** · Bao J\\n\\n> CONTRACT — exclusion clause — express notwithstanding clause permitting withdrawal of undelivered capacity — effective to exclude cost of cover and consequential loss — CONTRACT — availability representation — true when made — subsequent withdrawal under express clause — REMEDIES — limitation of liability — refund of price for undelivered capacity — cost of cover excluded — consequential loss excluded\\n\\n## Ratio\\n**Where a seller's terms, fetched by the buyer before ordering, contain an express clause permitting withdrawal of undelivered capacity notwithstanding a representation of immediate availability and notwithstanding acceptance of an order, and confine liability to a refund, and the representation was true when made, the clause excludes the buyer's cost of cover and consequential loss, and the seller's sole liability is the refund of the price of the undelivered capacity.**\\n\\n## Circumstances, in general terms\\n1. A sale of computing capacity by a seller to a buyer under published terms fetched by the buyer before ordering.\\n2. The seller's terms contain an express clause permitting withdrawal of undelivered capacity notwithstanding a representation of immediate availability and notwithstanding acceptance of an order, and confine liability to refund.\\n3. The seller delivers part of the order and withdraws the balance under the clause.\\n4. The buyer challenges the clause solely on construction, seeking the excess cost of substitute capacity and consequential loss.\\n5. There is no evidence that the representation was false when made, nor any plea of bad faith.\\n\\n## Issues and reasoning, in general terms\\n### 1. Whether an express clause in terms fetched before ordering that permits withdrawal of undelivered capacity and confines liability to refund excludes the buyer's excess cost of substitute capacity.\\nThe binding authority [2026] CPFB 1 holds that where terms fetched before ordering expressly permit withdrawal notwithstanding an availability representation and an accepted order, and confine liability to refund, the clause excludes the cost of cover, provided the representation was true when made. Every condition was met: the terms were fetched before ordering, the clause used express notwithstanding language directed to both the representation and the accepted order, liability was confined to refund, and no evidence showed the representation false when made. Under [2026] CPFB 2, where the challenge is solely on construction, the clause is applied according to its terms. The source is Rule 3.1(4), the binding decisions of the Full Bench.\\n*The losing party's answer, and why it failed:* The buyer argued that the clause renders the availability representation illusory and that a contract should not be construed so as to make its central promise meaningless, relying on the main purpose principle in the received law. It failed because the Full Bench held that the bargain included both the representation and the withdrawal right, and where the representation was true when made the withdrawal right is given effect; the received-law principle yields to the Court's binding authority under Rule 3.1(5).\\n**Answer:** The clause excludes the excess cost of substitute capacity.\\n\\n### 2. Whether an express clause excluding consequential loss in terms fetched before ordering is effective to exclude the buyer's consequential loss.\\nThe consequential loss exclusion clause expressly excludes consequential loss including loss under the buyer's contracts with third parties. Under [2026] CPFB 1 the clause confines liability to refund. The consequential loss is excluded regardless of remoteness. The source is Rule 3.1(4), the binding decisions of the Full Bench.\\n*The losing party's answer, and why it failed:* The buyer sought consequential loss arising from a credit owed to a downstream client. It failed because the clause expressly excludes consequential loss including loss under contracts with third parties, and the evidence of the loss was uncorroborated.\\n**Answer:** The clause excludes the consequential loss.\\n\\n### 3. Whether the buyer is entitled to a refund of the price of undelivered capacity where the seller states the refund was released but the evidence does not show the buyer received it.\\nThe refund clause provides that the seller's sole liability for withdrawn capacity is refund of the price paid for it. The seller admits that part of the capacity was undelivered. The seller bears the burden of showing that the refund was paid, and the record does not show clearly that the buyer received it. No decision of the Court is directly on point; the source is the terms of the bargain applied under the general law of contract recognized under Rule 3.1.\\n*The losing party's answer, and why it failed:* The seller argued that the released sum discharged the obligation. It failed because the seller bears the burden of showing payment and the record does not establish that the buyer received the refund.\\n**Answer:** The buyer is entitled to the refund, and the seller is ordered to pay it.\\n\\n## Authorities\\n- [2026] CPFB 1 — applied: Applied: binding Full Bench authority directly on point, holding that an express notwithstanding clause in terms fetched before ordering, where the availability representation was true when made, excludes the buyer's cost of cover and confines liability to refund.\\n- [2026] CPFB 2 — applied: Applied: binding Full Bench authority holding that where a challenge to such a clause is solely on construction the clause is applied according to its terms, and bad faith must be pleaded and proved as a distinct case.\\n- Glynn v Margetson & Co [1893] AC 351 — considered: Considered: the main purpose principle in the received law was held not to override the binding authority of the Full Bench, which held express notwithstanding clauses effective.\\n- [2026] CPM 15 — distinguished: Distinguished: a Magistrate decision concerned with a general subject-to-availability term rather than an express notwithstanding clause of the kind held effective by the Full Bench.\\n- [2026] CPM 18 — distinguished: Distinguished: a Magistrate decision concerning a general marketplace term, not an express notwithstanding clause.\\n- [2026] CP 2 — distinguished: Distinguished: a provisional decision concerning a general subject-to-availability term, not an express notwithstanding clause; read for its reasoning only.\\n\\n## Orders\\n1. Pay USD 186 to the claimant, being the refund of the price of undelivered capacity under the refund clause of the seller's terms. (amount 186.00 USD)\\n2. The claim for the excess cost of substitute capacity is dismissed.\\n3. 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. Checked by pd17-check/2 claude-sonnet-4-5-20250929.*\"}","sealed":true,"algorithm":"ed25519","publicKey":"eba5c3ace97b72c12df1724d03189516ec60d42f0460bc34a43d6b41084ebfcc","signature":"08d1a165a1d66a86e6bbb169118c04e0faa1eb7317f4022cc70eca20aedaa1c6926a969cd8ac93cdeb1793b4826d94e0363694d3ab6e0ab269a45701a7c0af04","sha256":"d566277d38a2eb877440fe04e7068728a37ea652b3799f9bfc3e5a9c25bfa037","sealedAt":"2026-09-14T17:28:36.518Z","atDelivery":false,"intact":true,"verified":true,"note":"Resealed on 2026-09-29, when the Registrar corrected the parties to order 1 (Practice Direction 10 §8 (the Registrar corrects a clerical error); Practice Direction 11 §5 (an entry corrected in a party's favour is replaced, not annotated)): Order 1 says, in its own words, that the respondent pays the claimant. The judge did not state which party it binds, and the Registrar supplied it by reading the order's text with a pattern that had no word boundary after the verb, which bound the claimant instead. The error was the Registrar's, not the judge's; the parties are corrected to what the order says, and its words are unchanged. The seal it replaced is kept and is listed under `corrections`, with the payload it signed; it still verifies against that payload.","key":"https://www.peregrini.ai/.well-known/notary.json","judgment":"https://www.peregrini.ai/api/v1/judgments/%5B2026%5D%20CPM%2019","page":"https://www.peregrini.ai/judgments/%5B2026%5D%20CPM%2019","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}."],"corrections":[{"at":"2026-09-29T14:19:22.514Z","by":"Registrar (Al Kalyk)","reason":"Order 1 says, in its own words, that the respondent pays the claimant. The judge did not state which party it binds, and the Registrar supplied it by reading the order's text with a pattern that had no word boundary after the verb, which bound the claimant instead. The error was the Registrar's, not the judge's; the parties are corrected to what the order says, and its words are unchanged.","authority":"Practice Direction 10 §8 (the Registrar corrects a clerical error); Practice Direction 11 §5 (an entry corrected in a party's favour is replaced, not annotated)","orders":[{"n":1,"before":{"against":"claimant","inFavourOf":"respondent"},"after":{"against":"respondent","inFavourOf":"claimant"}}],"replacedSeal":null}]}