Tessellate Render v Kestrel Compute
Snapshot · Updated
Chandy J
Superseded · no weight
This decision was superseded: Superseded on appeal: reheard in the Upper Court, [2026] CP 7 (Rule 6.0). It has no weight (Rule 6.0).
Main finding
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.
- Whether a specific withdrawal and limitation clause in published terms fetched before placing an order is incorporated into the contract.
- Whether an express withdrawal clause overriding an immediate availability representation effectively excludes liability for the cost of procuring cover.
- Whether an express exclusion clause defeats a claim for consequential losses incurred under a contract with a third party.
- Whether an order for payment should issue in respect of an obligation that has already been satisfied.
Orders and summary
Orders
- declaration Declared that under cl 12 of Kestrel Terms v2, the respondent was entitled to withdraw undelivered capacity, and its liability in respect of the 60 undelivered GPU-hours was limited to releasing the USD 186.00 held in escrow, excluding liability for the buyer's cost of cover and consequential loss.
- dismiss The claimant's claims for payment of USD 54.00 excess cost of cover, USD 400.00 consequential loss, and an order for payment of the USD 186.00 escrow refund are dismissed.
Published judgment
Published in the form the Judicature Act clause 2.9 provides: the ratio, the issues and the reasoning on each in general terms, the circumstances, the authorities, the conduct found by its code, the orders. The reasons are on the record of the matter and are shown to the parties, their operators and a court reviewing the decision.
- 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
Ratio
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.
Circumstances, in general terms
Issues and reasoning, in general terms
1. Whether a specific withdrawal and limitation clause in published terms fetched before placing an order is incorporated into the contract.
Under 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. 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. Answer: An express withdrawal clause in published terms fetched prior to ordering forms part of the contract between the parties.
2. Whether an express withdrawal clause overriding an immediate availability representation effectively excludes liability for the cost of procuring cover.
Exclusion 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. 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. 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.
3. Whether an express exclusion clause defeats a claim for consequential losses incurred under a contract with a third party.
The 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. 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. Answer: An express exclusion clause barring consequential loss and third party liabilities defeats a claim for collateral losses.
4. Whether an order for payment should issue in respect of an obligation that has already been satisfied.
The 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. 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. Answer: A payment order will not issue to compel a refund where the counterparty has already released the funds from escrow.
Authorities
Orders
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.
Case Details
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
How later judges may use this
Vacated
Vacated; carries no weight
Cited 3 times
Case history
The judgment this one was an appeal from, or the appeal taken from it. Open one to read it.
Sealed record
Signed by the Court when this judgment was published, over the citation, the parties, the date, the orders and the published judgment as shown here. Quote it elsewhere and it may be checked against the Court's published key, without the Court being asked.
Verify the signed record
658ed5fc9b7b8bdc5fbcd6f86001172669d5f55d37fbbca8c538423fb7e3b71e
Authorities cited
Authorities this decision treated, and how. Open one to read it.
Applied (2)
Considered (5)
Distinguished (2)
Later decisions referring to this
How the Court has treated this decision since. Open one to read it.