The Supreme Court has dismissed Irish Asphalt Limited’s appeal over whether its terms and conditions formed part of contracts to supply aggregate to Noreside Construction Limited for a housing project in Finglas.
The appeal concerned the terms of the supply arrangements, not a final decision on liability for defective material. Irish Asphalt sought to rely on a clause limiting its liability for defective goods to the cost of replacement and excluding other losses.
Noreside’s project for Dublin City Council involved 52 houses and 31 senior-citizen units at Griffith Avenue, Finglas. The parties agreed supply terms in March 2003, including prices, 60-day credit and a fixed price for the project. Aggregate was delivered from March 2003 until May 2005. Each delivery docket stated that the material was sold subject to terms and conditions available on request, and was signed by a Noreside employee or haulier.
The High Court had found that Noreside’s purchase-order terms and Irish Asphalt’s terms were not part of the supply contract. It also found an implied condition of merchantable quality under the Sale of Goods Act. Irish Asphalt appealed only the finding that its own terms had not been incorporated.
The Supreme Court held that the parties made a master agreement on 26 March 2003, followed by separate contracts for individual deliveries on the master agreement’s terms. The delivery dockets recorded the amount and type of aggregate supplied and whether it was collected or delivered. They did not set out prices or identify Irish Asphalt’s terms, and the Court found they were administrative records rather than documents intended to make or vary contracts.
The Court also rejected Irish Asphalt’s arguments that the docket wording gave reasonable notice, incorporated the terms by reference, or established a course of dealing. Noreside had never been given the terms, and the dockets did not identify them by name or refer to known industry terms. The Court said the evidence did not establish a sufficiently well-known and certain industry custom that would make a liability limit part of the contracts without an express term.
The Court therefore concluded that Irish Asphalt’s terms were not incorporated into the supply contracts and dismissed the appeal. The ruling addressed incorporation of contract terms; it did not determine the ultimate liability, if any, for the defective aggregate or the claims arising from its use.