Home | Cases | Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd


Key information

Court of Appeal (Victoria)

Appeal from
Pacific Dunlop Ltd v Maxitherm Boilers P/L & Pacific Dunlop Insurances [1996] VicSC 387 (23 August 1996)

Battle of the forms

AustraliaMaxitherm Boilers Pty Ltd v Pacific Dunlop Ltd

[1998] 4 VR 559


Maxitherm submitted a quote to PD for intallation of an autoclave (steriliser), expressed to be on attached terms and conditions – but without an attachment.  Subsequently a fax was sent to PD saying it would be on Maxitherm’s standard terms.  PD then orally accepted the quote.  Discussions then took place concerning specifications and Maxitherm sent their standard terms to PD.  PD then prepared an amended purchase order and sent it with 25% of the price; the order contained no terms bar one of Maxitherm’s standard terms.  The autoclave was manufactured and installed but then exploded, causing damage to PD’s premises.  PD sued for damages caused and Maxitherm sought to rely on an exclusion clause in its standard terms.

Held (Buchanan JA)

There was no concluded agreement when the first quote was sent (without attachment) - neither party ‘regarded the process is complete’.  It is necessary to consider the communications as a whole to determine whether a contract is formed and on what terms. PD’s ready acceptance of Maxitherm’s request for payment of deposit supported the conclusion there was no earlier concluded agreement (otherwise there was no necessity for payment of the deposit). The offer consisted of the original quotation, the confirming fax and the specifications and this was accepted by PD, despite the lack of clarity regarding the form that acceptance took; taken as a whole it was clear that an agreement had taken place.