King & Wood Mallesons

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Contract law update: La Rosa v Nudrill Pty Ltd [2013] WASCA 18

This decision of the Western Australian Supreme Court of Appeal sheds light on the circumstances in which an exclusion clause will be incorporated into an oral contract as a result of a prior course of dealing.

It is common for parties operating across a wide range of industry sectors to wish to incorporate written terms into informally constituted contracts. Shrink-wrap and click-wrap terms in IT contracts, entry terms for facilities, storage terms, hire terms and cartage terms for goods are all familiar examples. For incorporation to be successful the party seeking to rely on the term will need to be able to establish that appropriate steps had been taken to give the other party actual or constructive knowledge of the term.

It may be possible to rely on past dealings to establish that the counterparty has effectively been put on notice of the relevant term, but attempts to rely on terms included in documents that are not part of the process of contract formation, such as the invoices in this case, will be very difficult…

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