Consequently, Iceland Drilling was only able to recover $46,444 from Summit, and was prevented from pursuing alternative claims for damages in tort and under the Sale of Goods Act.
The Declaration stated:
Declaration: I the undersigned, referred to herein this Application for Credit Account as ‘the Customer’, have read the Terms and Conditions of Trade set out over page and agree that those terms and conditions form an Agreement between the Customer and Summit Hydraulic Solutions Ltd, herein this Agreement referred to as ‘the Company’ and ‘Summit’.
The Court held:
[33] The legal position is therefore clear. Iceland Drilling bound itself to Summit’s terms and conditions as soon as Mr Gudmundsson signed a declaration stating that he had read the terms of trade and agreed that those terms formed an agreement between the parties. I am unable to accept Mr Temm’s submission that the partially completed credit application form amounted to a contractual offer on different terms than those stipulated in the application form. That submission is completely inconsistent with Mr Gudmundsson signing the declaration. By signing the declaration, Mr Gudmundsson clearly communicated to Summit the following statement: “I have read the terms and conditions of trade and agree that those terms and conditions form an agreement between Iceland Drilling and Summit”. That is a perspicuous statement of contractual intention. There would need to be strong evidence of a contrary intention to displace the declaration’s plain meaning. In my view, Iceland Drilling has not adduced such evidence.
The Court addressed the fall back argument of Iceland Drilling as follows:
[40] I turn now to Mr Temm’s secondary argument that the nature of the exclusion clause was such that Iceland Drilling’s attention had to be expressly drawn to it. There is authority to suggest that in exceptional cases, where the contractual term in issue is unusually onerous, a higher degree of notice may be required. In Spurling Ltd v Bradshaw, Denning LJ said of some clauses he had seen that they “would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient”. I am not aware, however, of any case where this rule has been applied in favour of a commercially astute plaintiff who has signed a document and thereby agreed to its terms.
Comment
This decision confirms the reluctance of Courts to strike down a limitation clause in the context