ashden trading pty ltd v. samartex timber & plywood co. ltd

BARBARA ACKAH-YENSU, JA This is an appeal against the judgment of the Commercial Division of the High Court sitting in Sekondi and dated 13th March, 2013.

A summary of the Plaintiff/Respondent’s case is that pursuant to a contract between the Parties, the Plaintiff/Respondent between July and December 2009, purchased five (5) containers load of plywood (Chenchen and Ceiba) from the Defendant/Appellant at a total cost of US$148,801.48 (AUD 183,705.55). Plaintiff/Respondent who required the goods for sale to the construction industry specifically indicated the quality grading of the goods to be B/BB and better grading.

They also provided specific additional requirements and/or specifications for each order.

It was the further case of the Plaintiff/Respondent that it was an implied condition of the said contract and the Defendant/Appellant thereby warranted that the goods would be of merchantable quality.

In breach of the contract and the said condition and warranty, the goods delivered by the Defendant/Appellant were not of merchantable quality but contained defects rendering same unmerchantable.

Also, the Plaintiff/Respondent claimed that in order to induce them to make and complete the said contract and pay the consideration thereof, Defendant/Appellant expressly undertook to treat the wood with appropriate dosage of FOSSECT 88 for protection against wood borers.

However, in breach of this express undertaking, the Defendant/Appellant negligently and/or fraudulently failed to do so thus rendering the wood mouldy and/or unfit for the intended purposes.

After repeated demands and the failure and/or refusal to  compensate for the losses incurred, the Plaintiff/Respondent sued for the following reliefs: “a. Recovery of the sum of U$213,700.87 AUD being special damages.

b. Interest on said U$213,700.87 AUD a the prevailing Bank rate from 1st January 2010 till date of final payment” The Defendant/Appellant denied Plaintiff/Respondent’s claim and alleged that the goods were produced in accordance with the contracts and that the Timber Industry Development Division of the Forestry Commission (TIDD) inspected and certified the goods before their export.

They also contended that Maersk Line, the shippers of the goods, did not receive any notification of damage to the containers.

In its judgment, the trial Court granted Plaintiff/Respondent’s claims as follows: “1. Recovery of the sum of US$213,700.87 AUD being special damages.

2. Interest on the said US$