Pass Creek Enterprises Ltd. v. Kootenay Custom Log Sort Ltd., (2003) 188 B.C.A.C. 110 (CA)

• Judge: Saunders, Thackray and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 24, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 188 B.C.A.C. 110 (CA);2003 BCCA 580

Pass Creek v. Kootenay Custom (2003), 188 B.C.A.C. 110 (CA);

    308 W.A.C. 110

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. NO.031

Pass Creek Enterprises Ltd. (respondent/plaintiff) v. Kootenay Custom Log Sort Ltd. (appellant/defendant)

(CA030165; 2003 BCCA 580)

Indexed As: Pass Creek Enterprises Ltd. v. Kootenay Custom Log Sort Ltd.

British Columbia Court of Appeal

Saunders, Thackray and Hollinrake, JJ.A.

November 3, 2003.

Summary:

The parties contracted for the sale of logs. The vendor sued the purchaser for breach of contract.

The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. Uned. 440, allowed the action and assessed dam­ages. The purchaser appealed.

The British Columbia Court of Appeal allowed the appeal and remitted the issue of damages, on the specification issue, to the trial court.

Contracts - Topic 2168

Terms - Incorporation by reference - Interpretation of terms incorporated - [See Sale of Goods - Topic 526 ].

Sale of Goods - Topic 526

The contract - Essential terms - Quality of goods - Kootenay purchased logs from Pass Creek - The log purchase agreement contained Kootenay's specifications - Kootenay also sent specification sheets to Pass Creek - Pass Creek alleged that Kootenay breached the contract by refusing to pay for logs which Kootenay claimed did not meet its specifications - The Brit­ish Columbia Court of Appeal held that the specification sheets were sent to Pass Creek before the agreement's execution, were referred to in the agreement and were incorporated by reference into the agree­ment - The log quality provisions of the incorporated specifications were not en­tirely inconsistent with the lumber grading references in the agreement - They par­ticularized the quality requirements - Kootenay could rely on them in refusing to pay for logs not meeting those specifica­tions - See paragraphs 7 to 18.

Sale of Goods - Topic 528

The contract - Essential terms - Quantity of goods - Kootenay agreed to purchase logs from Pass Creek - The British Columbia­ Court of Appeal affirmed that the term "estimated volume" in the log pur­chase agreement required Kootenay to purchase more than 4000 cubic metres of logs - See paragraphs 4 to 6.

Cases Noticed:

Adamastos Shipping Co. v. Anglo-Saxon Petroleum Ltd., [1959] A.C. 133; [1958] 1 Lloyd's Rep. 73 (H.L.), refd to. [para. 15].

Counsel:

M.A. Koochin, for the appellant;

J.M. Hogg, Q.C., for the respondent.

This appeal was heard before Saunders, Thackray and Hollinrake, JJ.A., of the Brit­ish Columbia Court of Appeal, at Kelowna, British Columbia, on September 24, 2003. The decision of the court was delivered at Vancouver, British Columbia, on November 3, 2003, by Saunders, J.A.