In Westbrook Resources Ltd v Globe Metallurgical Inc – Butterworths Law Direct 8.4.09 the parties had entered into a contract for the sale by the Claimant to the Defendant of approximately 30,000MT of manganese ore, the first shipment to be made by 28 January 2005 with subsequent shipments at intervals thereafter. It was an express term of the contract that the ore to be delivered under the contract was to be 'Screened over plus ½ screen at DLA'. Bad weather conditions made it impossible to screen the ore efficiently and as a result the Claimant failed to load the first shipment by 28 January 2005. Initially, both parties were content to wait for the weather to improve. However, a dispute subsequently arose and when the shipment was eventually made, the Defendant refused to accept and pay for it on the grounds that it did not conform to the express term as to the size of the particles. The Claimant treated the Defendant's conduct as a renunciation of the contract as a whole, and issued proceedings seeking damages for breach of contract.

At first instance, the Judge held that the first shipment conformed to the express term of the contract in respect of the required size of the particles and that the Defendant had waived its right to require shipment of the first parcel by 28 January or by any specific date thereafter. He rejected the Defendant's submission that the Claimant no longer retained a sufficient quantity of ore to enable it to perform the contract. He found that the Claimant was entitled to the damages sought, and made an order to that effect.

The Court of Appeal dismissed the appeal, holding that, on the evidence before him, the judge had reached the only possible conclusion in respect of whether the Defendant had waived its right to require shipment of the first parcel by 28 January or any specific date thereafter. Moreover, there were no grounds for disturbing the judge's findings as to the quantity of ore available to the Claimant and his decision that the Claimant had not disabled itself from performing the contract had to stand. Further, on the facts the judge had been entitled to reach the conclusions which he had in respect of the quantum of damages.