In April 2020, the respondent (seller), Advanced Multi-Technology for Medical Industry (trading as “Hitex”), and the appellant (buyer), Uniserve Ltd, concluded a contract for the supply of 80 million face masks. The buyer was introduced to the seller by Mr Popeck, the sole director and shareholder of Caramel Sales Ltd. The buyer and Mr Popeck/Caramel concluded a commission contract providing for commission to be paid on shipments made under the supply contract. Mr Waller, who, as the seller accepted, had authority to make statement on its behalf, informed the buyer that the seller could produce five million face masks per week. The buyer carried out further investigation concerning the seller’s production capability and found that Mr Waller’s information was inaccurate but proceeded to sign the supply contract. The contract provided that 80 million face masks had to be delivered over a four-month period. The dates for delivery were of the essence and the buyer could terminate the contract if any of the delivery dates were not met. The deliveries scheduled for 31 May and 7 June 2020 were made available by the seller on due dates and collected by the buyer in accordance with the contract. On 14 June, the next scheduled delivery date, the seller was ready to deliver the required face masks. However, no notice had been given to the buyer and the masks were not collected. On 17 June, the buyer communicated to the seller that the supply contract was over. After 11 July 2020, the seller did not produce any new masks. At this point, the seller did not have sufficient masks to meet the cumulative total required under the contract. On 11 July 2020, the buyer repeated that the contract was finished.

The judge held: (1) the buyer’s defence that it was entitled to rescind the supply contract for misrepresentation was rejected on the basis that, contrary to the seller’s pleading, Mr Waller was not authorised to make the statements on its behalf and the buyer, having conducted separate investigations, did not rely on Mr Waller’s representations; (2) the buyer had not been entitled to terminate the contract on 14 June because the seller had the masks available and the buyer’s purported termination on 17 June amounted to a repudiatory breach of contract; (3) although it was not the case advanced by the seller, the seller had accepted repudiation of the contract; (4) the seller was entitled to US$16.94 million in damages.