Clark v Macourt [2013] HCA 56

HIGH COURT OF AUSTRALIA

HAYNE, CRENNAN, BELL, GAGELER AND KEANE JJ

ANNE CLARK APPELLANT

AND

DAVID MACOURT RESPONDENT

Clark v Macourt [2013] HCA 56 18 December 2013 S95/2013

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 9 November 2012, 13 December 2012 and 24 December 2012 and, in their place, order that:

(a) the appeal to that Court be dismissed with costs;

(b) the cross-appeal to that Court be allowed in part with costs; and

(c) paragraph 3 of the order of the Supreme Court of New South Wales made on 8 November 2011 be set aside and, in its place, order that, subject to paragraph 5 of that order and subject to all costs orders already made in the proceedings, David Macourt pay Anne Clark's costs of the proceedings in that Court on and after 30 May 2009 on an indemnity basis and otherwise on the ordinary basis.

On appeal from the Supreme Court of New South Wales

Representation

D F Jackson QC with A R R Vincent and L M Jackson for the appellant (instructed by Norton Rose Fulbright Australia)

C M Harris SC with H Altan for the respondent (instructed by Redmond Hale Simpson)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Clark v Macourt

Contract – Damages – Vendor of business failed to deliver assets compliant with warranty – Purchaser bought compliant assets from alternative supplier – Purchaser used compliant assets in business and charged fee covering costs of buying them – Whether damages measured by reference to amount purchaser was unable to recoup in using assets in business or by reference to cost of buying compliant assets at date of breach – Whether purchaser mitigated loss by charging fee covering costs of buying compliant assets.