FRANKIPILE PTY LTD v ACSAS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and McHuGH JJA 17 June 1988, 7 November 1988 [1988] NSWCA 46 CONTRACT — bare hire of crane — whether warranty or representation as to capacity upon which no question of principle involved. EVIDENCE — vital conversation between two witnesses one of whom unable to be found to give evidence at trial — no inference available under rule in Jones v Dunkel (1959) 101 CLR 298 — consideration of whether the evidence of only witness in the field should be scrutinised with the care reserved for testimony of those who have dealt with the dead and claim against their estates — Brown v Wylie (27 November 1980, unreported) per Powell J and Biro v The Union-Fidelity Trustee Co of Australia Ltd (13 December 1982, unreported) per Needham J referred to. EVIDENCE — discussion of consequence of failing to answer a letter where a reply might properly be expected, L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (1981-82) 150 CLR 225 per Gibbs CJ and Thomas v Hollier (1984) 156 CLR 152 per Gibbs CJ referred to. (at page 2) DAMAGES — mitigation — onus on defendant — Munce v Vinidex Tubemakers Pty Limited [1974] 2 NSWLR 235 applied — compensating benefit — British Westinghouse Co v Underground Railway [1912] AC 673; Jebsen v East and West Indian Dock Co (1875) LR 10 CP 300 and The World Beauty (1970) P 144 cited. ORDER Appeal dismissed with costs. Samuels JA I agree with the conclusions reached by Mahoney JA whose draft judgment I have had the opportunity of reading. I need not repeat all the facts which he has set out, but I add some reasons of my own out of deference to the arguments of Mr Sullivan and Mr Webber for the appellant. The first issue in the appeal was whether the learned judge, Freeman DCJ, was wrong to have concluded that the respondent did not represent to the appellant that the Crane, the subject of the hiring, had a line pull capacity of fifteen tonnes. The representation alleged was said by the appellant to have been made in a conversation between Mr McWhinnie for the respondent and Mr Von Skatulla for the appellant. Mr Von Skatulla could not be found at the time of the trial and did not give evidence. It was not suggested that his absence was such as to attract any adverse inference of the kind referred to in Jones v Dunkel (1959) 101 CLR 298. The finding which the judge made was challenged on four principal grounds. First of all, Freeman DCJ, it is said, appears to have rejected the existence of any representation about a capacity of fifteen tonnes on the ground that the defendant, that is the appellant, had not in its defence or cross claim pleaded any allegation to that effect. That view of the pleadings is incorrect because in paras 3 and 4 of the amended defence and in paras 4 and 5 of the amended cross claim the appellant claimed a condition or warranty or representation (the precise legal ground is not now to the point) to the effect that the crane would have a line pull capacity of up to fifteen tonnes or, alternatively, of at least fourteen tonnes. I should however make it plain that his Honour did not reject this part of the appellant's claim merely because, as he thought, it had not been pleaded. He did however comment upon the absence of the allegation as reinforcing, I would think, his conclusion that there was no "acceptable evidence from which I would 2 UNREPORTED JUDGMENTS infer that any representation higher than fourteen tonnes was made." In his careful analysis of the other aspects of the main factual dispute between the parties (concerning the question whether the crane did have a line pull capacity of fourteen tonnes, there being no question but that that capacity had been assured by the respondent) the learned judge evidently found Mr Whinnie's evidence acceptable. I do not consider that his Honour's mistake about the contents of the pleading is in the circumstances an error which requires intervention by this Court. However, the second point which the appellant takes is that because of the absence of Mr Von Skatulla for reasons beyond the appellant's control, thus leaving Mr McWhinnie in sole command of the testimonial field upon a crucial matter, the latter's evidence should have been scrutinised with the care given to the evidence of those who have dealt with the dead. The principle upon which the appellant relies was stated by Powell J in Brown v Wylie (27 November 1980, unreported) at 12 in terms which entail that evidence given against a deceased estate by a claimant who, in the circumstances, is the only one with any knowledge of the relevant facts "must be examined with care, even with suspicion, and should not be acted upon unless totally satisfactory." In Biro v The Union-Fidelity Trustee Co of Australia Ltd (13 December 1982, unreported) Needham J accepted "that a claim against a deceased estate must be looked at with care, as the deceased cannot tell his story." I do not doubt these principles, but remind myself that there is no rule of law that an uncorroborated claim against a deceased person will not generally be allowed. See Cross on Evidence 3rd Austn ed. para 8.30 and the cases there cited. Moreover, there are reasons why evidence against a deceased estate should be treated with a greater degree of reserve than the evidence of Mr McWhinnie in the present proceeding. A claim against a deceased estate is generally made by a claimant who knows at the time of instituting the proceeding that there can be no oral challenge to his or her testimony. In the present case there is no evidence that when the respondent commenced its claim for hiring charges and other expenses it anticipated that it would be met by a cross claim, the success of which depended very largely upon whether the cross claimant, that is the appellant, had available to it the evidence of Mr Von Skatulla, and that the respondent was then aware that Mr Von Skatulla was not available to give evidence. In the present case, therefore, an element of which the evidentiary rule about claims against deceased estates takes account, namely that the claimant may be taken to know that his or her version is the only one available, is absent. I do not think that the cautionary rule applies to the present case. Nonetheless, ordinary adjudicative common sense demands that the only available evidence should be scrutinised with care, with particular reference to internal inconsistencies and improbabilities. It is on this footing that the appellant next contended that Mr McWhinnie's evidence was so unsatisfactory that it should be rejected. It should be noted that the submission made, depending as it did upon the attempted application of the principle referred to in Brown and Biro, was that, unless the evidence in question was totally satisfactory, it should not be accepted. For the reasons I have already given, I do not accept that criterion. Looking at Mr McWhinnie's evidence in the printed record, it certainly seems to contain a number of apparent inconsistencies, and the way in which he sought to explain them away does not appear to me wholly convincing. However, there are none of the grounds present which would justify this Court in differing from the opinion of the trial judge who saw Mr McWhinnie and noted the variations in his evidence, but nevertheless concluded URJ FRANKIPILE PTY LTD v ACSAS PTY LTD (Samuels JA) 3 that his account of the conversation with Mr Von Skatulla was acceptable. In those circumstances I would not differ from the finding that Mr Von Skatulla inquired whether the crane would lift fifteen tonnes and received in return an assurance from Mr McWhinnie that its capacity was fourteen tonnes, a specification which Mr Von Skatulla then accepted as sufficient for his company's purposes. However, finally, the appellant points to a series of documents including internal memoranda of the respondent and letters passing between the respondent and the crane manufacturer, Hitachi Construction Machinery Co Ltd. These culminate in a letter from Hitachi which asserts that the respondent in its internal memorandum of 28 October 1982 and in subsequent letters had alleged that Hitachi had misstated that the line pull capacity of the crane was fifteen tons (sic) and that it was that it was this misstatement which had caused the difficulty which by then had arisen between the parties to the litigation. This letter from Hitachi ends by contending that the respondent was the author of its own embarrassment by having represented to the appellant that the crane had a line pull capacity of fifteen tons which was an "over specification" for which Hitachi was in no way responsible. The appellant then says that the respondent took no steps to answer this allegation and hence must be taken to have tacitly accepted its truth. There are, I think, two answers to this submission. First, I cannot ascribe to the material the construction which Hitachi put upon it. I can see nothing which suggests that the respondent charged Hitachi with having represented the capacity of the crane to be fifteen tonnes (or tons). Secondly, the learned judge accepted the evidence of a Mr Curnow, who was at the time the respondent's general manager, that although no written response had been made to Hitachi's allegation he could not concede that an oral response had not been made and that, in any event, in 1983, presumably after the last letter in this sequence which was dated 7 January 1983, a conference was held with representatives of Hitachi at which the whole question of the crane's capacity was discussed. Mr Curnow did not admit, indeed, according to the learned judge he positively denied, Hitachi's final allegation; and Freeman DCJ, in those circumstances, was not prepared to infer from the absence of any written reply a tacit admission of liability contrary to Mr Curnow's sworn evidence. The principle upon which the appellant relied is to be found in recent dicta in the High Court in L Shaddock and Assoc Pty Ltd v The Council of the City of Parramatta (1981-82) 150 CLR 225 at 230 where Gibbs CJ said, "The failure to answer a letter is not evidence of the truth of the statements in it unless the relation between the parties is such that a reply might properly be expected, as eg, where it is the ordinary practice of people to reply.."; and in Thomas v Hollier (1984) 156 CLR 152 at 157 where the same learned judge said, "The failure to answer a letter may amount to an admission if there are circumstances which render it more reasonably probable that a man who denied the assertions made against him in the letter would answer those assertions than that he would not... " In the circumstances of this case, and bearing in mind the findings of fact by the learned judge, I do not think it possible to apply those statements. Hitachi was a supplier of the respondent and it seems that a good deal of business was done between them, the respondent being, I would judge, more dependent upon Hitachi than the other way around. Hitachi's involvement, or possible involvement, I should say, could not have been any more than as a source of indemnity against any claim successfully made by the appellant. However, I can well understand that, as a matter of practical politics, the respondent would have been reluctant to implead Hitachi and, of course, the 4 UNREPORTED JUDGMENTS present proceeding was commenced by the respondent as plaintiff and the appellant raised its complaints about the specification of the crane by way of defence and cross claim. I do not therefore think that the learned judge was wrong in declining to infer some tacit admission of liability. Accordingly, I see no ground upon which his finding that the representation made extended only to a lifting capacity of fourteen tonnes can be successfully criticised. As to the question whether the crane did or did not possess a line pull capacity of fourteen tonnes, the evidence was lengthy and consisted largely of contending descriptions of tests carried out on the 25th, 26th and 27th October a few days after the period of hiring had commenced. It was then, according to the appellant, that the inadequacies of the crane for the job for which it was required were detected. His Honour determined this issue in favour of the respondent, preferring the evidence of Mr McWhinnie to that offered on the other side. Having read the evidence and the judgment I am quite unable to say that this is a case where the evident advantages which the learned primary judge had should be wholly or partially ignored and a view based only upon the written record substituted. However, there is a further matter which requires rather closer consideration. The appellant's case that the tests to which I have briefly referred demonstrated that the crane would not lift fourteen tonnes depended upon its ability to prove the weight of the individual items used to comprise the test load, consisting of a Kelly bar, a drilling bucket and a Franki hammer. These items were sent off in a semi-trailer to a neighbouring weighbridge and, by weighing the equipment with and without the items, two figures were obtained which would, by simple mathematics, produce the figure sought. But the weighbridge certificates had been lost. A Mr Watson, who was the General Manager Finance of the appellant was called to say that he had caused a search to be made of the company's records in an attempt to turn up the weighbridge certificates but without success. The methodology employed was that he had instructed the company's employees in Victoria (where these events occurred) to conduct a search of the company's own records and to get in touch with the transport company which was being used at the time asking its people to search their records. Neither search produced any result. His Honour admitted conditionally evidence of the weight of the various items in the form of a witness' recollection of the figures produced by deducting the weighbridge certificates showing tare weight from those showing all up weight. Ultimately, however, he came to the conclusion that the evidence of search was insufficient to admit secondary evidence of the weighbridge certificates on the footing that they were lost documents. In addition, I add, he was of the opinion that the secondary evidence which was offered was not evidence of the contents of the weighbridge certificates but rather of calculations based upon them. As to the first point, it has long been established law that the degree of search necessary to establish the loss of a document and to render admissible secondary evidence of its contents depends upon the nature of the document and the proof which it is required to yield. In Brewster v Sewell (1820) 3 B and Ald 297; 106 ER 672 Best J at 303 (674) expressed the matter thus, "It is very difficult to lay down any general rule as to the degree of diligence necessary to be used in searching for an original document, to entitle the party to give secondary evidence of its contents. That must depend, in a great measure, upon the circumstances of each particular case. If a paper be of considerable value, or if there be reason to suspect that the party not producing it has a strong interest which would induce him to withhold URJ FRANKIPILE PTY LTD v ACSAS PTY LTD (Samuels JA) 5 it, a very strict examination would properly be required; but if a paper be utterly useless, and the party could not have any interest in keeping it back, a much less strict search would be necessary to let in parol evidence of its contents." In the present case, these events and the abortive employment of the crane occurred in October 1982. The respondent commenced this proceeding in the District Court in 1983. Then, there was great delay and the case did not commence until 13 October 1986. However, I would have expected the appellant to have preserved these weighbridge certificates with care, since there is no doubt that the appellant repudiated the agreement by refusing to pay the agreed amount of hire or to perform any other of its terms. It was then very likely that the respondent would take proceedings to recover its money and that the appellant would be ready to meet such a claim by mounting a cross claim in proof of which the weighbridge certificates were necessary. However, there seems to be no suggestion that these documents were kept for the purpose I have suggested, and the evidence of Mr Watson is consistent only with the view that the search that he conducted was necessarily of the most general kind in the hope that something would turn up. Whether due inquiry and search was made is a question of fact. It is not invulnerable to review in these proceedings, since it hardly depends upon demeanour, it certainly did not in the present case, but I do not differ from the conclusion of the trial judge. His second point was well taken too, since there appears to have been no secondary record of the weighbridge certificates, but merely a recollection by the witness of calculations which were made at the time. For these reasons I do not consider that the learned judge's finding that the respondent had failed to make out its cross claim should be disturbed. Finally it was submitted that the respondent had failed to prove any relevant causal connection between "the appellant's alleged breach of contract and the loss of the hiring charges"; or, alternatively, that it failed to take reasonable steps to mitigate its damage. Further, it was contended that in any event the respondent had received a compensating benefit from the appellant's breach. It is clear, once the findings already discussed are made, that the appellant repudiated the hiring agreement and that the respondent accepted that repudiation and terminated the contract. Hence in the present action the respondent was entitled to recover damages for loss of its bargain rather than to claim the unpaid hiring charges as such for which, in terms, it appears to have sued. The appellant, in its amended grounds of defence, denied the claim for "rental" but did so in the context of an alleged rescission by the appellant in consequence of the respondent's misrepresentation or breach of condition concerning the crane's lifting capacity. However, at the trial the respondent's measure of damages was regarded by both sides (subject to the appellant's reservations about its recoverability) as including the weekly hiring charge for the nine weeks during which the crane would have been available for hire, that is, up to the time it was delivered to the buyer and thus left the respondent's possession. In my view, this represents the correct measure, which was the amount of any hiring charges unpaid as at the date on which the respondent accepted the appellant's repudiation, which was 30 October 1982, plus the value of the future instalments, discounted, if need be, for early receipt. Interoffice Telephones Ltd v Robert Freeman Co Ltd (1958) 1 QB 190, Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 and W and J Investments Ltd v Bunting and anor (1984) 1 NSWLR 331. It may be that at the trial attention was diverted for some reason from the fact that the respondent had terminated the contract in response to the appellant's repudiation and could not 6 UNREPORTED JUDGMENTS therefore found any claim upon it. It does not seem to me however that this is now of significance; and we should approach the matter as the parties did. In particular, in the circumstances discounting of future hiring charges may be ignored. I can see no ground for the conclusion that the respondent failed to establish the necessary causative link between the appellant's breach and the loss of its bargain. Indeed, this argument was supported by much the same considerations as were employed to make good the alleged failure to mitigate to which I now turn. The onus to prove mitigation is upon the defendant alleging it. See Munce v Vinidex Tubemakers Pty Limited [1974] 2 NSWLR 235 and the cases there cited. That was an action for damages for personal injury but I do not think that any different principle applies in the case of a breach of contract. Moreover, as Glass JA (with whom Moffitt P and Hutley JA agreed) pointed out at 239, the defendant's onus entails not only the introduction of evidence that the plaintiff has failed to minimise his loss but also the duty of persuading the tribunal of fact "that the balance of testimony favours this conclusion." Once again I can see no reason why the same principle should not apply in the instant case. The appellant argues that the evidence shows that the respondent made no attempt to let the crane to some other hirer because it was aware of the interest of the ultimate buyer, wished to have the crane on hand to show and demonstrate it, and did not want to let it out of the respondent's possession once the potential buyer seemed likely to close. But, of course, this does not mean that there was a market for the hire of a crane such as this. The evidence also establishes that the respondent was not really in the business of letting cranes. It was rather a seller of cranes, having an exclusive distributorship for three types of crane manufactured in Japan. It did hire cranes from time to time but, as Mr Curnow said, "...... It was not the norm, it was not the normal thing that happened." In my opinion, the appellant failed to offer evidence in support of its contention that the respondent had failed to mitigate its loss. Furthermore, even if there had been proof of a market in which the respondent could have let the crane, but that by doing so it would have run the risk of losing the sale, I would have been inclined to think that the principles regarding mitigation would not have compelled such a sacrifice. But it is unnecessary to determine that matter. The final point is that the respondent received a compensating benefit as a result of the appellant's breach, being the accelerated receipt of the purchase price of the crane. I think that the answer to this is simply, once again, that there is no evidence which is capable of grounding the argument. The rules about the obligation of a plaintiff to bring to account avoided loss depend upon the existence of some benefit obtained by the plaintiff in the course of mitigating its loss. This is the principle for which British Westinghouse Co v Underground Railway [1912] AC 673 is usually cited as the authority, and see also Jebsen v East and West Indian Dock Co (1875) LR 10 CP 300 and The World Beauty (1970) at 144. In the present case the benefit, which is said to represent the loss which the respondent was able to avoid, namely the receipt of the purchase money of the crane before it would have been received in the ordinary course had there been no breach of this contract, did not arise at all out of anything done or attempted by the respondent in mitigation. All that happened was that by reason of the breach the respondent had the opportunity to dispose of the crane and did so on the terms then agreed, which might or might not have been the same had the appellant performed the contract. URJ FRANKIPILE PTY LTD v ACSAS PTY LTD (Mahoney JA) 7 T also would dismiss the appeal with costs. Mahoney JA On 19 October 1982 the plaintiff Acsas Pty Ltd hired a crane to thedefendant Frankipile Australia Pty Ltd for a period of ten weeks from 20 October 1982 at a fee of $2500 per week. The defendant returned the crane to the plaintiff on 4 November 1982. It did so because, as it claimed, the crane was not what it had been told it was, viz, a crane with a line pull capacity of up to fifteen tonnes. The plaintiff sued the defendant for damages, claiming damages in respect of the repair of damage done to the crane whilst in the possession of the defendant, transport charges and the hiring charges for the whole of the period of ten weeks. The hearing of the proceeding took place before his Honour Judge Freeman in the District Court over a period of some seven days. His Honour gave judgment for the plaintiff for $57,514.34. The defendant has appealed to this Court against his Honour's judgment. There was no serious disagreement as to the basic facts. It was accepted that a hiring for ten weeks had been made and that the hiring charges were as claimed by the plaintiff. Mr Sullivan, for the defendant, confined his submissions to three things. First, he submitted that the plaintiff had told the defendant that the line pull capacity of the crane was fifteen tonnes, that that was a condition or warranty of the contract, and that the defendant was entitled to relief accordingly, by way of defence or cross-claim. Second, he submitted, alternatively, that the plaintiff had told the defendant that the line pull capacity of the crane was fourteen tonnes, that that was a condition or warranty of the contract, and that, for breach of it, the defendant was entitled to relief by way of defence or cross-claim. And, third, he submitted that the learned judge had erred in assessing damages. The appeal may be determined by reference to these three matters. 1. Did the plaintiff say that the crane had a line pull capacity of fifteen tonnes? The plaintiff conceded that it had told the defendant that the crane had a line pull capacity of fourteen tonnes but denied that it had said it had a capacity of fifteen tonnes. The learned judge held that the defendant had not pleaded a capacity of fifteen tonnes. Before this Court, it was accepted by both parties that, in the defence and cross-claim filed by the defendant, reliance was placed upon a claim that the defendant was told the capacity was fifteen tonnes or up to fifteen tonnes. But, notwithstanding what he had said as to the pleadings, the learned judge considered the defendant's claim. In the end, he rejected it. In my opinion, his Honour was correct in so doing. The conversations relevant in this regard were had between a Mr Macwhinnie for the plaintiff and a Mr Von Skatulla for the defendant. Mr Von Skatulla was not available to give evidence. The evidence of Mr Macwhinnie was that the capacity of the crane was said to be fourteen and not fifteen tonnes. His Honour accepted the evidence of Mr Macwhinnie. He said: "There is no acceptable evidence from which I would infer that any representation higher than 14 tonnes was made. That a representation of 14 tonnes was made is not denied. The then national service manager of the plaintiff company (Mr Macwhinnie) gave several versions of a conversation that he had had with the defendant's representative (a Mr Von Skatulla) who was enquiring about and arranging the hire of the crane. Whilst these versions of the conversation varied in detail the essential elements remain the same. There was a query by Mr Von Skatulla about whether the crane could lift 15 tonnes, an assurance from Mr Macwhinnie that 14 8 UNREPORTED JUDGMENTS tonnes could be relied upon and an acceptance by Mr Von Skatulla that 14 tonnes was sufficient for the defendant's purposes." Ordinarily this Court would not depart from the finding of the judge at first instance who saw the witnesses. But Mr Macwhinnie was cross-examined at some length. It was submitted that his evidence was internally unsatisfactory and inconsistent with documentary evidence brought into existence within a comparatively short time thereafter, to the extent that this Court should reject it. When the present dispute arose, there was correspondence between the plaintiff and the Hitachi organisation from which the crane had been obtained. This was relied upon by Mr Sullivan. It was submitted that in that correspondence it was conceded that, inter alia, the defendant had been informed that the capacity of the crane was fifteen tonnes. I agree with his Honour's conclusion that, properly understood, the documents do not so establish. The defendant was dissatisfied with the performance of the crane. The plaintiff would not have been averse to a solution of the dispute which satisfied the defendant. The plaintiff, through its officers, sought to make the best of the situation without creating unnecessary disputes with the Hitachi organisation. I think that it emerges from the documentation: see, eg, the memorandum of 18 October 1982; that the plaintiff and the Hitachi organisation then saw the capacity of the crane as being fourteen tonnes and that that had been the capacity as quoted on behalf of the Hitachi organisation to the plaintiff. I am not satisfied that the plaintiff admitted that it had told the defendant otherwise. Considering all of the evidence, I am not satisfied that the defendant's submissions in this regard should be accepted. 2. Did the crane have a line pull capacity of fourteen tonnes? The evidence in this regard referred, inter alia, to the basic specifications in respect of the crane as initially prepared, other documentary material, conversations between the parties, and evidence of what took place at a testing of the crane following the defendant's complaints. The specifications and similar material indicate, in my opinion, that the crane was seen to have a capacity of fourteen tonnes and that this was known to the plaintiff at the relevant time. Detailed evidence was given as to the test to which the crane was subjected. Different evidence was given by various of the witnesses. The evidence of Mr Macwhinnie was, in my opinion, to the effect that at that test the crane performed in such a way as to show a capacity of fourteen tonnes. The evidence of a witness called for the defendant, Mr Xuereb, was to the contrary effect. And the understanding of the evidence of the witnesses was complicated by the fact that a capacity of fourteen tonnes was, as each party accepted, to be measured in a particular way, whereas the testing was done, not in that way, but in a way which, as the witnesses suggested, provided the basis for inferring whether, in the relevant sense, the crane had the necessary fourteen tonnes capacity. The learned judge, having seen and heard the witnesses, rejected the evidence of Mr Xuereb. I do not think that this Court can, on the principles regulating the exercise of appellate jurisdiction, reverse this finding. Mr Sullivan, in presenting his submissions in this regard, indicated that he did not press this submission orally and relied only on his written submissions. I have examined the evidence to which he there referred. Giving full effect to the submissions made by Mr Sullivan as to the statements said to have been made by Mr Macwhinnie and to the documentary material available, I do not think this Court should differ from his Honour in his URJ FRANKIPILE PTY LTD v ACSAS PTY LTD (Mahoney JA) 9 preference for, eg, Mr Macwhinnie over Mr Xuereb. If the matter is to be judged on the basis of the evidence as it is before this Court, I would myself prefer Mr Macwhinnie's evidence. In my opinion, therefore, this submission of the defendant should not be accepted. 3. Damages: The plaintiffs claim fell into three parts. Mr Sullivan indicated that there was no contest as to the first and second of them. The contest before this Court was limited to the plaintiff's claim for the hiring charges for the period of ten weeks. Mr Sullivan's submissions were in substance three; that there was no causal relationship established between the loss of the hiring charges and the defendant's repudiation or rescission of the hiring agreement; that the plaintiff had failed to mitigate its damages; and that there should be set off against the loss from the hiring agreement the profits which the plaintiff made on the resale of the crane in November 1982. There is, in my opinion, the necessary causal relationship between what the defendant did and the fact that the plaintiff did not receive the hiring charges which the defendant's had promised to pay to it. The defendant's submissions in relation to this matter were, I think, essentially directed to questions of mitigation. I do not think the submissions in this regard should succeed. It was then submitted that the plaintiff's damages should be limited because it had not properly mitigated its loss. The suggestion made was that, during the period of some eight or nine weeks during which the crane was back in the plaintiff's possession it made no endeavour to hire the crane to someone else, that it should have done so, and that had it done so, its loss would have been reduced. The learned judge was not satisfied that, the onus being on the defendant, it had established the failure to mitigate which it claimed. The evidence was that the hiring of such a crane was "unusual". There was no evidence to establish that the crane could have been hired again within the period of nine weeks. The plaintiff accepted that, during the period, it did not make efforts to re-hire the crane but dealt with it by way of renovation and preparation for re-sale. But if the defendant is to establish failure to mitigate in such circumstances, it is, in my opinion, necessary for it to establish that, re-hiring being the only matter in issue, reasonable efforts by the plaintiff would have resulted in a re-hiring. No substantial attempt was made to establish such matters. I am not satisfied that the defendant's submission in this regard has been established. Finally, the defendant relied upon the fact that, at the end of approximately nine weeks of the agreed hiring period, the plaintiff sold the crane to a third party. The submission was to the effect that some or all of the profit from that sale should have been set off against the loss of hiring charges. The plaintiff before the trial judge accepted that it could recover for only nine weeks of the lost hiring and the judge's judgment took this into account. I do not think that the fact that there was a sale is to be called in aid against the plaintiff's otherwise established loss. The sale was, in my opinion, properly res inter alios acta. Had the sale taken place, for example, after the expiration of the ten weeks period, it would clearly have been such. Mr Sullivan has called in aid the fact that, during the nine week period intervening, the plaintiff renovated the crane having raised the possibility of re-sale. And, as I have said, the sale took place before the end of the ten weeks hiring period. But I do not think that these facts affect the plaintiff's claim for the hiring charges. It was not suggested that the plaintiff was obliged to attempt to sell the crane in order to mitigate damages. 10 UNREPORTED JUDGMENTS The sale was, in the relevant sense, something separate and distinct from the transaction between the plaintiff and the defendant. I therefore do not think that the defendant's submissions in this regard should succeed. I have said that the defendant made a cross-claim. His Honour did not deal with the cross-claim in terms. His findings on the plaintiff's claim and the defendant's defence determined the issues relevant to the cross-claim. Nothing was urged separately in respect of the cross-claim in this appeal. In the result, therefore, the defendant's appeal should be dismissed with costs. McHUGH JA: I agree with the order proposed by Samuels JA for the reasons given by him. Counsel for the Appellant: A Sullivan and R Webber Solicitors for the Appellant: Moray and Agnew Counsel for the Respondent: M Walton Solicitors for the Respondents: Leonard F Saville and Co