NUS INTERNATIONAL PTY LTD v MACQUARIE PUBLICATIONS PTY LTD [1991] NSWCA 218

NUS INTERNATIONAL PTY LTD v MACQUARIE PUBLICATIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and HANDLEY JJA 4 April 1991, 9 October 1991

[1991] NSWCA 218

CONTRACT — construction of contract by which energy consultant undertook to investigate energy consumption costs of its client — meaning of "recommendation" in particular contractual context but no question of principle. APPEAL — application to amend grounds of appeal to raise point not taken at the trial refused: Coulton v Holcombe (1986-87) 162 CLR 1 applied.

Samuels JA The appellant is an energy consultant whose business is to investigate and analyse the energy consumption costs of its clients for the purpose of submitting recommendations to them for the achievement of savings, or the recovery of readjustments in respect of costs already paid. The first respondent ("Macquarie") is a printer and publisher carrying on its business principally in Dubbo in the west of New South Wales, and is a subsidiary of the second respondent ("EECE").

On 12 August 1983 the appellant and Macquarie entered into a contract by which, in very general terms, the appellant agreed to make recommendations to Macquarie for "all possible savings and refunds" on its energy costs, including electricity and gas.

In due course a dispute broke out between the parties and by a statement of claim dated 4 February 1986 the appellant claimed damages for Macquarie's repudiation of the contract. In addition it sought damages from EECE for wrongfully procuring a breach of its contract with Macquarie, and from each of the respondents for conspiracy, a claim which was not however pressed at the trial and about which I need say nothing further. By their further amended defence the respondents denied the allegations of repudiation, procuring a breach of contract and conspiracy, and Macquarie asserted that it was in fact the appellant which had repudiated the contract by failing to perform its obligations thereunder. It also asserted a total failure of consideration, but the learned judge, Rogers CJ CommD, concluded that this defence was insupportable and required no examination; and no challenge has been made to this mode of summary disposal of that issue.