PRESTON ERECTION PTY LTD v SANDMAN HOLDINGS PTY LTD (formerly known as SGB BROOKER PTY LTD) [1991] NSWCA 226

PRESTON ERECTION PTY LTD v SANDMAN HOLDINGS PTY LTD (formerly known as SGB BROOKER PTY LTD)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 11 June 1991, 25 June 1991 [1991] NSWCA 226

CONTRACT — OFFER AND ACCEPTANCE — COUNTER OFFER — LOSS OF CHANCE

Clarke, Meagher and Handley JJA The appellant sued the respondent for breach of an agreement to sell scaffolding equipment to the appellant. The respondent denied the contract and the loss claimed to flow from the alleged breach. The action was heard by his Honour Judge Shadbolt who found that a contract did exist, broadly in the terms contended for by the appellant, but was not satisfied that any loss flowed as a consequence of the breach of that contract. He found a verdict for the defendant respondent.

It has not been submitted in this Court, and apparently was not submitted in the court below, that the finding that there had been a breach of contract necessitated a verdict for the appellant albeit for nominal damages. What the appellant has submitted in this court is that his Honour was in error in his conclusion on the question of loss. For its part the respondent has filed a notice of contention seeking to uphold the judgment upon the basis that the finding that there was a contract between the parties whereby the respondent promised to sell scaffolding equipment to the appellant was itself erroneous.

Accordingly, two issues arose for consideration in the appeal; the first being whether the appellant established the contract on which he sued and the second being whether, upon the assumption that the contract had been made out, the appellant established that loss flowed from the breach of that contract. It is convenient to deal with the issue raised by the notice of contention first.

In its statement of claim the appellant pleaded an agreement, partly oral and partly in writing concluded on or about 25 June 1982. Although his Honour found that an offer to purchase the equipment had been made by the appellant, and accepted by the respondent, he was of opinion that both the offer and acceptance were quite distinct from the discussions which occurred on 25 June 1982 although the sale price had been fixed at that time. His Honour did not, however, identify with any particularity the terms of the offer, who made it or the manner in which it was communicated. Nor did his Honour identify the manner in which the offer was accepted. Accordingly, it is necessary to examine the evidence which was given in the trial on this issue.