FRIEND AND BROOKER PTY LTD v COUNCIL OF THE SHIRE OF EUROBODALLA [1993] NSWCA 103

FRIEND AND BROOKER PTY LTD v COUNCIL OF THE SHIRE OF EUROBODALLA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and SHELLER JJA 9 November 1993, 24 November 1993

[1993] NSWCA 103

ARBITRATION — commercial arbitration — duty of arbitrator to find facts necessary in law to support conclusion.

DAMAGES — contract — multiple causes — causes cooperating and of equal efficacy — held: Party liable for one liable for all damage caused by both.

CONTRACT — breach — damage — multiple causes — liability for — legal rule — Simonius Fischer and Co v Holt and Thomson [1979] 2 NSWLR 322 (CA) applied.

ARBITRATION — commercial arbitration — error of law — appeal to Supreme Court — appeal dismissed by Cole J but leave granted to appeal to Court of Appeal — claim by building contractor against local authority — arbitrator finds authority misled contractor concerning works — calculation of consequent damages — alleged interference in continued trading of contractor — proof of lowered profitability — proof of additional unprofitable contract — arbitrator finds contractor may have survived one but not two unprofitable contracts — awards half total loss of profits — contractor asserts error of law in failing to apply Simonius Vischer and Co v Holt and Thompson [1979] 2 NSWLR 322 (CA) — held:

(1) If a breach of contract has two causes, both cooperating and of equal efficacy in causing the loss, a party responsible for the breach is liable to the plaintiff.

Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635 applied; Alexander and Ors v Cambridge Credit Corporation Ltd and Anor (1987) 9 NSWLR 310 (CA);

(2) The arbitrator failed to find the facts necessary in law to support his conclusion.

Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203 (CA) applied;