Rosser v Marine Ministerial Holding Corporation [1999] NSWCA 72

New South Wales Court of Appeal CITATION : Rosser v Marine Ministerial Holding Corporation [1999] NSWCA 72 FILE NUMBER(S) : CA 40608/96 HEARING DATE(S) : 02/02/99, 03/02/99 JUDGMENT DATE : 30 March 1999

PARTIES : Michael Lewis Jack Rosser v Marine Ministerial Holding Corporation (Formerly Maritime Services Board of New South Wales) JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 1624/93 LOWER COURT JUDICIAL OFFICER : Young J

COUNSEL : P L G Brereton SC/ M K Meek (Appellant) P M Donohoe QC/F Kunc (Respondent) SOLICITORS : S R Wallace & Wallace by their city agents Stewart Cuddy & Mockler (Appellant) English Kearns Coombes Company (Respondent) CATCHWORDS : Contract; unaccepted repudiation; damages for breach of contract; damages in lieu of specific performance; assessment of damages; discount for vicissitudes where contract subject to contingencies; discounting generally. DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40608/96 ED 1624/93

MEAGHER JA BEAZLEY JA FITZGERALD AJA

Tuesday, 30 March 1999 Michael Lewis Jack ROSSER v MARINE MINISTERIAL HOLDING CORPORATION (FORMERLY MARITIME SERVICES BOARD OF NEW SOUTH WALES)

JUDGMENT

1 MEAGHER JA: I agree with Fitzgerald JA 2 BEAZLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: Michael Lewis Jack Rosser ("Rosser") has appealed against an Equity Division judgment dated 17 September 1996 awarding him damages of $576,450 for breach of contract against the Marine Ministerial Holdings Corporation (formerly called the Maritime Services Board and, in this judgment, referred to as the "Board"). Rosser seeks to have his damages increased to $1,862,953. The Board, which has cross-appealed, seeks to have the judgment in Rosser's favour set aside. 4 The trial judge delivered a number of judgments in this proceeding, which was commenced by Rosser by a summons filed on 2 March 1993 seeking a declaration that there was a binding and enforceable contract between himself and the Board and orders for specific performance of that contract and to restrain the Board from letting any other contract contrary to the one which Rosser alleged. In a judgment dated 30 August 1993, the trial judge found that there was a contract which the Board had repudiated and that Rosser had not accepted the Board's repudiation. The Board does not challenge those conclusions. However, his Honour refused specific performance and ordered an assessment of the damages to which Rosser was entitled in lieu of specific performance and an inquiry as to what, if any, damages had been suffered by Rosser as a result of breaches of contract which his Honour found had been committed by the Board. Rosser accepts that his only entitlement is to damages, but the Board contends that he did not prove any loss, and is entitled to only nominal damages. His Honour also held that the Board was entitled to an assessment of damages, "at its own risk as to costs as to any damage suffered by it as a result of any proved breach of contract" by Rosser, but the Board elected not to take advantage of that order. This appeal and cross-appeal are concerned only with the amount of Rosser's recoverable damages. 5 In February 1989, the Board invited expressions of interest for carrying out dredging to establish "a clear shipping channel at least 60 metres wide by 5 metres depth below Port Datum" from the mouth of the Clarence River to Goodwood Island Wharf. The invitation stated that, based on the latest sounding available, dredging would be required in two designated areas, one involving the removal of approximately 18,000 cubic metres and the other involving the removal of approximately 22,000 cubic metres of riverbed sand. Rosser was the only person who responded to the invitation, which he did by a letter in mid-April 1989. Discussions followed, and, more than two years later, some dredging was carried out on Rosser's behalf by a subcontractor, Davidson Dredging Pty Ltd. 6 It is important to note a number of matters at this early stage.