UPPER HUNTER TIMBERS PTY LTD v FORESTRY COMMISSION OF NSW [1999] NSWCA 125

New South Wales Court of Appeal CITATION : UPPER HUNTER TIMBERS PTY LTD v FORESTRY COMMISSION OF NSW [1999] NSWCA 125 FILE NUMBER(S) : CA 40671/98 HEARING DATE(S) : 22 April 1999 JUDGMENT DATE : 21 May 1999

PARTIES : Upper Hunter Timbers Pty Limited - A Forestry Commission of NSW - R JUDGMENT OF : Priestley JA at 1; Sheller JA at 2; Stein JA at 59

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : 3609/97 LOWER COURT JUDICIAL OFFICER : Bryson J

COUNSEL : D J Hammerschlag/M Green - A J E Griffiths - R SOLICITORS : Deacons Graham & James - A Crown Solicitor of NSW - R CATCHWORDS : CONTRACT - finality - merely agreement to agree; CONTRACT - assignment - novation; CONTRACT - Government body - whether contract fettered discretion; CONTRACT - frustration by commencement of Act - loss of bargain damages Forestry Act 1916 Forestry Revocation & National Parks Reservation Act 1996 ACTS CITED : Enviromental Planning & Assessment Act 1979 Timber Industry (Interim Protection) Act 1992 Frustrated Contracts Act 1978 Limitations Act 1969 CASES CITED: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 77 Camberwell City Council v Camberwell Shopping Centre Ltd (1994) 1 VR 163 at 182 DECISION : 1. Appeal allowed in part; 2. Set aside so much of the order of Bryson J of 17 August 1998 as gave judgment for the respondent on the Mount Royal Claim and the order that the appellant pay the respondent's costs of the proceedings; 3. Remit the matter to the Equity Division for a determination of the extent, if any, to which the respondent was in breach of the agreement made on 14 November 1988 during the period on and from 14 August 1991 to 31 December 1996 and the damages, if any, the result of such breach for which the respondent is liable having regard to the provisions of the Frustrated Contracts Act; 4. Order that the costs of the hearing before Bryson J be determined by the Judge hearing the matter remitted taking into account the result of the remitted proceedings; 5. No order as to the costs of the appeal.