New South Wales Supreme Court CITATION : Expertise Events P/L v Blue Haven Pools & Spas P/L [2004] NSWSC 435 HEARING DATE(S) : 11 May 2004 JUDGMENT DATE : 25 May 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is upheld; (2) The Magistrate's order dated 16 September 2003 insofar as it refers to quantification of damages of the cross-claim is set aside; (3) The amount of damages awarded on the cross-claim is $12,092.00; (4) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - Breach of Contract - Quantification of damages LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) - s 69 Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 CASES CITED : Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Devries v Australian National Railways Commission (1993) 177 CLR 472 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Expertise Events Pty Limited (Plaintiff) PARTIES : Blue Haven Pools and Spas Pty Limited (Defendant) FILE NUMBER(S) : SC 12661/2003 Mr G P Sirtes (Plaintiff) COUNSEL : Mr M T McCulloch (Defendant) Mr G Dunstan, Dunstan Legal (Plaintiff) SOLICITORS : Mr G Coyne, Coyne & Whittemore (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 136865/01 FILE NUMBER(S) : LOWER COURT Magistrate L Horler JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 25 MAY 2004 12661/2003 - EXPERTISE EVENTS PTY LIMITED v BLUE HAVEN POOLS AND SPAS PTY LIMITED JUDGMENT (Appeal decision of Local Court Magistrate – Breach of Contract – Quantification of damages) 1 MASTER: By summons filed 13 October 2003 the plaintiff seeks firstly, an order granting leave to appeal from the decision L Horler LCM of the Local Court of New South Wales in Proceedings No. 136865/01 dated 16 September 2003; secondly, an order in the nature of certiorari setting aside the decision; thirdly, an order that in lieu of the decision, the Court enter judgment in favour of the plaintiff in the sum of $19,306.00; fourthly, an order that the defendant pay the costs of these proceedings on a solicitor-client basis and the costs of the proceedings in the Local Court; and fifthly, if necessary, an order granting leave to extend the time within which to seek leave to appeal. 2 The plaintiff is Expertise Events Pty Limited (the appellants) (Expertise). The defendant is Blue Haven Pools & Spas Pty Limited (the respondent) (Blue Haven). The plaintiff relied on the affidavit of Gregory John Dunstan sworn 25 February 2004. For convenience, in this judgment I shall refer to Expertise Events Pty Limited as the plaintiff and Blue Haven Pools & Spas Pty Limited as the defendant. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. Grounds of appeal 4 The appeal is brought against the whole of the Magistrate's decision. The grounds of appeal are that the learned Magistrate erred in law by: firstly, failing to determine the plaintiff's claim or entitlement to damages of $19,306.00; secondly, construing the contract between the parties by reference of parol evidence and contrary to admissions on the pleadings that the contract was wholly in writing; thirdly, failing to give adequate reasons; and fourthly, determining the defendant's damages by making findings in the absence of evidence, calculating the damages based upon the damages claimed by the plaintiff, awarding reliance damages in circumstances where the defendant failed to establish any expectation losses flowing from the alleged breach and was not entitled to claim reliance losses, contrary to any recognised principles of quantification, by reference to irrelevant matters. Local Court proceedings 5 The case before the Magistrate concerned respective claims by the parties for damages arising out of the defendant's hire of floor space at the annual Sydney Home Show, which was at that time branded the 'Our House Home Improvement Expo', conducted by the plaintiff at the Sydney Exhibition Centre, Darling Harbour from 5-8 July 2001. 6 On 16 September 2003, the Magistrate made the following orders [at page 17]. "I find verdict and judgement for the Defendant on the Claim , and verdict and judgement for the Defendant/Cross Claimant on the Cross claim in the sum of $31,228 together with interest from 4 July 2001". 7 The amount of damages awarded on the cross-claim consisted of: "Net cost of stands F15 and F21 $19,136 Costs of set up and striking 14,085 SUB-TOTAL 33,221 LESS: 3/50ths x $33,221 1,993 DAMAGE AS ASSESSED $31,228 " 8 At the hearing, the defendant/cross-claimant conceded that it should not have been awarded the sum of $19,136.00 for the 'Net cost of stands F15 and F21'. Thus the defendant/cross-claimant's damages should be assessed at $12,092.00. It is conceded that the Magistrate erred in awarding $19,306.00 in damages to the defendant as part of the defendant's cross-claim. 9 In her decision dated 16 September 2003, where the Magistrate made reference to the plaintiff as 'Enterprise Events' it should be taken that she was referring to 'Expertise Events'. Her Honour found the following facts: "3 Enterprise Events was the organiser of the 2001 Our House Home Expo at Darling Harbour, which took place on Friday to Sunday 5-7 July 2001. Its Exhibitions Manager was Ms Joanne LEE. 4 On 28 February 2001, according to her note in the Account profile (Annex.A to her Affidavit ), she contacted Mr Ray AWADALLAH , the managing Director of Blue Haven Pools & Spas, with whom she had dealt for the previous year's expo organised by Expertise Events, and told him she'd posted out an exhibition kit for the expo marking islands J21 and K21 for 'exclusive product promotion'. Mr AWADALLAH said he wasn't interested , Enterprise always had too many pool and spa companies and that expo was too small 'to support us if others are involved'. Ms Lee said she'd see what she could do and call back. Next day she called back and told him Blue Haven could have the show exclusive to itself and assured him 'no other pool or spa company will be invited, the only other company in the spa or pool business will be a spa bath company for BAHTROOM SPA BATHS' . He was unconcerned with that , regarding SPA BATHS as no competition to his product.(##3 &4 of his Affidavit). 5 Between 8 and 10 March a booking form and floorplan was faxed to , completed by Mr AWADALLAH showing the product to be 'swimming pools and spas' signed by him and returned to Expertise Events where the form was endorsed on 12 March by Expertise's Managing Director Mr Max POYSER to reflect a 10% discount negotiated between Mr Awadallah and Ms Lee. 6 On 7 May Ms Lee's note in the account profile, reflects a further telephone call with Mr Awadallah, closer to the expo date where she acknowledges the exclusive agreement for Blue Haven with regards to outdoor pools and spas , that no other company with the same product line will be invited with the exception of indoor spa baths . On 16 May Blue Haven upgraded from 54 sqm, its original booking, to 108sqm . It also agreed to provide a spa pool, value $8,300 as a door prize to be mounted on a trailer and used by Enterprise as promotion for the expo. It took me some time to understand the elliptical note by Mr Poyser on the bottom of the Change of information form which is Annex D to his Affidavit, but eventually I understood that the price of the larger floorspace of 108 sqm was to remain $12, 326 instead of double that figure because of the contra provided by Blue Haven in the form of the door prize, vale $8,300. 7 An updated document, dated 8 March, calling itself 'OUR HOUSE HOME IMPROVEMENT EXPO BOOKING AGREEMENT AND FORM OF CONTRACT, showing the original price of $12,636 and an additional participation cost of $6,500 (totalling $19,136 ) for a further booking of 72 sqm was signed by Ms Lee on 24 May and by Mr Awadallah on 29 June . It was faxed back to Ms Lee on the same day. 8 It was only on 26 June that Ms Lee was contacted by another Mr Awadallah, from a business called ARISTOCRAT SPA POOLS AUSTRALIA who expressed interest in booking into the expo. Her recollection of how she dealt with the limitations resulting from the arrangement with BLUE HAVEN indicated a clear confusion in her own understanding of the difference between a spa BATH and a spa POOL.for (#10 of her affidavit) she says she told ARISTOCRAT that BLUE HAVEN had the exclusive right to exhibit outdoor pools and SPAS :she had reserved the right to book an indoor bathroom SPAS exhibit , which meant that ARISTOCRAT would only be allowed to exhibit indoor spas for bathrooms , (not , it is to be noted, SPA BATH ). Unsurprisingly, ARISTOCRAT's completed booking form (Annex B to her Affidavit) show the product to be exhibited is SPAS – INDOORS, and the stand design plan supplied by Aristocrat (Ex 2) shows what appear to be 2 corner shower baths, 4 oval baths and 4 large areas designed for specific models apparently of a much larger size and , in two cases indicating 36 and 30 jets and in the former case the word 'family'. 9 Ms Lee apparently did not recognise these indications of a possible misunderstanding by ARISTOCRAT as to what it could and could not display and did not specifically raise the potential conflict with either ARISTROCRAT or BLUE HAVEN at any time before the issue was raised with her on 4 July. 10 The Wednesday afternoon and Thursday , July 3 and 4 were set up days for the expo. Mr Chayoub, sales manager for BLUE HAVEN , started supervising the setting up the display which involved the provision of walls , carpets, photographs and lighting as well the bringing of their products into the exhibition hall ( ## 6 and 8 of his affidavit). 11 Sometime in the late morning of 4 July BLUE HAVEN's cheque for $19,136 being the amount referred to in #7 above was delivered to Ms Lee. 12 There had been an earlier complaint about display separation which was resolved by Ms Lee, but at about 1.30pm on 4 July BLUE HAVEN's spa department manager, Mr RICARDO AWADALLAH and Mr CHAYOUB saw ARISTOCRAT setting up a display involving what they say were spa pools. .To Ms LEE's response, when they asked what ARISTOCRAT, BLUE HAVEN's competitor in the spa and pool market was doing at the show, that they were only doing indoor spas, spa baths , not spa pools , they showed her some of their product and then the same product being set up on the ARISTOCRAT stand. 13 Ms LEE , in her evidence, agreed that this had happened , and while she still could not articulate the distinction between spa BATHS and spa POOLS, she further agreed that when she looked at the ARISTOCRAT display with Messrs Chayoub and Ricardo Awadallah she saw some items there that looked like a bath, and others that were filled with water and looked like a pool ( TRS 19/03/03 pp 8, 9). She also confirmed (#17 of her affidavit) that when she put to ARISTOCRAT's Mr RAMSES AWADALLAH who was on site that the spa being set up ( to which BLUE HAVEN objected ) was an outdoor spa , he agreed but said it could also be used as an indoor spa . She agreed in cross examination that Mr Chayoub and Mr Ricardo Awadallah had said the spa was a spa POOL regardless of whether you put it in a bathroom setting or not, it was capable of being indoors or outdoors. Further she agreed that that statement was confirmed by Mr Ram Awadallah from ARISTOCRAT as well.. 14 There were then either two or three telephone conversations between Mr Ray Awadallah and Ms Lee, in which he asserted and she accepted that ARISTOCRAT'S display as it was constituted contained SPA POOLS as to which BLUE HAVEN had exclusivity and he maintained that either BLUE HAVEN would leave the expo or ARISTOCRAT must go and he declined to speak to his brother himself , insisting that it was ENTERPRISE EVENT'S problem to solve.. Ms Lee asked him please not to leave as his stand was a large one in a prominent position and its departure would leave a big gap in the show, and she agreed to speak to Mr Ram Awadallah. Mr Ray Awadallah says he agreed not to leave but told Ms Lee he would not pay for the space as ' you've broken your agreement '. Ms Lee denies that this was said or that she said we'll work it out after the show., but at least Mr Awadallah's side of the conversation is corroborated by the uncontroverted evidence that the cheque for $19,136 was then stopped. 15 So Ms Lee spoke to ARISTOCRAT's Mr Awadallah herself asserting that he may have dishonoured his agreement with her, which he denied: they are all indoor spas . (Having regard to the wording in the ARISTOCRAT booking form, and the stand plan may well have had a point, it seems to me ). And threatened him with possible removal if BLUE HAVEN's demands that he leave were not resolved. Mr Ram Awadallah said he'd speak to Ray and would get back to her, but evidently he did notget back to her, 16 Ms Lee says there was a third call to Ray Awadallah about an hour later in which he said to her I'm not going to kick my brother out, but she agreed in cross examination that at all times Ray requested ARISTOCRAT's display be removed and said that it was ARISTOCRAT or us (Trs 19/03/03 p28).. 17 There was general agreement that by the time all of this had occurred, it was around 4 pm and both ARISTOCRAT's trucks (see Ms Lee's Affidavit #20 quoting Mr Ram Awadallah) and those of BLUE HAVEN (and its hired forklift) had long gone (evidence of Mr Chayoub) and could not be called back that day. Next day the show was open to the public, and it was patently obvious that it would have been impossible for BLUE HAVEN to get a forklift in and remove its exhibit from the centre of the exhibition." Failure to give adequate reasons 10 The efficacy of reasons for judgment is expressed in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. The judgment of Meagher JA is particularly instructive. At 441-444 His Honour stated: "It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; but only as a normal, not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. It does not arise from legislation as it does in the field of administrative law: see, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13; Administrative Appeals Tribunal Act (Cth) 1975, ss 28, 37 and 43. In the administrative field there is, at common law, no obligation on primary decision-makers to provide reasons for a decision: Public Service Board of New South Wales v Osmond. … The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way." 11 His Honour then proceeds to outline and explain three fundamental elements integral to a statement of reasons. They are: (1) A judge should refer to relevant evidence. (2) A judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. (3) A judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. 12 In her judgment dated 16 September 2003, the Magistrate stated [at paragraph 22]: "22 Having regard to the facts as I have found them (paras.2-5) above, the better view, to my mind, is that the agreement between the parties was not simply that document. It is plain in its terms that on page 1 it refers to a contract number, which presumably is allocated when the space booking is made, and a date , 8 / 03/ 01 which clearly refers back to the date when the space booking form was sent to Blue Haven.. Clearly the conversations between Ms Lee and Mr Awadallah culminating in his completing and signing the booking form ,and returning it by fax to Ms Lee constituted the offer by Enterprise and the acceptance by Blue Haven. Mr Poyser's endorsement of the agreement as to price merely did that, confirm the price . Subsequently there were variations to the agreement. More space was booked , twice. A contra was accepted in reduction of the total floor space price. But there was no variation of the term of exclusivity. 23 Because the agreement was an executory one, performance on the part of Enterprise was not to occur for some time, and on the part of Blue Haven performance in terms of payment was supposed to occur also in instalments over a future period of time not later than the availability to it of the venue Enterprise was anxious to put in place an agreement as to the manner of payment. This was the so-called BOOKING AGREEMENT AND FORM OF CONTRACT.. But even its title makes it clear that it incorporates within it the booking agreement. In this case that means the original booking form for K21 with its clear reference to the product to be exhibited and its clear oral component which was a promise , binding on Enterprise that Blue Haven would be the sole exhibitor at the expo exhibiting swimming pools and spa pools. And it incorporates also the variations including the substitution of the larger stand F15 and the addition of a further stand F21, the acceptance of the contra of the prize by way of payment or price reduction. 24 … Clearly, what embodies the entire agreement between the parties is the conversations explaining the product to be exhibited in the booking form, the booking form , the agreed variations." 13 In the circumstances it was open to the Magistrate to find as she did, that the agreement was constituted by reference to the relevant conversations, booking form and agreed variations and not (as submitted on behalf of the plaintiff) wholly dealt with by clause 18 of the written agreement. Thus it was open to the Magistrate to find that by allowing Aristocrat to attend the expo, the plaintiff breached a promise of exclusivity to the defendant. 14 The plaintiff also submitted that the cross-claim sought damages both on the basis of expectation losses (lost opportunity) and reliance losses (set up costs), which was impermissible, as it would lead to double recovery being the recovery of the same loss under two different heads. In the joint judgment of Gibbs CJ, Mason, Wilson & Dawson JJ in Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11-12 the High Court described the measure of damages for breach of contract as follows: "In contract, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the contract been performed - he is entitled to damages for loss of bargain (expectation loss) and damage suffered, including expenditure incurred in reliance on the contract (reliance loss)." 15 In The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 where the plaintiff recovered the expenditure wasted in preparing for an aviation contract, Brennan J [at 100-101] stated: "The resolution of this controversy depends on the value to be attributed to the rights which the contract conferred on Amann or, more precisely, on the value to be attributed to the benefits to which Amann would have been entitled under the contract had the contract been performed. If the value of those benefits ($B) less the amount which Amann would have had to expend but is now dispensed from expending in performance of any of its unperformed obligations under the contract ($y) exceeds the expenditure incurred by Amann in preparing to perform the contract ($x), Amann is entitled to recover $x; if the net benefit ($B $y) is less than the expenditure incurred ($x), Amann is entitled to recover no more than the net benefit, for that is all that it would have recouped had the contract been performed. The measure of Amann's damages thus depends on the value of the benefits which Amann would have been entitled to receive had the contract been performed ($B), $x and $y being agreed amounts. If $B cannot be quantified, the problem is this: does Amann fail because it has not proved that $B $y is sufficient to cover the $x it expended, or does the Commonwealth fail because it has not proved that $B $y is insufficient to cover the $x or has not proved the amount of the insufficiency?" 16 In the same case, McHugh J [at 162-164] held: "With great respect to the views expressed by Lord Denning MR and Hutchison J, it is a mistake to speak of the plaintiff having a right to elect between expectation damages and reliance damages. The object of an award of damages for breach of contract is to compensate the plaintiff for its loss by placing it, so far as money can do it, in the same position that it would have been in if the contract had been fully performed on both sides. A plaintiff's loss from a breach of contract may be manifested in one or more of a number of ways. It may consist in a loss of profits or future benefits, in the difference in value between the price of an asset purchased under the contract and the market value of the asset at the date of breach, in the inability to recoup in whole or in part expenditure incurred in reliance on the defendant performing its part of the contract or in expenditure which will have to be incurred if the plaintiff is to be placed in the same position as it would have been in if the defendant had performed its obligations. … Sometimes, as Treitel points out, a contract 'may give rise to two quite separate expectations: that of receiving the promised performance and that of being able to put it to some particular use'. In such a case, a plaintiff may be able to recover for both moneys expended and loss of profit, although great care needs to be taken that double counting does not occur. Thus, when the defendant has warranted that a machine is suitable for carrying out a particular contractual obligation of the plaintiff, breach of the warranty may entitle the plaintiff to recoup the net capital loss incurred in purchasing and installing the machine together with any excess of the estimated profits over that capital loss. Moreover, in some cases, the plaintiff's only recoverable loss is the expenditure thrown away by the defendant's breach." 17 Therefore, although the Court will not award damages that would lead to double recovery, the plaintiff may recover both the net profit from a transaction and the expenses incurred to earn it, but not the gross profit. Thus, expectation damages and reliance damages can be recovered in the one award of damages. In this case however, double recovery did not arise as the Magistrate found that the defendant was entitled to damages referable only to its wasted expenditure (i.e. on reliance losses). As such, when it comes to damages, there is a choice. In accord with this choice, the Magistrate was wholly entitled to choose to award damages on the basis of reliance losses. 18 Damages may not be used to place the innocent party in a better financial position than if the contract had been performed. In The Commonwealth v Amann Aviation Pty Ltd per Toohey J [at 136-138] stated: "The task of the court remains one of placing the plaintiff, so far as can be done by an award of damages, in the position he would have been had the contract been performed. The plaintiff cannot be put in a better position than he would have been if the contract had been performed; the defendant is not an insurer of the venture on which the plaintiff embarked. It follows that, if the plaintiff would not have recouped his outlay in any event, he is not entitled to reliance damages. I agree with the Chief Justice and Dawson J that opinions expressed in decisions such as Anglia Television Ltd v Reed, and CCC Films Ltd v Impact Quadrant Films Ltd, that a plaintiff may, at his option, claim for loss of profits or wasted expenditure are not appropriate ways of looking at the question. Reliance damages are a means of compensating the plaintiff where there has been no loss of profits or, more likely, where the plaintiff cannot prove loss of profits with any certainty." 19 Gaudron J [at 154-156] then added: "Damages which are assessed by reference to wasted expenditure are often referred to as "reliance damages", reflecting the description usually given to them, as it was in McRae, by reference to expenses having been incurred in reliance upon a promise. The expression 'reliance damages' is apt to give the erroneous impression that damages are to be awarded on some basis other than compensation for the loss of contractual rights or, which is often the same thing in practice, for loss of profits. It may suggest that compensation is to be awarded on the basis that the plaintiff is to be put in the position in which he or she would have been if the contract had not been made. On that basis, a question necessarily arises, as it did in Anglia Television, whether damages should include preliminary expenses incurred before the contract was made. It was decided in that case that they should. And, on that basis, two further questions arise, namely, whether damages should be reduced for any loss which would have been sustained if the contract had been fully performed and whether the plaintiff must elect between damages assessed by reference to wasted expenditure and damages assessed in the usual manner. … It is also clear from TC Industrial Plant Pty Ltd that damages which are assessed by reference to wasted expenditure are awarded to compensate for loss of contractual rights or loss of profits and, despite any coincidence in effect, not to put the contracting party in the position in which he or she would have been if the contract had not been made. It follows that any loss which would have been involved in performing the contract must be brought to account. Were it otherwise, the plaintiff would be put in a better position than if the contract had been performed." 20 The learned Magistrate referred to the general rule [at paragraph 42] in her judgment when she said that the promisee is not entitled to be placed in a better position than he would have been if the breach had not occurred. 21 In her judgment, the Magistrate did not expressly state (other than in her orders) that Expertise Events was entitled to a verdict in its favour in the sum of $19,136.00. However she gives reasons for the failure of the plaintiff's claim by making a number of findings namely firstly in relation to: the exclusivity term of the agreement she found that it was a term in the agreement between the parties that Blue Haven would be the only exhibitor at the Expo exhibiting SPA POOLS" [J para 25]; secondly, that there was a breach of the exclusivity term in the parties' agreement by Enterprise in permitting Aristocrat to exhibit SPA POOLS, and thirdly, that breach continued by its not requiring Aristocrat to leave the expo, or at least to remove the offending Spa Pools"; and fourthly, there was no waiver of the breach of condition by Blue Haven and it was not estopped from any claim of damage for loss occasioned by the breach [J para 38]. But perhaps the best indication of the failure of the plaintiff's claim is what the Magistrate stated [J para 37]: "At that point, it seems to me, Enterprise had breached what Mr Coyne called a fundamental condition of the contract. I prefer to describe it as the promise without which Blue Haven would not have sought to participate in the expo at all." 22 The Magistrate has made orders that verdict and judgment be for the defendant on the claim and cross-claim and she has given reasons to support her decision. There is no error of law. However, the Magistrate did err when she included the sum of $19,136 as part of the damages to be awarded to Blue Haven. In this respect, it was conceded by the respondent that the Magistrate was incorrect. The appeal is upheld. The Magistrate's orders dated 16 September 2003 insofar as they refer to the quantification of damages awarded on the cross-claim are set aside. The amount of damages awarded on the cross-claim is the sum of $12,092.00. The concession about the error was made at the outset by the respondent and could have been corrected by consent orders rather than proceeding to the hearing of the appeal. Apart from this error, which was common ground, the appeal was largely unsuccessful. The plaintiff was largely unsuccessful. Costs are discretionary. In these circumstances, it is my view that the appropriate order for costs is that the plaintiff is to pay the defendant's costs as agreed. Orders 23 The Court orders: (1) The appeal is upheld. (2) The Magistrate's order dated 16 September 2003 insofar as it refers to quantification of damages of the cross-claim is set aside. (3) The amount of damages awarded on the cross-claim is $12,092.00. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** Last Modified: 05/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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