Bak v Glenleigh Homes Pty Limited [2006] NSWCA 10

New South Wales Court of Appeal

CITATION: Bak v Glenleigh Homes Pty Limited [2006] NSWCA 10

HEARING DATE(S): 8 August 2005, 16 December 2005

JUDGMENT DATE: 15 February 2006

JUDGMENT OF: Handley JA at 1; Hodgson JA at 26; McColl JA at 89

DECISION: (1) Appeal allowed. (2) Orders below set aside. (3) Matter remitted to the District Court for determination in accordance with this judgment and for determination of all questions of costs at first instance. (4) The costs of the first trial, and the costs of this appeal other than the costs of the application to adduce further evidence and the second hearing will abide the order of the Judge presiding at the new trial. (5) The respondent is to pay the appellant's costs of the application to adduce further evidence and the second hearing and in respect of those costs it is to have a certificate under the Suitors' Fund Act if otherwise eligible.

CATCHWORDS: CONTRACT - breach of contract - whether breach causative of substantial damages - DAMAGES - loss of a chance - estimation of probabilities in assessment of damages - MITIGATION - where innocent party not aware of facts giving rise to breach - when duty to mitigate damage arises - APPEAL - further evidence - s 75A (9), Supreme Court Act 1970 - new trial ordered (D)

LEGISLATION CITED: Suitors' Fund Act 1951 Supreme Court Act 1970

Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 Doherty v Liverpool Hospital (1991) 22 NSWLR 284 Greater Wollongong City Council v Cowan (1955) 93 CLR 435 Hotson v East Berkshire Area Health Authority [1987] AC 750 CASES CITED: Lambert v Lewis [1982] AC 225 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 McDonald v McDonald (1965) 113 CLR 529 Orr v Holmes (1948) 76 CLR 632 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 The Indian Grace [1993] AC 410