Climit Pty Limited v Captech Group Limited [2004] NSWSC 956

New South Wales Supreme Court

CITATION : Climit Pty Limited v Captech Group Limited [2004] NSWSC 956 HEARING DATE(S) : 16 April 2004 (written submissions to 20 April 2004) JUDGMENT DATE : 15 October 2004 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin at 1 DECISION : (1). I assess the damages which are payable by the First, Second and Third Defendants to the Plaintiffs to be in the sum of $175,000. (2) . I order that the First, Second and Third Defendants pay the costs of the Plaintiffs of the enquiry as to damages. (3). The exhibits may be returned.

CATCHWORDS : Damages. - Assessment. - Common Law damages for loss of bargain. - Measure of such damages. - Whether Plaintiffs should be required to pursue uncertain litigation against the First Defendant. - Whether, in any event, First Defendant could meet any verdict which Plaintiffs might obtain in such litigation. Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452 at 506 CASES CITED : Segenhoe Ltd v Akins (1990) ACSC 691 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 PARTIES : Climit Pty Ltd and Ors (Plaintiffs) Captech Group Ltd and Ors (Defendants) FILE NUMBER(S) : SC 1378 of 2002 COUNSEL : Mr. N. Cotman SC (Plaintiffs) Mr. P. Hack SC (Defendants) SOLICITORS : Hopgood Ganim (Plaintiffs) McCabe Terrill (Defendants)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 15 October 2004

1378/02 CLIMIT PTY LTD and ORS -v- CAPTECH GROUP LTD and ORS JUDGMENT

1 MASTER: After a contested hearing in the substantive proceedings Windeyer J published his reasons for judgment on 6 June 2003. Consequent upon those reasons (in which his Honour dismissed the claim of the Plaintiffs for equitable damages in addition to or in lieu of specific performance) his Honour stood the matter over to allow the parties to consider the proper order which ought to made and to give to the Plaintiffs an opportunity to apply to amend their statement of claim in order to include a claim for damages for breach of contract.