Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd (No 2) [2009] NSWCA 133

New South Wales Court of Appeal

CITATION: Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd (No 2) [2009] NSWCA 133 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 February 2009

JUDGMENT DATE: 3 June 2009

JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Sackville AJA at 3

1. Appeal allowed in part. 2. Cross appeal allowed in part. 3. The judgment entered on 3 September 2008 in favour of the respondent by James J in the sum of $2,129,881.65, inclusive of interest, be set aside. 4. The matter be referred back to the Primary Judge for determination of: DECISION: (a) whether there has been breach of the "Minimum Hours Warranty" in each of the FOCUS Contracts sued on in the cross claim as found in paras 73 and 76 of the Judgment of the Court delivered on 11 March 2009; (b) if there has been a breach, for assessment of damages in respect of such breach; (c) paragraph 15(b) of the respondent's amended defence to cross claim dated 6 November 2006. 5. The parties bear their own costs of the appeal. 6. The costs of the further hearing and the earlier proceedings before the Primary Judge be reserved for his Honour's determination at the conclusion of the proceedings before him.

CATEGORY: Consequential orders

CASES CITED: Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd [2009] NSWCA 37

PARTIES: Gough & Gilmour Holdings Pty Ltd (Appellant/Cross Respondent) Peter Campbell Earthmoving Pty Ltd (Respondent/Cross Appellant)

FILE NUMBER(S): CA 40223/07