Gough & Gilmour v Peter Campbell [2009] NSWSC 1310

New South Wales Supreme Court

CITATION : Gough & Gilmour v Peter Campbell [2009] NSWSC 1310

HEARING DATE(S) : 21/09/09-27/09/09

JUDGMENT DATE : 10 December 2009

JUDGMENT OF : James J

Campbell v Backoffice Investments Pty Ltd (2009) 83 ALJR 903 Drinkwater v Caddyrack Pty Ltd (Young J 25 September 1997) Gough & Gilmour Holdings Pty Ltd (No 2) v Peter Campbell Earthmoving Pty Ltd [2007] NSWSC 172 Gough & Gilmour Holdings Pty Ltd v Peter Campbell Earthmoving Pty Ltd [2009] NSWCA 37 CASES CITED : Gough v Gilmour [2005] NSWSC 1155 Kilpatrick Green Pty Ltd v Leading Synthetics Pty Ltd (Gillard J Supreme Court of Victoria 5 June 1998) Kingston v Preston (1773) 2 Doug 689, 99 E.R.437 Mackay v Dick (1881) 6 App Cas 251 S.M.K. Cabinets v Hili Modern Electrics Pty Limited (1984) VR 391 TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380

TEXTS CITED : Carter Contract Law in Australia

PARTIES : Gough & Gilmour Holdings Pty Ltd - Plaintiff Peter Campbell Earthmoving Pty Ltd - Defendant

FILE NUMBER(S) : SC 20491/00

COUNSEL : F Corsaro SC / D F Villa - Plaintiff N Cotman SC / I Griscti - Defendant

SOLICITORS : Minter Ellison - Plaintiff Coleman & Greig - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

THURSDAY 10 DECEMBER 2009

20491/00 GOUGH & GILMOUR HOLDINGS PTY LTD v PETER CAMPBELL EARTHMOVING PTY LTD

JUDGMENT 1 HIS HONOUR: In these proceedings brought by Gough & Gilmour Holdings Pty Ltd ("G & G") against Peter Campbell Earthmoving Pty Ltd ("PCE") I have already delivered two judgments, a judgment described as a preliminary judgment dated 18 November 2005 ([2005] NSWSC 1155) and a judgment dated 9 March 2007 ([2007] NSWSC 172). Orders to give effect to my two earlier judgments were formally made on 27 June 2007. The present judgment is to be read with my earlier judgments and I will not repeat in this judgment all of the matters set out in my earlier judgments and, in particular, all of the factual matters. 2 Summonses by G & G for leave to appeal and by PCE for leave to cross-appeal and then an appeal by G & G and a cross-appeal by PCE were brought. The appeals were heard on 16 February 2009 and the members of the Court of Appeal delivered their reserved judgments on 11 March 2009 ([2009] NSWCA 37). The principal judgment was given by Sackville AJA, with whom the other members of the Court agreed. The Court of Appeal allowed in part both the appeal and the cross-appeal. However, only certain procedural orders were made at that stage, including an order that the parties file written submissions as to the orders which should be made. 3 On 3 June 2009 the Court of Appeal made formal orders. In orders 1, 2 and 3 the Court of Appeal allowed the appeal in part, allowed the cross-appeal in part and set aside a judgment I had entered in favour of PCE. Order 4 made by the Court of Appeal, which gives rise to the present part of the proceedings before me, provided: "4. The matter be referred back to the primary judge for determination of: (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" 4 Order 6 provided: "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." 5 The hearing for the purpose of determining the three matters referred to me by order 4 made by the Court of Appeal commenced on Monday 21 September 2009 and continued all of that week. The matters in pars (a) and (b) of order 4, that is the "breach" and "damages" issues, which are clearly closely related, were dealt with together and separately from the matter in par (c) of order 4, the "defences" issue. 6 On 25 September 2009, when it had become apparent that the hearing could not be concluded that day and would have to be stood over, I directed that the parties lodge a statement of issues relating to the breach and damages issues, if possible a joint statement but otherwise a separate statement by each party. In accordance with this direction each party lodged a separate statement of issues. 7 The hearing of the three matters concluded on 27 October, when I reserved my decision. 8 As happened at the hearing before me, it is convenient in this judgment to deal with the breach and damages issues together, and separately from the defences issue.