Diveva Pty Ltd v Port Macquarie-Hastings Council [2016] NSWSC 1790

Supreme Court New South Wales

Medium Neutral Citation: Diveva Pty Ltd v Port Macquarie-Hastings Council [2016] NSWSC 1790 Hearing dates: 21-23 March 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Before: Hall J Decision: 1. The plaintiff is entitled to an award of damages against the defendant for breach of contract. 2. The parties are to prepare short minutes of order to give effect to this judgment. 3. The defendant is to pay the plaintiff's costs of the proceedings. In the event that either party wishes to be heard further on the question of costs, I grant leave to apply in that respect. Catchwords: CONTRACT – dispute between plaintiff construction company and defendant local council arising out of the supply, delivery and laying of asphalt – nature and purpose of the option provision in the contract – whether the option provision on its proper construction granted the plaintiff an option to extend the contract or whether the option was one exercisable by the defendant council – assuming the option was exercisable by the plaintiff, whether a term ought to be implied into the contract to the effect that the option was not exercisable if the plaintiff company was in breach – whether the plaintiff breached the contract – calculation of damages – no defence of failure to mitigate – likelihood of plaintiff being successful in future tenders – assessment of expectation damages and damages for loss of chance for the renewal of the contract Legislation Cited: Local Government Act 1993 Local Government (General) Regulation 2005 Cases Cited: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82 Heimann v The Commonwealth (1938) 38 SR (NSW) 691 JP Morgan Australia Ltd v Consolidated Minerals Pty Ltd [2011] NSWCA 3 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522; [2005] HCA 17 Category: Principal judgment Parties: Diveva Pty Limited t/as Mid Coast Road Services (Plaintiff) Port Macquarie-Hastings Council (Defendant) Representation: Counsel: J Giles SC and J Granger (Plaintiff) B DeBuse (Defendant)