Bayside Council v V Corp Constructions Pty Ltd [2017] NSWCA 120

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bayside Council v V Corp Constructions Pty Ltd [2017] NSWCA 120 Hearing dates: 27 March 2017 Decision date: 31 May 2017 Before: Basten JA at [1]; Macfarlan JA at [65]; Ward JA at [66] Decision: (1) Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council's claim against V Corp Constructions Pty Ltd.

(2) Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council's claim against Paul Aramini.

(3) Order that the Council pay the costs of both respondents of the proceedings in this Court. Catchwords: CONTRACTS – breach of contract – deed required respondent developer to "procure replacement" of above ground electricity cables with underground cables in accordance with Energy Australia's requirements – Energy Australia refused permission to undertake works – whether developer's resultant failure to procure work constituted breach of agreement – whether Energy Australia's approval necessary condition of fulfilment

DAMAGES – alleged loss suffered by Council as result of breach of contract by developer – Council claimed damages equivalent to costs of undertaking works not completed by developer – whether loss demonstrated in circumstances where works unable to proceed without Energy Australia's approval Legislation Cited: Electricity Supply Act 1995 (NSW), s 65 Environmental Planning and Assessment Act 1979 (NSW), ss 96, 149A-149E Cases Cited: Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 Berry v Berry [1929] 2 KB 315 BP Refinery (Westernport) Pty Ltd v Shire of Hasting (1977) 180 CLR 266 Butts v O'Dwyer (1952) 87 CLR 267 Cushman & Wakefield (NSW) Pty Ltd v Farrell [2017] NSWCA 24 Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279 Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2008] NSWCA 257 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Jireh International Pty Ltd t/as Gloria Jeans Coffee v Western Exports Services Inc [2011] NSWCA 13 OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 Texts Cited: K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Lawbook Co) at 320 Category: Principal judgment Parties: Bayside Council (formerly Council of the City of Botany Bay) (Appellant) V Corp Constructions Pty Ltd (First Respondent) Paul Aramini (Second Respondent) Representation: Counsel: Mr T S Hale SC/Ms G R Rubagotti (Appellant) Mr I R Pike SC/Mr D C Price (First Respondent) Mr G E S Ng (Second Respondent)