Ausminco Mining Equipment Suppliers Pty Ltd v Liwood Pty Ltd t/a Blakey Engineering

[1997] QCA 448

IN THE COURT OF APPEAL	[1997] QCA 448
SUPREME COURT OF QUEENSLAND

Appeal No.2120 of 1997

Brisbane

[Ausminco Mining Equipment Suppliers P/L v. Liwood P/L]

BETWEEN:

AUSMINCO MINING EQUIPMENT SUPPLIERS PTY LTD

ACN 002 822 522

(Defendant) Appellant

AND:

LIWOOD PTY LTD ACN 002 221 436

Trading as BLAKEY ENGINEERING

(Plaintiff) Respondent

Davies JA
McPherson JA

Thomas J

Judgment delivered 19 December 1997.

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL ALLOWED TO EXTENT OF ORDERING THAT JUDGMENT BE VARIED BY REPLACING THE FIGURE OF $259,350 WITH THE FIGURE $234,000. PARTIES GRANTED LEAVE TO MAKE SUBMISSIONS IN WRITING RELATING TO COSTS AT TRIAL AND UPON APPEAL WITHIN FOURTEEN DAYS OF NOTIFICATION OF JUDGMENT BY THE REGISTRAR TO THE SOLICITORS FOR THE PARTIES.

CATCHWORDS:	CONTRACT - Damages - 3 year appointment to run joint service facility - Wrongful termination by Defendant - Damages assessed by forward projection of Plaintiff's past profits - Whether Trial Judge's finding sustainable.
DAMAGES - Voluntary sale by Defendant of its business before a 3 year period expired - Whether damages should be nil after such sale - Breach of ante to enable other party to have benefit of contract - Breach of obligation to keep business running for at least 3 years.
INTEREST - Error in calculating interest on full amount of damages from date of breach when damages were progressively suffered thereafter - Halving exercise necessary - Camm v Salter [1992] 2 Qd R 342 applied - Whether 12% should be generally allowed.
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596.
Counsel:	Mr R N Chesterman QC, with him Mr P O Land for the appellant. Mr P A Keane QC, with him Mr G T Britton for the respondent.
Solicitors:	Beckey Knight & Elliot for the appellant.

McInnes Wilson as town agents for Peter Searles & Associates, Mackay, for the respondent.

Hearing Date:  1 December 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2120 of 1997

Brisbane

Before Davies J.A.
McPherson J.A.
Thomas J.

[Ausminco Mining Equipment Suppliers P/L v. Liwood P/L]

BETWEEN:

AUSMINCO MINING EQUIPMENT SUPPLIERS PTY. LTD.

ACN 002 822 522

(Defendant) Appellant

AND:

LIWOOD PTY. LTD. ACN 002 221 436

trading as BLAKEY ENGINEERING

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 19 December 1997

I agree that the appeal should be allowed for the reasons given by Thomas J. and McPherson J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2120 of 1997

Brisbane

Before Davies J.A.
McPherson J.A.
Thomas J.

[Ausminco Mining Equipment Suppliers P/L v. Liwood P/L]

BETWEEN:

AUSMINCO MINING EQUIPMENT SUPPLIERS PTY. LTD.
ACN 002 822 522

(Defendant) Appellant

AND:

LIWOOD PTY. LTD. ACN 002 221 436

trading as BLAKEY ENGINEERING

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 December 1997

I agree that, for the reasons given by Thomas J., this appeal should be allowed to the extent of

varying the amount for which judgment was given from $259,350 to $234,000. The matter of costs

should be reserved on the terms proposed by his Honour in those reasons.

For my part, I am disposed to think that the rate of 12% per annum at which interest is currently being calculated in awarding damages may, in the light of prevailing conditions, now merit re- consideration; but the matter was not raised at the trial or on the appeal in this matter, and there is

consequently no reason to review it in this case.