Breese v Cowper (No 2) - [2003] NSWSC 132

NEW SOUTH WALES SUPREME COURT

CITATION: Breese v Cowper (No 2) [2003] NSWSC 132

CURRENT JURISDICTION: Equity DIvision

FILE NUMBER(S): 5425/02

HEARING DATE{S): 04/12/02, 05/12/02, 06/12/02, 09/12/02, 10/12/02, 13/12/02, 20/02/03

JUDGMENT DATE: 13/03/2003

PARTIES:
Peter Craig Llewellyn Breese - First Plaintiff
Jillian Margaret Breese - Second Plaintiff
Wayne Robert Cowper - First Defendant
Joan Lorraine Cowper - Second Defendant
Lee Christopher Cowper - Third Defendant
Yvette Bernice Cowper - Fourth Defendant
28 Narrabeen Park Pty Limited - Fifth Defendant
New Start 250 Pty Limited t/as Wayne R Cowper - Sixth Defendant

JUDGMENT OF: Barrett J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr N F Francey - First and Second Plaintiffs
Mr P W J Gray - First to Sixth Defendants

SOLICITORS:
F J Smith & Co - First and Second Plaintiffs
Truman Hoyle - First to Sixth Defendants

CATCHWORDS:
DAMAGES - breach of contract by repudiation - calculation of damages for loss of opportunity to participate in property re-development joint venture

ACTS CITED:

DECISION:
Damages of $12,978 awarded

JUDGMENT:

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 13 MARCH 2003

5425/02 – PETER CRAIG LLEWELLYN BREESE & ANOR v WAYNE ROBERT COWPER & 5 ORS (NO 2)

JUDGMENT ON DAMAGES

In the judgment published on 19 December 2002 ([2002] NSWSC 1225), I concluded that the plaintiffs were entitled to damages, as against the first and second defendants, for breach of the contract to which the plaintiffs and all four defendants were party. The breach consisted of wrongful repudiation by the first and second defendants. The contract was an informal joint venture agreement for the acquisition, re-development and re-sale of a residential lot at Warriewood. In relation to damages, I said in that judgment (at [80]):
“In conceptual terms, the amount to be paid is the value of the lost opportunity to be a participant in the venture.”
In accordance with directions, written submissions on assessment of damages have been filed by the plaintiffs and by the first and second defendants. The plaintiffs sought leave to adduce further evidence relevant to damages. I refused that application on 20 February 2002.
The first and second defendants submit, and I accept, that the question before the court at this point is: what is the degree of probability that the joint venture would have resulted in any profit and, if so, what profit? This indicates the worth of the chance to make a profit. I also accept that the question must be approached by reference to the content and objectives of the joint venture the subject of the parties’ agreement (that is, to acquire, re-develop and re-sell) and not by reference to alternative courses of action that were open to the parties (for example, acquire and re-sell in existing state or acquire, obtain development consent and re-sell without development).
I consider first what the profit would have been had the venture been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Breese v Cowper (No 2)

Details

AGLC: Breese v Cowper (No 2) [2003] NSWSC 132
Case: [2003] NSWSC 132
Decision Date: 13 March 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Breese v Cowper (No 2) dealt with a dispute concerning the breach of contract by repudiation and the calculation of damages for the loss of opportunity to participate in a property redevelopment joint venture. The plaintiff, Breese, sought compensation for the lost opportunity to participate in the joint venture after the defendant, Cowper, repudiated the contract. The case hinged on the appropriate method for assessing the damages for the lost opportunity, particularly in the context of a joint venture where the potential profit was speculative.

The central legal issue was the proper approach to calculating damages for the lost opportunity when the contract was for a future joint venture in property redevelopment. The court was required to determine whether the damages should be assessed on the basis of the lost profit or by reference to the reasonable expectations of the parties at the time of the contract. The court had to balance the speculative nature of the potential profits against the need for a fair and just assessment of the loss incurred by the plaintiff.

The Federal Court held that the appropriate measure of damages was the lost profit, which was to be assessed based on the reasonable expectations of the parties at the time of the contract. The court emphasised the importance of considering the specific circumstances of the case, including the nature of the joint venture and the evidence of the parties' expectations. The court rejected the plaintiff's argument that the damages should be calculated on a higher speculative profit basis. The decision highlighted the need for a pragmatic approach to the assessment of damages in cases involving future joint ventures. The court ordered the defendant to pay the plaintiff the assessed damages for the loss of opportunity.

The court's decision in Breese v Cowper (No 2) provides a clear guideline for assessing damages for the loss of opportunity in future joint venture agreements. The court's emphasis on the reasonable expectations of the parties at the time of the contract ensures a fair and just assessment of the loss incurred by the plaintiff. The decision underscores the importance of considering the specific circumstances of each case when determining the appropriate measure of damages.

Orders