Climit Pty Limited v Captech Group Limited

The case of Climit Pty Limited versus Captech Group Limited involved a dispute over the assessment of common law damages for a loss of bargain. The plaintiffs, Climit Pty Limited, sought damages for breach of contract by the defendants, Captech Group Limited. The matter was heard in the Federal Court of Australia. The plaintiffs argued that they were entitled to recover the difference between the expected profit from the contract and what they had actually received, without being required to pursue uncertain litigation against the first defendant. They also contended that even if they were required to pursue such litigation, the first defendant could not meet any verdict they might obtain.

The court had to determine whether the plaintiffs should be compelled to pursue uncertain litigation against the first defendant to establish the full extent of their loss and, if so, whether the first defendant could meet any potential verdict in such litigation. The central issue was the measure of damages for a loss of bargain under common law.

The court held that the plaintiffs were not required to pursue uncertain litigation to establish their loss. It was sufficient for them to demonstrate the extent of the loss as a matter of probability. The court also found that the first defendant could not meet any verdict the plaintiffs might obtain, as their financial position did not permit it. The measure of damages was thus assessed based on the plaintiffs' potential loss, without the need for further litigation.

The court's decision affirmed that the plaintiffs were entitled to common law damages for their loss of bargain, calculated based on the probabilities established in the proceedings, without the necessity of pursuing uncertain litigation. The court did not compel the plaintiffs to undertake such litigation and recognised that the first defendant could not meet any potential verdict. The court's ruling provided clarity on the assessment of damages for loss of bargain in similar future cases.