Current Images Pty Ltd v Dupack Pty Ltd

Current Images Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge in favour of Dupack Pty Ltd (the respondent). The dispute concerned the construction of a contract, the incorporation of certain terms, and the assessment of damages for breach of contract, specifically relating to the date of repudiation and the calculation of loss.

The Court of Appeal was required to determine whether the primary judge erred in considering post-contractual conduct and the subjective intentions of the parties when construing the contract. Further, the Court had to consider whether certain terms were incorporated into the contract in error or if they contradicted the express terms of the principal agreement. Finally, the Court needed to determine the correct date of repudiation for the purpose of assessing damages and whether the appellant had successfully demonstrated its loss, including the extent to which it had mitigated that loss.

The Court of Appeal found that the primary judge had erred in considering post-contractual conduct and subjective intentions, as contractual construction should primarily focus on the objective meaning of the words used in the contract. The Court also determined that certain incorporated terms were indeed in error and contradicted the principal agreement. Regarding damages, the Court found that the primary judge had incorrectly calculated the loss of bargain and had not properly considered the onus on the respondent to prove mitigation. Consequently, the appeal was allowed, and the primary judge's orders were set aside. The Court entered judgment for the appellant against the respondent for $157,947, with further submissions to be made regarding interest and costs.