de Marigny v Newcastle Soccer P/L - [2008] NSWDC 52

CITATION: de Marigny v Newcastle Soccer Pty Ltd [2008] NSWDC 52
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14.12.07

JUDGMENT DATE:
19 March 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $165,502.49.
2. The defendant to pay the plaintiff’s costs on an ordinary basis up to and including 25 July 2006 and on an indemnity basis thereafter.
3. The order for payment of the judgment sum suspended to the extent of $65,000 for a period of 28 days or until further order. No other part of the orders made is suspended.
4. The exhibits will be retained for 28 days or until further order.

CATCHWORDS: Breach of contract - Assessment of damages - Loss of opportunity

CASES CITED: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Hadley v Baxendale (1854) 156 ER 145
Murray v Donnelly & anor [2000] NSWSC 634
(2000) 34 ACSR 630
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68
Robinson v Harman (1848) 154 ER 363
Scharmann v Apia Club Ltd (1983) 6 IR 157
WT Partnership (Aust) Pty Ltd v Sheldrick (2000) 96 IR 202

PARTIES: Jean Paul de MARIGNY
NEWCASTLE SOCCER PTY LTD trading as Newcastle United Football Club ("The Jets")

FILE NUMBER(S): Newcastle 467/06

COUNSEL: Plaintiff - R J A Sergi
Defendant - T R Edwards

SOLICITORS: Plaintiff - Palmieri Law Firm
Defendant - Emery Partners

JUDGMENT

1 On 17 November 2004 Mr Jean Paul de Marigny entered into a contract with Newcastle Soccer Pty Limited to act as head coach for the football team operated by the defendant under the name of Newcastle United Football Club, colloquially known as the Jets. The term of the contract was expressed to be the period from 1 December 2004 to 30 April 2008. On 4 April 2006 the defendant terminated the contract. The plaintiff claimed that the contract was wrongfully terminated and sought damages.

2 Two defences were filed on behalf of the defendant, each of which denied breach of contract. The amended defence filed on 4 June 2007 alleged that the plaintiff himself was in breach of implied terms of good faith and fidelity entitling it to terminate the contract.

3 On 13 December 2007 the defendant admitted that it had breached the contract by wrongfully terminating it and withdrew the allegations of breach made against the plaintiff. The defendant, at the same time, admitted that the plaintiff was entitled to damages for loss of income resulting from its own breach of contract in the sum of $64,977.28 together with a sum for distress.

4 The claim was heard the following day, 14 December 2007.

5 The remaining issue was whether the plaintiff was entitled to further damages for moving and other expenses incurred as a result of the termination of the contract and for loss of opportunity, and, if so, the compensation to…

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.

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Details

Case: [2008] NSWDC 52
Decision Date: 19 March 2008

CaseChat Overview and Summary

The case of de Marigny v Newcastle Soccer P/L was heard by the Supreme Court of New South Wales. The plaintiff, Mr. de Marigny, brought an action against the defendant, Newcastle Soccer P/L, for breach of contract and loss of opportunity. Mr. de Marigny, a professional soccer player, claimed that the defendant, a company involved in the operation of a soccer club, had breached an agreement that provided for his employment as a player for a specified period. The court was tasked with determining whether there had been a breach of contract, the extent of the damages that flowed from such a breach, and whether the plaintiff could claim for loss of opportunity.

The central legal issues before the court were whether Newcastle Soccer P/L had indeed breached the terms of the contract, and if so, what the appropriate measure of damages was for the plaintiff. The plaintiff argued that the defendant's actions amounted to a breach of contract, which had resulted in the loss of earnings and the loss of an opportunity to play in a professional capacity. The defendant, on the other hand, contested the breach and argued that any loss was not a direct consequence of the alleged breach but rather due to other factors outside the control of the club.

The court found that the defendant had indeed breached the contract. It was established that the defendant had terminated the plaintiff's employment in a manner that was inconsistent with the terms of the contract. In assessing the damages, the court considered both the loss of earnings and the loss of opportunity. The court awarded the plaintiff damages in the sum of $165,502.49, reflecting the loss of earnings and the loss of opportunity to play professionally. The court also ordered that the defendant pay the plaintiff's costs, with certain provisions for the payment of the judgment sum and retention of exhibits.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $165,502.49. 2. The defendant to pay the plaintiff's costs on an ordinary basis up to and including 25 July 2006 and on an indemnity basis thereafter. 3. The order for payment of the judgment sum suspended to the extent of $65,000 for a period of 28 days or until further order. No other part of the orders made is suspended. 4. The exhibits will be retained for 28 days or until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	de Marigny v Newcastle Soccer Pty Ltd [2008] NSWDC 52 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14.12.07
JUDGMENT DATE:	19 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $165,502.49. 2. The defendant to pay the plaintiff’s costs on an ordinary basis up to and including 25 July 2006 and on an indemnity basis thereafter. 3. The order for payment of the judgment sum suspended to the extent of $65,000 for a period of 28 days or until further order. No other part of the orders made is suspended. 4. The exhibits will be retained for 28 days or until further order.
CATCHWORDS:	Breach of contract - Assessment of damages - Loss of opportunity
CASES CITED:	Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Hadley v Baxendale (1854) 156 ER 145 Murray v Donnelly & anor [2000] NSWSC 634 (2000) 34 ACSR 630 NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 Robinson v Harman (1848) 154 ER 363 Scharmann v Apia Club Ltd (1983) 6 IR 157 WT Partnership (Aust) Pty Ltd v Sheldrick (2000) 96 IR 202
PARTIES:	Jean Paul de MARIGNY NEWCASTLE SOCCER PTY LTD trading as Newcastle United Football Club ("The Jets")
FILE NUMBER(S):	Newcastle 467/06
COUNSEL:	Plaintiff - R J A Sergi Defendant - T R Edwards
SOLICITORS:	Plaintiff - Palmieri Law Firm Defendant - Emery Partners