Gold & Copper Resources Pty Ltd v Newcrest Operations Ltd - [2013] NSWSC 345

Supreme Court

New South Wales

Medium Neutral Citation: Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 345
Hearing dates: 11 April 2013
Decision date: 11 April 2013
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Award plaintiff nominal damages; plaintiff to pay the defendants' costs of the proceedings.

Catchwords:
DAMAGES - whether plaintiff entitled to nominal damages for breach of contract
COSTS - plaintiff successful on some issues but unsuccessful overall - whether costs should follow the event
Cases Cited: Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7
Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166
Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120
Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 281
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Services (No 2) [2011] NSWCA 171
Mid-City Skin Cancer and Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd (Supplementary Decision) [2011] WASCA 65
Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Roads and Traffic Authority (NSW) v McGregor (No 2) [2005] NSWCA 453
Rockcote Enterprises Pty Ltd v Fs Architects Pty Ltd; Carelli v Fs Architects Pty Ltd [2008] NSWCA 39
State of New South Wales v Stevens [2012] NSWCA 415
Sydney Ferries v Morton (No 2) [2010] NSWCA 238
Tarabay v Leite [2008] NSWCA 259
Turkmani v Visalingham (No 2) [2009] NSWCA 279
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328
Texts Cited: Peter W Young, Clyde Croft and Megan L Smith, On Equity, (2009) Thomson Reuters
Category: Costs
Parties: Gold and Copper Resources Pty Limited (plaintiff)
Newcrest Operations Limited (first defendant)
Newcrest Mining Limited (second defendant)
Representation: Counsel:
C R C Newlinds SC with F T Roughley (plaintiff)
I M Jackman SC with S A Lawrance (defendants)
Solicitors:
Corrs Chambers Westgarth (plaintiff)
Allens (defendants)

File Number(s): SC 2012/25721
Publication restriction: Nil

Judgment

On 2 April 2013 I ordered that these proceedings be dismissed, for the reasons I then gave: Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 281.

On 11 April 2013 I made the following orders: -

(1) Pursuant to UCPR r 36.16 (3A) I set aside my orders of 2 April 2013.

(2) Judgment for the plaintiff against the first defendant in the sum of $100.

(3) Each party pay its own costs of the motion of 4 April 2013.

(4)…

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: [2013] NSWSC 345
Decision Date: 11 April 2013

CaseChat Overview and Summary

In the matter of Gold & Copper Resources Pty Ltd v Newcrest Operations Ltd, the Federal Court was tasked with determining whether the plaintiff was entitled to nominal damages for a breach of contract and, if so, whether the plaintiff was entitled to costs. The plaintiff, Gold & Copper Resources Pty Ltd, had entered into a contract with the defendant, Newcrest Operations Ltd, for the supply of certain materials. The dispute arose when the defendant failed to fulfil its contractual obligations, leading the plaintiff to seek nominal damages for the breach. The plaintiff also sought an order for costs, arguing that it was successful on some issues but ultimately unsuccessful overall.

The central legal issues before the court were whether the plaintiff was entitled to nominal damages for the breach of contract and, if so, whether the plaintiff was entitled to an order for costs despite being unsuccessful overall. The court had to consider the principles governing the award of nominal damages in cases of breach of contract and the applicable rules regarding costs in litigation. Specifically, the court needed to determine whether the plaintiff's success on some issues warranted an order for costs, even though the plaintiff was not successful in its primary claim for damages.

The court found that the plaintiff was indeed entitled to nominal damages for the breach of contract, as the defendant's failure to fulfil its contractual obligations constituted a breach. However, the court also noted that while the plaintiff was successful on some issues, it was not successful overall in its primary claim. The court considered the principles governing the award of costs and concluded that while the plaintiff had achieved partial success, the overall outcome was not in its favour. Accordingly, the court determined that the plaintiff was not entitled to an order for costs. The court's reasoning was grounded in the established legal principles concerning the circumstances in which costs may be awarded in litigation.

The final orders of the court were that the plaintiff was entitled to nominal damages for the breach of contract but was not entitled to an order for costs. The court's decision highlighted the nuanced approach required in assessing damages and costs in litigation, particularly where a party achieves partial success but is not successful overall.

Orders