Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd

Hyder Consulting (Australia) Pty Ltd appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision concerning a contract for the construction of a pavement. The dispute arose after the pavement collapsed following approximately four years of use. The primary legal questions before the Court of Appeal were whether the terms of the Australian Conditions of Engagement (ACEA) limiting liability were incorporated into the contract and, if so, how damages should be assessed, including whether a reduction for betterment was appropriate.

The Court of Appeal considered the principles of contract formation and the incorporation of standard terms. It examined the evidence presented regarding the parties' conduct and communications to determine if the ACEA terms had been effectively incorporated into the agreement. Furthermore, the Court addressed the principles of assessing damages in contract, specifically the concept of betterment, which allows for a reduction in damages where the innocent party receives an improvement to their property that exceeds what they were originally entitled to under the contract.

The Court of Appeal allowed the appeal, finding that the ACEA terms limiting liability were indeed part of the contract. Consequently, the Court also allowed the cross-appeal concerning the assessment of damages, applying the principle of betterment to reduce the award. The specific orders made by the Court of Appeal reflected these findings, modifying the original judgment to account for the incorporated liability limitations and the appropriate calculation of damages.