Marcourt v Clark

Case [2012] NSWCA 367

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Macourt v Clark [2012] NSWCA 367
Hearing dates:24 September 2012
Decision date: 09 November 2012
Before: Beazley JA at [1]; Barrett JA at [2]; Tobias AJA at [12]
Decision:

(a) Appeal allowed.

(b) Cross-appeal dismissed.

(c) Set aside the orders made by Gzell J on 8 November 2011.

(d) Direct the parties within 14 days of the publication of these reasons to file short minutes of order to reflect these reasons and within the same period to file and serve, if otherwise there is any dispute, written submissions not exceeding three pages on the issue of the costs of the trial and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DAMAGES - assisted reproductive technology practice - damages for breach of various warranties contained in the Deed relating to donor sperm - proper categorisation of the contract - whether the trial judge erred in not concluding that the respondent had fully mitigated her loss - whether the respondent avoided the loss she otherwise would have sustained by having to replace the non-compliant sperm by charging her patients for the cost of replacement sperm - whether the damages suffered by the respondent included the cost of maintaining the appellant's telephone service for six years COSTS - whether the respondent would have been entitled to indemnity costs if the award of damages was upheld in her favour
Legislation Cited: Human Cloning for Reproduction and Other Prohibited Practices Act 2003 Human Tissue Act 1983 Sale of Goods Act 1923 Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310 Barakat v Bazdarova [2012] NSWCA 140 British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673 Gagner Pty Ltd (t/as Indochine Cafe) v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691 Golden Strait Corp v Nippon Yusen Kubishika Kaisha [2007] 2 WLR 691; [2007] 3 All ER 1 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [2000] FCA 660; (2000) 173 ALR 263 House v The King (1936) 55 CLR 499 Hussey v Eels [1990] 2 QB 227 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Koch Marine Inc v D'Amica Societa di Navigazione ARL (1980) 1 Lloyd's Rep 75 Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 Morgan v Johnson (1998) 44 NSWLR 578 McCrohan v Harith [2010] NSWCA 67 Monroe Schneider Associates (Inc) v No 1…

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AGLC
Macourt v Clark [2012] NSWCA 367
Case
[2012] NSWCA 367
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Marcourt (appellant) and Clark (respondent) regarding damages for alleged breaches of warranties within a deed relating to donor sperm. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in their assessment of damages. Specifically, the court considered whether the respondent had adequately mitigated her loss by charging her patients for the cost of replacement sperm, and whether the damages awarded should have included the cost of maintaining the appellant's telephone service for six years. The court also considered the entitlement to indemnity costs if the damages award was upheld.

The Court of Appeal allowed the appeal and dismissed the cross-appeal, setting aside the orders made by Gzell J on 8 November 2011. The court directed the parties to file short minutes of order reflecting their reasons within 14 days, and within the same period, to file written submissions on the issue of the costs of the trial and the appeal if any dispute remained.

Orders

Orders of the court

(a) Appeal allowed.

(b) Cross-appeal dismissed.

(c) Set aside the orders made by Gzell J on 8 November 2011.

(d) Direct the parties within 14 days of the publication of these reasons to file short minutes of order to reflect these reasons and within the same period to file and serve, if otherwise there is any dispute, written submissions not exceeding three pages on the issue of the costs of the trial and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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