Marcourt v Clark

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.