McCartney v Orica Investments Pty Ltd

In *McCartney v Orica Investments Pty Ltd*, the New South Wales Court of Appeal considered an appeal concerning damages awarded for a breach of contract. The dispute arose from the defendant's actions, which allegedly caused a supplier of goods to cease their supply to the plaintiff. The central question on appeal was whether the primary judge had erred in assessing the likelihood that the supplier would have ceased supply even in the absence of the defendant's breach, and whether the primary judge had wrongly rejected certain evidence from the supplier.

The Court of Appeal was required to determine whether the primary judge's findings regarding the supplier's intention to cease supply were infected by error, particularly in relation to the assessment of likelihood and the rejection of evidence. The appellate judges also had to consider the nature of appellate review of credibility-based findings and assessments of likelihood, and the principles governing the drawing of inferences in favour of a plaintiff when a defendant's wrongdoing has made the quantification of damages difficult.

The Court found that the primary judge had made an error in rejecting the supplier's evidence and in assessing the likelihood that the supplier would have ceased supply. The Court applied principles of appellate review, noting that while appellate courts are hesitant to overturn credibility findings, they are more willing to intervene where there is an error in the assessment of likelihood or a misapplication of legal principles. The Court also affirmed the principle that where a defendant's conduct makes it difficult to quantify damages, inferences should be drawn in favour of the plaintiff.

The Court of Appeal directed the parties to inform the Associate to Giles JA by joint memorandum regarding any corrections to the calculation of damages and whether a limited new trial was to be ordered. Further directions were given for the parties to file and serve submissions and draft orders concerning the repayment of the judgment sum, costs of the hearing before the primary judge, and costs of the appeal, with the Court to determine these matters on written submissions unless an oral hearing was requested or deemed necessary.