St George Fertility Centre Pty Ltd v Clark - [2011] NSWSC 1276

Supreme Court

New South Wales

Medium Neutral Citation: St George Fertility Centre Pty Ltd v Clark [2011] NSWSC 1276
Hearing dates: 26, 27, 28 September 2011
Decision date: 25 October 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Damages assessed on hypothetical purchase from only supplier with no credit for betterment on number of straws of those supplied that cross-claimant expected to use.

Catchwords: DAMAGES - General Principles - breach of contract - sale of goods - Robinson v Harman - plaintiff conducting an assisted reproduction technology practice - hypothetical sale and purchase of straws of sperm - sperm supplied valueless - assessment of time of breach - whether subsequent changes in legislation, codes of practice and ethical guidelines should be taken into account - whether credit should be given for betterment
Legislation Cited: Sale of Goods Act 1923
Sale of Goods Act 1893 (UK)
Assisted Reproductive Technology Act 2007
Human Tissue Act 1983
Health Legislation Amendment Act 2004
Human Tissue Regulation 2005
Cases Cited: Robinson v Harman (1848) 1 Exch 850; (1848) 154 ER 363
Ruxley Electronics and Construction Ltd v Forsyth [1994] 1 WLR 650; [1994] 3 All ER 801
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2008-2009) 236 CLR 272
The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Golden Strait Corp v Nippon Yusen Kubishika Kaisha [2007] 2 WLR 691; [2007] 3 All ER 1
Gagner Pty Ltd (t/as Indochine Cafe) v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691
Dodd Properties Ltd v Canterbury City Council [1980] 1 All ER 928
Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Roberts v Rodier [2006] NSWSC 282; (2006) 12 BPR 98191
Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors [2003] NSWSC 1016
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
Commercial & Accounting Services (Camden) v Cummins [2011] NSWSC 843
Category: Costs
Parties: St George Fertility Centre Pty Ltd (Plaintiff/First Cross-Defendant)
Anne Clark (Defendant/Cross-Claimant)
David Charles Ross Macourt (Second Cross-Defendant)
Representation: Counsel
C Harris SC/ H Altan (Plaintiff/Cross-Defendants)
A Leopold SC/ A Vincent (Defendant/Cross-Claimant)
Solicitors
Redmond Hale Simpson Solicitors (Plaintiff/Cross-Defendants)
Norton Rose Australia (Defendant/Cross-Claimant)

File Number(s): 2006/255614

Judgment

Introduction

Liability in this matter has been determined. On her further amended statement of cross-claim, Anne Clark obtained summary judgment against the first cross-defendant, St George Fertility Centre Pty Ltd, for breach of various warranties in a deed by which it sold assets to Dr Clark. She also obtained summary judgment against the second cross-defendant, David Charles Ross Macourt, the director of St George Fertility who had given a guarantee…

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: [2011] NSWSC 1276
Decision Date: 25 October 2011

CaseChat Overview and Summary

The plaintiff, St George Fertility Centre Pty Ltd, conducted a practice involving assisted reproductive technology. The defendant, Clark, had supplied sperm to the plaintiff for use in the practice. However, the sperm turned out to be valueless. The plaintiff sued for damages, claiming that the sperm was not fit for the purpose for which it was supplied. The case was heard in the Supreme Court of New South Wales.

The central legal issues in the case were the assessment of damages for breach of contract in the sale of goods and the appropriate time to measure the value of the goods. The court had to determine whether subsequent changes in legislation, codes of practice, and ethical guidelines should be taken into account when assessing the value of the sperm. Additionally, the court needed to decide whether credit should be given for any betterment of the sperm after the breach.

The court held that the value of the sperm at the time of the breach should be assessed, taking into account the circumstances at that time. The court found that subsequent changes in legislation, codes of practice, and ethical guidelines should not be considered when determining the value of the sperm at the time of the breach. The court also ruled that no credit should be given for any betterment of the sperm after the breach. The court awarded the plaintiff damages for the breach of contract, calculated based on the value of the sperm at the time of the breach. The court further ordered that the plaintiff was not entitled to any credit for any subsequent improvement in the value of the sperm.

Orders