FE Accommodation Pty Ltd & Anor v Gold Valley Iron Ore Pty Ltd [2025] NTCA 8

Third, generally speaking, the Plant and Equipment comprised items which had been in place for use in a mining operation since 2014. Many of the items were bulky, and were difficult and expensive to transport from their remote location on the mineral leases to locations where buyers might be found.

Fourth, in July 2018, the defendant removed the Removed Items from the mineral leases and retained possession of them at a location not disclosed to the second plaintiff until 30 August 2018. Around half of those were recovered by the second plaintiff in February 2021, but the remainder remain where the defendant took them.

These matters (the second, third and fourth just referred to) effectively denied the existence of an available market for the Plant and Equipment because buyers and sellers were not procurable at once and within a reasonable distance in sufficient numbers to constitute the relationship of supply and demand and the consequent establishment of a price.[103]

Fifth, the sale of almost all of the Plant and Equipment that remained on the mineral leases to Britmar in situ and for use in a mining operation was a commercially rational way for the second plaintiff to mitigate its losses arising from the defendant's breach of the Contract of Sale and the second plaintiff received monies from that sale paid between July 2019 and January 2024. In accordance with the principles set out above, the second plaintiff cannot recover damages for its losses avoided by that sale. The monies received from Britmar under the G&C Asset Sale Deed cannot be adopted as a proxy for the market price of the Plant and Equipment in the way done in Clark v Macourt because Britmar purchased only around half of the Plant and Equipment as that was all that was on the mineral leases after the defendant removed the Removed Items.

Consequently, I find the prima facie measure to be displaced, and I reject the defendant's arguments that the second plaintiff's claim for damages must fail because: (a) damages are to be assessed on the basis of the market price of the Plant and Equipment as at 30 August 2018, which has not been proved by the plaintiffs; or (b) the plaintiffs have failed to prove that there was no available market on that date.

• [123] Gold Valley contends that this conclusion is erroneous for the following reasons:

(a) Gold Valley contends that FE and G&C did not adduce any evidence as to the nature and extent of the market in respect of the Camp and the Plant and Equipment and as to whether it was "available" in the sense used by the authorities. Gold Valley contends that the sales to Britmar and the other buyer show there was a market.

(b) Gold Valley contends that FE and G&C produced a report by Mr Ossendryver which attested to the "Fair Market Value" of the Camp and the Plant and Equipment as at 30 August 2018, the date the Contract was terminated, although it was not produced in time to be used at the trial. Gold Valley contends that this is the evidence the prima facie measure of damages requires and that Mr Ossendryver "necessarily would have knowledge of the relevant market" in order to produce that report.

• [124] Neither of these contentions can be accepted.
• [125] In Joseph & Co Pty Ltd v Harvest Grain Co Pty Ltd,[104] referred to by the trial judge, contains the following discussion of the concept of "available market".

Benjamin's Sale of Goods, 4th ed (1992) at s16-053 examines some possible meanings of the expression. The learned authors (at s16-056) submit that the courts are likely to eschew formal limitations on the meaning of "available market", and cite authorities in support of that proposition.

Sutton in Sales and Consumer Law, 4th ed (1995) at 21.42 states:

Available market then would seem to mean that buyers and sellers are procurable at once and within a reasonable distance of the aggrieved party in sufficient numbers to constitute the relationship of supply and demand and the consequent establishment of a price.

In Thompson (W L) Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177, the decision turned on whether or not there was an available market. Upjohn J (as he then was), after reviewing the authorities, held (at 187):

Had the matter been res integra I think that I should have found that an 'available market' merely means that the situation in the particular trade in the particular area was such that the particular goods could freely be sold, and that there was a sufficient demand to absorb readily all the goods that were thrust on it, so that if a purchaser defaulted, the goods in question could readily be disposed of.

• [126] Further guidance as to the meaning of "available market" may be found in Benjamin's Sale of Goods (Eighth Edition).

• The availability of buyers and sellers and their ready capacity to supply or absorb the relevant goods is the basic concept of an "available market".[105]
  • There must be "sufficient traders potentially in touch with each other to evidence a market in which the actual or notional seller could if he wished sell the goods.[106]
  • The word "available" should be given both a temporal and a geographical meaning: the buyers or sellers should be immediately accessible and within a reasonable distance of where the breach of contract occurs so that there is a possibility of an immediate sale and purchase.[107]
  • [T]he temporal test should be one of a reasonable time after the breach, given the nature of the goods in question.[108]

1. The size of the alleged market will be relevant to the decision whether it is an available market: thus, a few sales of small quantities of the relevant goods will not constitute an available market.[109]

• It is most unlikely that there will be an available market where the goods have been (or were to be) specially manufactured to suit the peculiar requirements of the buyer; the chance of resale of such goods within a reasonable time after the breach is too limited and fortuitous.[110]
• [127] The trial judge rightly applied the test for an "available market" at [127] when her Honour held that the matters set out in the paragraphs quoted above "effectively denied the existence of an available market for the Plant and Equipment because buyers and sellers were not procurable at once and within a reasonable distance in sufficient numbers to constitute the relationship of supply and demand and the consequent establishment of a price.[111] It should be noted that FE did not obtain a buyer for the Camp (and then only for part of the Camp) until March 2019, around seven months after the breach and a buyer for some of the rest of the Camp until August 2021, two years after the breach. Some items were never sold to a third party but transferred to a related party essentially for the cost of transport.
• [128] The fact that Mr Ossendryver gave an opinion as to what he referred to as the "fair market price" of the Camp, Plant and Equipment as at the date of termination of the Contract, says nothing about whether there was in fact an "available market" for the Chattels within the meaning of the SGA. It cannot be inferred from the fact that he (an accountant) used the word "market" in giving his opinion as to the value of the goods at the date of termination of the Contract that he turned his mind to the existence of an "available market" in the relevant sense.
• [129] As for evidence of the non-existence of an available market, the trial judge was entitled to take into account the evidence set out in the judgment at [123] to [126] in assessing whether there was an available market for the Camp and the Plant and Equipment, (quoted at [121] above). There is no error in her Honour's reasoning or conclusion that there was no available market for the Chattels and that the prima facie measure of damages had been displaced. None of Gold Valley's reasons for rejecting the trial judge's findings, based on that evidence[112] is compelling when measured against the concept of "available market". It is simply common sense, for example that the location of the Camp and some of the Plant and Equipment on a remote mine site (and the fact that they were, to an extent "tailor made" for that particular mine) and were subject to the rights of the owner of the mineral leases, would have a bearing on whether the situation in the particular trade in the particular area was such that the particular goods could freely be sold, or whether buyers and sellers were or were not procurable at once and within a reasonable distance in sufficient numbers to constitute the relationship of supply and demand and the consequent establishment of a market price. This is so notwithstanding that in modern times marketing of such goods may take place electronically.[113] Similarly, the prices for which FE and G&C actually sold the Camp, Plant and Equipment, do not establish that there was an "available market" in this sense.[114]
• [130] In her Honour's analysis set out above, the trial judge was applying the primary "ruling principle" applicable to the assessment of damages for breach of contract as explained in Clark v Macourt.[115]
• [131] Each of the judges in the High Court in Clark v Macourt emphasised that the proper approach to the assessment of damages for breach of contract is to place the injured party, so far as money can achieve the result, in the same position that party would have been in had the defaulting party complied with its contractual obligation (Hayne J at [7] & [10]; Crennan and Bell JJ at [26]-[27]; Gageler J at [59] - [68]; Keane J at [106] - [110]), and also that the measure of damages does not turn on the distinction between a sale of goods and sale of a business (Hayne J at [13]; Crennan and Bell JJ at [30]; Gageler J at [68]). Crennan and Bell JJ explain (at [28]) that the prima facie measure of damages at common law in respect of a sale of goods stated in Barrow v Arnaud,[116] and codified subsequently in sale of goods legislation is simply a reflection of this more basic principle; and Keane J (with whom Hayne, Crennan and Bell JJ agreed) quotes[117] the observations of Lord Atkinson on behalf of the Judicial Committee of the Privy Council in Wertheim v Chicoutimi Pulp Co[118] setting out this "ruling principle" and saying (inter alia) that "[T]he rule which prescribes as a measure of damages the difference in market prices at the respective times ... is merely designed to apply this principle". Gageler J (dissenting - but not relevantly to this point) urged caution in elevating subsidiary principles (such as the prima facie measure of damages for breach of a contract for the sale of goods) to the level of the basic "ruling principle" in the assessment of damages for breach of contract, saying:[119]

In answering that question, [ie which of the competing approaches to the assessment of damages adopted by the primary judge and by the Court of Appeal goes furthest in placing Dr Clark, so far as money can achieve the result, in the same position she would have been in had the company complied with its contractual obligation] statements of subsidiary principle framed in the context of working out the ruling principle in standard categories of case must be approached with circumspection. There is, as has often been pointed out, "a danger in elevating into general principles what are in truth mere applications to particular facts or situations of the overriding general principle". The measure appropriate in a particular case "cannot be divorced from the [claimant's] personal position and obligations, both legal and moral, or from what the [claimant] ought reasonably to do by way of mitigation", and a rigid distinction cannot always be drawn between measure and mitigation.

• [132] Grounds 1 to 4 of the cross-appeal must be dismissed.

Grounds 12 to 14 and 17 to 21 of the cross-appeal: alleged failure to find that G&C had not proved its loss

• [133] Gold Valley contends, in the alternative to Grounds 1 to 4 of the cross-appeal considered above, that the trial judge should have found that Gold Valley failed to prove the value of the items of Plant and Equipment not sold to Britmar.[120] The trial judge dealt with the valuation of the items of Plant and Equipment not sold to Britmar as follows:[121]

The Plant and Equipment not purchased by Britmar or RRT consisted of:

(a) the six fuel pods transported to Mataranka and then to Alice Springs, being one x 20 feet (or five metres long) and five x 40 feet (or 12 metres long);

(b) the 24 Removed Items recovered by the second plaintiff and transported to yards in Alice Springs ('Table 4 Items'); and

(c) the 28 Removed Items remaining at the locations to which they were taken by the defendant.

As regards the fuel pods and the Table 4 Items, Mr Oldfield deposed that the second plaintiff purchased those items of Plant and Equipment on 7 September 2016, then located on the mineral leases, for the amounts attributed to them in the Pickles Invoice. Those amounts totalled from $106,863.62 to $108,499.98, the difference being attributable to items with the same descriptor in the Pickles Invoice having different amounts. After deducting the cost of transporting those items from where the defendant had taken them to the yards in Alice Springs ($26,778.51), the Pickles Invoice prices totalled from $80,085.11 to $81,721.47 (exc GST). Mr Oldfield deposed that it was his expectation that, during the almost two years between the second plaintiff's purchase and the date of breach of the Contract of Sale, the second plaintiff had not performed any works on the fuel pods and the Table 4 Items which could have increased their value, and they would have deteriorated in condition as they were left exposed to the weather and they were not maintained in any way, with the consequence that their value would have declined below the prices in the Pickles Invoice.

As regards the fuel pods, counsel for the defendant argued that each fuel pod had a value of $25,000 because that was the amount credited to the RRT invoice for one of the 40 foot fuel pods it took in exchange for transportation costs. Consequently, it argued that the six fuel pods had a total value of $150,000.

As regards to the Table 4 Items, counsel for the defendant argued that each of the Table 4 Items had a value that was 370% of the amount set out in the Pickles Invoice because that was the average difference between the amounts charged in the Pickles Invoice and the amounts credited to the RRT invoice for the truck, the three modular buildings and the communications tower. Counsel for the defendant argued therefore that the Table 4 Items had a value of around $300,000.

In cross-examination, Mr Oldfield rejected the proposition that the amounts attributed in the RRT invoice to the 'modular buildings' of $10,000 was effectively five times the amounts attributed to 'shipping container buildings' in the Pickles Invoice ($1,818), saying that some of the buildings were in better condition and had a higher value than others, and RRT would have chosen the buildings that were in the best condition. When shown that the truck acquired by RRT for $17,000 was priced at $5,000 in the Pickles Invoice, Mr Oldfield said that he took what he was offered by RRT for it, and that price was for the item located in RRT's yard. As for the fuel pods, which were all priced at $8,636.36 in the Pickles Invoice, one of which was exchanged with RRT for $25,000, Mr Oldfield said again that RRT would have picked out the best of the seven tanks, only some of them had pumping units and some had dirty fuel in them. Mr Oldfield agreed that the amount attributed to the communications tower in RRT invoice was around $100 more than the price in the Pickles Invoice. Mr Oldfield agreed that the Table 4 Items (including the six fuel pods) had been in Alice Springs since February 2021, he had not done anything with them, had not sold or rented them, and it was his intention to do that once the litigation concludes.

In re-examination, Mr Oldfield said that his expectations about selling or renting the Table 4 Items was that some of them, such as the vehicles, would be 'just trashed', some of the equipment would have reached the end of its economic life and someone may buy it if they have a use for it, but the mine shut in 2014 and some of the equipment has not operated since then and has been sitting idle until the present time. Mr Oldfield said that leaving machinery in the elements all that time causes them to suffer break downs in the seals and contamination of the oils, hydraulics, filters and intakes, so that the chances of someone wanting to buy them can be remote unless they have a specific need and they are really desperate and want to use them for parts. He said that he did not have any great expectations for them. He said that he had had Pickles, Lloyds and Hassels auctioneers come and look at them and tell him these items have no commercial value. He said that there will be a range of where it sits, but some of them are basically a burden.

I accept Mr Oldfield's evidence as set out above regarding the condition of the Table 4 Items, their deterioration and their consequent diminution in value from the starting point of the prices set out in the Pickles Invoice. I accept that Mr Oldfield's evidence explains why the amounts credited to the RRT invoice cannot be taken to represent the value of the other Table 4 Items, given that the items varied in condition, RRT would have chosen the items in the best condition, and the amounts were a credit against transportation costs of items already at RRT's yard in Mataranka rather than amounts paid upon a sale in an open market. I accept that Mr Oldfield's evidence about the effects of weather and lack of maintenance since 2014 also explains why the eight vehicles, three items of machinery (including the drilling rig), 11 shipping container buildings, six fuel pods, a communications tower and eight wheelie bins and four spill kits in the Table 4 Items had very little value, specifically less than the $26,778.51 in transportation costs paid by the second plaintiff to retrieve them, by the date they were returned to the second plaintiff's physical possession in February 2021. I consider that to be the relevant date for the purpose of assessing whether a deduction should be made on their account from the second plaintiff's damages because the defendant had removed them from the mineral leases in breach of the Contract of Sale, had refused to tell the second plaintiff of their location and did not do so until after the plaintiffs commenced proceedings in the Supreme Court, and had not taken any steps thereafter to return the Removed Items to the second plaintiff's physical possession. I find, on the balance of probabilities, that the Table 4 Items (including the six fuel pods) were, at that date, of no material value after deducting the transportation costs.

Consequently, no deduction to the second plaintiff's damages is necessary or appropriate to reflect the second plaintiff's retention of ownership and possession of the Table 4 Items.

(Extensive footnoted references to the evidence omitted.)

• [134] Gold Valley contends that the trial judge should not have accepted Mr Oldfield's evidence saying that G&C paid WDR over $106,000 for the Table 4 Items on 7 September 2016 out of a total price of $495,000 and that, less than a year later, Gold Valley agreed to pay a total of $1.5 million for the same items which, Gold Valley argues, suggests that, applying the same apportionment to the purchase price paid by Gold Valley as the apportionment of the purchase price paid by G&C, a reasonable apportionment of Gold Valley's contract price would see around $300,000 apportioned to the Table 4 items. Gold Valley goes one step further and contends that an analysis of the prices obtained for the other items sold after 30 August 2018 (ie the sales to Britmar and the other company) shows that those prices were about 370% more than the price G&C paid to the liquidator of WDR. Gold Valley argues that these values should have been applied to the Table 4 items.
• [135] This argument ignores the fact that the Table 4 Items were items wrongfully removed by Gold Valley and later retrieved by G&C. Gold Valley contends that the only evidence led by G&C as to the condition of these items was from Mr Oldfield who testified that he expected their value would have declined. Gold Valley points to the fact that there was no evidence led from a valuer and that G&C did not tender photographs or other evidence of their condition. However, Mr Oldfield did give evidence of how it was that the value of the items had declined.

The question relates to the items that are in the yard and the suggestion that you'll try and either sell or rent them somehow deal with them after the litigation is over. What's your expectation of your ability to be able to do that?---Well, some items, Mr Harris, will be - they'll be just trashed. I mean I could hand her Honour - I've got photos of the vehicles which you won't need an expert to decide what they're worth. And some of the other equipment is - your Honour, probably the best way to describe some of this stuff is all equipment has an economic life and value. So when it's new, it starts off it's worth X and then the maintenance, you know, go down along this line and you say maintenance. And as a lifetime expands, the maintenance increases. So the maintenance curve goes up, the value economic life goes down. And when it hits a point, it's basically lost its value. It's got no economic value. And - or limited. Somebody may buy it if somebody's got a use for it. But we use the old adjective at work a bit of machinery, if you've got a use for it in a contract is worth something, but as a doorstop is very expensive. And when you've got the likes of some of this equipment that - remember it was - the mine shut 2014. Some of this hasn't operated and been sitting idle for the period up until now. Now, the components of machinery are made from seals, hydraulics, oils, whatever. And when they're placed in the element and they're not stored, there's the possibilities of contamination, condensation, it gets in the oils, rain gets in the filters or gets in the intakes and unless you pull them down for a big inspection, the chances of somebody wanting to come and buy them off you can be remote, unless they had a specific need and they're really desperate and want to use some for parts. But I haven't got any great expectations for them. But you can hope but I - I've had Pickles and guys come around and auctioneers. I've had Lloyds, I've had Hassles(?). And someone there saying having no commercial value. So there'll be a range of where it sits, but some of the items are just basically burden.[122]

• [136] Gold Valley contends that this passage from the evidence of Mr Oldfield demonstrates that G&C failed to prove its damages "with a degree of precision which reflects the proof that was reasonably available to G&C" and refers to the evidence of direct relevance to the value of these items which G&C did not call: photos, "the Pickles guys" etc. We disagree. Assessment of the evidence was primarily a matter for the trial judge and her Honour was entitled to accept the evidence of Mr Oldfield that the Table 4 items had essentially no commercial value (ie were worth less than the $26,588 G&C paid to transport them) for the reasons given by him in evidence.
• [137] Grounds 12 to 14 and 17 to 21 of the cross-appeal must also be dismissed.

• [138] Gold Valley contends that, if this Court accepts Gold Valley's argument that G&C is only entitled to nominal damages, then G&C's counterclaim for repayment of the $500,000 paid to G&C on account of the purchase price for the Plant Equipment must succeed. As we have not accepted this argument by Gold Valley, this issue does not arise.
• [139] ORDERS:

(a) Grounds 1 and 2 of the appeal are dismissed.

(b) Ground 3 of the appeal is allowed and $73,500 is added to G&C's damages.

(c) Ground 4 of the appeal is dismissed.

(d) Ground 5 of the appeal is dismissed.

(e) The $37,180 for the legal costs of the Federal Court proceedings with Britmar mistakenly deducted from G&C's damages should be reversed and added to those damages (ie adding a further $74,360).

(a) Grounds 1 to 4 of the cross-appeal are dismissed.

(b) Grounds 12 to 14 and 17 to 21 of the cross-appeal are dismissed.

[1] FE Accommodation Pty Ltd & Anor v Gold Valley Iron Ore Pty Ltd [2020] NTSC 61; ("the liability decision") at [154.14].

[2] FE Accommodation Pty Ltd & Anor v Gold Valley Iron Ore Pty Ltd [2024] NTSC 61("the damages decision") at [180]

[3] [1989] HCA 8; (1989) 171 CLR 125 ("Hungerfords")

[5] the damages decision at [73] to [77]

[6] the damages decision at [84] and [85]

[7] Citing Commonwealth of Australia v Amann Aviation [1991] HCA 54; (1991) 174 CLR 64 at 136, 148 and Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 ("Haines v Bendall") at [1]

[10] the damages decision at [80]

[11] [1998] HCA 20; (1998) 192 CLR 285 at [26] per Gaudron J ("Commonwealth v SCI")

[12] [2023] VSCA 134 ("Ikosidekas v Glenis")

[13] Commonwealth v SCI per Gaudron J at [22]

[16] The appeal was decided in Ikosidekas' favour on other grounds.

[17] Ikosidekas v Glenis at [37]-[39]

[18] A more apt authority is the English case of IM Properties Plc v Cape & Dalgleish [1998] EWCA Civ 862; [1999] QB 297, cited by the trial judge at [82]-[84].

[19] the damages decision at [85]-[96]

[20] See Ajaimi v Giswick Pty Ltd (No 3) (2022) 67 VR 529 at [28] per M Osborne J.

[21] See Northern Territory v Griffiths (2019) 269 CLR 1 at [355] per Edelman J, citing Hungerfords v Walker; Commonwealth v Chessell (1991) 30 FCR 154 at 161-162 per Sheppard J and 163 per Wilcox J, citing Hungerfords v Walker; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 364 per Giles J.

[22] Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 364 per Giles J. See also Commonwealth v Chessell (1991) 30 FCR 154 at 161-162 per Sheppard J and 163 per Wilcox J. See also Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd (1991) 58 SASR 184; Walker v FAI Insurance Ltd (1991) Tas R 258; State Bank of New South Wales v Yee (1994) 33 NSWLR 618; Commonwealth v Chessell (1991) 30 FCR 154.

[23] See Oral submissions at Transcript, p 179; Plaintiffs' Further Outline of Submissions dated 16 April 2024 at [23]-[25].

[24] See Plaintiffs' Further Outline of Submissions dated 16 April 2024 at [33]-[35].

[25] Transcript, pp 75-77; Exhibit P3, Appendix 11

[26] Exhibit P3, [2.1]-[2.14], [5.7]-[5.8], [6.6]-[6.7]. The payment times under the Contract of Sale was varied by the parties by a deed of variation executed on 28 September 2017 (Ex D1).

[30] Exhibit P5, [2.19]-[2.21]; [2.25]-[2.26]

[31] Exhibit P5, [2.22]-[2.23]; [2.27]-[2.28]

[38] These amounts do not take into account GST.

[39] the damages decision at [142]

[40] the damages decision at [145]

[41] [1981] HCA 45; (1981) 147 CLR 589 at 602-604 ("Anshun")

[42] [2015] HCA 28; (2015) 256 CLR 507 at [22]

[43] [2016] FCA 44; (2016) 259 CLR 212 at [27]

[44] the liability decision at [12]

[45] the liability decision at [166]

[46] the liability decision at [181]

[47] Gold Valley Iron Ore Pty Ltd v FE Accommodation Pty Ltd & Anor [2021] NTCA 2 ("the liability appeal decision")

[48] the damages decision at [163]-[174]

[49] See the damages decision at [156]-[158]

[50] the damages decision at [160]-[162]

[51] Appellants' further reply submissions dated 18 February 2025 at [22]

[52] [1993] HCA 4; (1993) 176 CLR 344 at 355 ("Baltic Shipping")

[53] [1987] HCA 5; (1987) 162 CLR 221 at 256-257

[54] [2012] 246 CLR 498; HCA 7 at [30] (French CJ, Crennan and Kiefel JJ) citing David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353; cited in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at [6] (French CJ), at [138] (Gageler J). See also Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [213] (Nettle, Gordon and Edelmann JJ).

[55] [2023] SASCA 30 at [194] (Livesey P, Doyle and Bleby JJA)

1. [56] [2009] NSWCA 186; (2009) 75 NSWLR 42 ("Ford") at [119]-[126]

[57] [2015] NSWCA 123; (2015) 97 NSWLR 207 at [86]-[87]

[58] Gold Valley's written submissions dated 13 December 2024 at [55]-[57]

[60] This is plainly a reference to Dies v British and International Mining & Finance Corp Ltd [1939] 1 KB 724 referred to by the trial judge at [170] of her Honour's reasons.

1. [61] [1933] HCA 25; (1933) 48 CLR 457

[62] [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289; (1993) 67 ALJR 228 per Mason CJ at [13]

1. [63] the liability appeal decision at [19]-[22]

[69] Defined by cl 1.0(k) to mean the date on which the parties executed the Contract.

[70] Defined by cl 1.0(g) to mean two years after the Execution Date.

[71] Defined by cl 1.0(f) to mean the date falling on the commencement of the fifth year after the Execution Date.

[74] [1988] HCA 12; (1988) 180 CLR 491. (See judgment of Mason CJ, Wilson, Dawson and Brennan JJ at 497.)

[76] Appellant's written submissions filed 15 November 2024 at [157]

[77] Appellant's written submissions filed 15 November 2024 at [168]

[78] the damages decision at [113]-[119]

[79] the liability decision at [33]

[80] the liability decision at [34]

[81] the liability decision at [35]

[82] the liability decision at [58]

[83] the liability decision at [65]

[84] the liability decision at [71]

[85] the liability decision at [80]

[86] the liability decision at [76]

[87] the liability decision at [78]

[88] the liability decision at [81]

[89] the liability decision at [82]

[90] the liability decision at [85], [91] and [96]

[91] the liability decision at [154]

[92] the damages decision at [121]-[122]

[93] JW Carter, W Courtney and GJ Tolhurst, 'Issues of Principle in Assessing Contract Damages' (2014) 31 Journal of Contract Law, 171 at 185.

[98] JW Carter, Carter's Breach of Contract, 2nd ed, 2018, LexisNexis Butterworths, [13-04], p 596.

[99] Ibid, pp 596-697. See also JW Carter, W Courtney and GJ Tolhurst, 'Issues of Principle in Assessing Contract Damages' (2014) 31 Journal of Contract Law, 171 at 197: 'It goes without saying that prima facie measures may be displaced by the facts'. It is expressly acknowledged in Clark v Macourt that the prima facie measure can be displaced: see at [28], [30] per Crennan and Bell JJ, at [107], [132] per Keane J. See also at [68] per Gageler J.

[100] JW Carter, W Courtney and GJ Tolhurst, 'Issues of Principle in Assessing Contract Damages' (2014) 31 Journal of Contract Law, 171 at 199.

[101] [2013] HCA 56; (2013) 253 CLR 1 ("Clark v Macourt"); See the damages decision at [121].

[102] the damages decision at [122] to [129]

[103] See, for example, Joseph & Co Pty Ltd v Harvest Grain Co Pty Ltd (1996) 39 NSWLR 722 at 726-727 per Moore DCJ, citing Thompson (WL) Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177 at 187 per Upjohn J.

[104] (1996) 39 NSWLR 722

[105] Benjamin's Sale of Goods 16-066 p1014; Marshall & Co v Nicoll & Son [1919], SC 244 at p 245 (affirmed 1919 SC (HL) at p 129; Thompson (WL) Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177 at p 187

[106] Benjamin's Sale of Goods 16-066 p 1015; ABD (Metals and Waste) Ltd v Anglo-Chemical Ore Co Ltd [1985] 2 Lloyds Rep 456 at p466 (followed in Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd (No 2) [1990] 3 All ER 723 at p 730

[107] Benjamin's Sale of Goods 16-066 p 1015; The concept of a geographical extent of an "available market" may nowadays have to be modified by the existence of online markets, but the cost of transport from a remote location will still be a relevant consideration.

[108] Benjamin's Sale of Goods 16-066 p 1015; Examples given range from several days to about two weeks.

1. [109] Professor Michael Bridge, Benjamin's Sale of Goods (8th Edition) 16-069 p1016; Kwai Tek Chao v British Traders and Shoppers Ltd [1954] 2 QB 459 at p 498

[110] Professor Michael Bridge, Benjamin's Sale of Goods (8th Edition) 16-0667; Ebinger Actien Gesellschaft v Armstrong (1874) 9 QB 473 at pp 476-477; This may apply by analogy to the Camp which was specially designed for the mine on which it was located.

[111] See, for example, Joseph & Co Pty Ltd v Harvest Grain Co Pty Ltd (1996) 39 NSWLR 722 at 726-727 per Moore DCJ, citing Thompson (WL) Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177 at 187 per Upjohn J.

[112] Gold Valley's written submissions dated 13 December 2024 at [70]

[113] Gold Valley's written submissions at [70] and 72]

[114] Gold Valley's written submissions at [70.3]

[115] [2013] HCA 56; See the damages decision at [121].

[116] [1846] EngR 10; (1846) 8 QB 595 at 609-610 [1846] EngR 10; (115 ER 1000 at 1006)

[117] Clark v Macourt at [130]

[118] [1910] UKPC 1; [1911] AC 301 at 307-308

[120] These were the only other grounds of the cross appeal pressed.

[121] the damages decision at [136]-[143]

[122] Transcript Brownhill J 10 April 2024 at p 71-72