(ii) Costs of Performing the Variation Agreement
1047 The central issue raised by this claim is encapsulated in the statement of principle made by Megarry V-C in Tito v Waddell (No 2) [1997] Ch 106 at 332:
"if the plaintiff can establish that his loss consists of or includes the cost of doing work which in breach of contract the defendant has failed to do, then he can recover as damages a sum equivalent to that cost. It is for the plaintiff to establish this: the essential question is what his loss is." Emphasis added.
It is no answer to such a claim that, as in the present case, the plaintiff is in turn contractually obliged to do the work the defendant has failed to do. Such is the commonplace, in a claim by a lessee against a sub-lessee for breach of the covenant to repair: see eg Conquest v Ebbetts [1896] AC 490; McGregor on Damages, para 1077ff (16th ed); and, as illustrated in case law in United States jurisdictions, in claims by a head contractor against a sub-contractor on account of the latter's failure to perform, or adequately to perform, the contracted for work: S & D Mechanical Contractors Inc v Enting Water Conditioning Systems Inc 593NE 2d 354 (1991): US v Curtis T Bedwell & Sons Inc 506 F Supp 1324 (1981); see also "Comment Note: Overhead Expense as Recoverable Element of Damages" 3 ALR 3d 689 at [8] (US). However, that the plaintiff may be remunerated in turn for doing that work does bear directly on the question of "what his loss is".
1048 The way BHP-IT put its case originally in submissions was, in effect, as a claim for damages for a form of "lost opportunity to bargain" (cf Sharpe and Waddams, "Damages for Lost Opportunity to Bargain" (1982) 2 OxJLS 290) a realistic commercial price with the Commonwealth for the actual performance it had to render after GEC Marconi's repudiation. As later developed, the claim was put as one for compensation for the actual cost to BHP-IT of being forced by GEC Marconi's repudiation to utilise its own labour and other resources for a long period and with no return, in performing the work GEC Marconi had contracted with it to perform. In its ordinary course of dealings BHP-IT would have expected a return for having to render its services. That lost return in this case - the "opportunity cost" - was a loss suffered by BHP-IT.
1049 While the latter approach avoids the risk of the claim being seen as simply a claim for loss of an opportunity to make a profit of the type exemplified by Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 - a risk GEC Marconi has sought to exploit - the two approaches outlined above are in substance indistinguishable. They both focus on the loss of a reasonable commercial return for the services rendered as an actual cost to BHP-IT.
1050 Put shortly the actual claim is that in having to perform the amended Head Contract at a predetermined price, BHP-IT was unlikely to obtain any return by way of profits or contribution to overheads for the work done. If it had been done in the ordinary course of BHP-IT's commercial dealings (on its usual costs plus basis) it would have been done at a price that incorporated profit and a contribution in the order of $6,798,767. It is this sum, or else a proportion of it (to reflect the suspension decision with 55% of the work completed), that BHP-IT claims as its loss.
1051 While BHP-IT relies upon orthodox principles governing contractual damages to support the loss claimed, it does seek support for the "loss of return" component of the claim from somewhat analogous situations in which such damages are awarded. The first of these relates to cases, illustrated by Hungerfords v Walker (1990) 171 CLR 125, in which damages have been awarded for loss of use of money. The second is where a party has been allowed the reasonable cost of repairs effected by it personally to remedy damage to its own property that was sustained by another's tortious act: Price v Commissioner of Highways [1968] SASR 329 at 332-333; Commonwealth Railways Commissioner v Hodson (1970) 16 FLR 437; Trindade and Cane, The Law of Torts in Australia, 553 (3rd ed). The third and more distant analogy relied upon, again from tortious damages, is that where a person loses the use of a profit-earning asset through the wrong of another. In such a case the aggrieved party is entitled to recover as damages flowing naturally from the wrong, either loss of profits during the period in which the asset is unavailable where there was otherwise a reasonable certainty of their having been earned or else general damages for the loss of such profits which it must reasonably have been anticipated would have ensued during that period: The Argentino (1888) 13 PD 191; affd (1889) 14 App Cas 519; The Hebridean Coast [1961] AC 545 at 562-565; McGregor on Damages, para 1336ff (16th ed); and see also Oldcastle v Guinea Airways Ltd [1956] SASR 325. Finally, BHP-IT it is said, was obliged because of GEC Marconi's wrong to commit substantial resources of its own to performing the Head Contract and thus had to forgo the deployment of those resources on other profitable contracts. It should in consequence be compensated for the loss of such profits. For the purposes of showing there were profit-making opportunities available, it relies upon the evidence of Mr Dart relating to BHP-IT's growth in the period from the end of 1997 to 1999 and to the demand for software development skills in the market place.
1052 In my view there can be no doubt that GEC Marconi's repudiation cast on BHP-IT a burden that was unanticipated and unbargained for by BHP-IT. GEC Marconi was to perform the actual work in question for BHP-IT. It failed to do so. It then had to be done by BHP-IT deploying its own resources for the purpose. As GEC Marconi well understood, BHP-IT contracted with the Commonwealth on one basis (ie the actual work would be performed by a sub-contractor). It was being required to perform on another. Subject to its bringing into account payments received from the Commonwealth for its performance of the amended Head Contract, BHP-IT is entitled to claim as damages its costs in doing the work GEC Marconi failed to do: Tito v Waddell (No 2), at 332. The real issue is whether the costs actually incurred by BHP-IT can properly be said to include a component representing the loss of return (or sacrifice of profit) for doing the work.
1053 The principal way in which BHP-IT now puts its case is premised upon the proposition that a commercial enterprise will not in the ordinary course agree to supply goods or to render services for no return, although on occasion it may be forced to do so. In support of this it draws on the observations of Mason CJ and Dawson J in Amann Aviation Pty Ltd, at 81 that:
"In the ordinary course of commercial dealings, a party supplying goods or rendering services will enter into a contract with a view to securing a profit, that is to say, that party will expect a certain margin of gain to be achieved in addition to the recouping of any expenses reasonably incurred by it in the discharge of its contractual obligations."
1054 Having so identified the expectation of a business enterprise, BHP-IT then contends that the sacrifice of profit unavoidably entailed in an activity carried on by a business is a cost associated with the conduct of that business. That is a real and identifiable cost that is measured by the difference between the price charged by the supplier in the particular case and the price necessary to compensate the supplier for the profit it is forced to sacrifice because of the supply: Telecom Corporation of New Zealand v Clear Communications Ltd (1995) 32 IPR 573 at 593-594. In this BHP-IT seeks to pray in aid the economists' conception of "opportunity cost": cf Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179 CLR 101 at 123. BHP-IT thus contends that GEC Marconi's repudiation obliged it to complete the Head Contract itself and in so doing to tie up its own personnel and resources for a lengthy period and for no return. To so use its personnel and resources involved the relevant sacrifice of profit. It is entitled to be compensated for that sacrifice.
1055 BHP-IT enlarged upon this "opportunity cost" claim in supplementary submissions responding to questions I had asked. It noted that the concept of opportunity cost is well recognised in Australasian Law: see Hungerfords v Walker (1990) 171 CLR 125 at 143-4, I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2 October 2002) at para 123; Dart Industries Inc v The Décor Corporation Pty Ltd (1994) 179 CLR 101 at 114 and 123-5; Apand Pty Ltd v Kettle Chip Company Pty Ltd (1999) 162 ALR 505 at 520.
1056 The concept has been applied to the expenditure of funds and to an investment in capital assets. BHP-IT contends there is no reason why it ought not to be applied to the forced deployment of skilled staff to complete a software development project that was the subject of a repudiated obligation owed by a sub-contractor, in circumstances where the expenditure of funds will not otherwise derive any commercial return. There is no logical difference between monies invested in plant and equipment, such as a ship or crane, and monies invested in retaining and deploying skilled software developers.
1057 Despite its allure I am unable to accept the contention as put. I am satisfied that, subject to its bringing to account its receipts from the Commonwealth, BHP-IT is entitled to claim its actual costs in performing the amended Head Contract. Those costs include its direct costs, expenses and charges and, importantly, loss of overheads. It does not include that component of loss of return attributable to loss of profits. The reason for that exclusion is that no presumption, special or default rule entitles BHP-IT to claim such a loss in circumstances such as the present without proof of it. I am not satisfied that BHP-IT has proved it suffered such a loss: cf Sunley (B) & Co Ltd v Cunard White Star Ltd [1940] 1 KB 740 at 747; S & D Mechanical Contractors Inc v Enting Water Conditioning Systems Inc, at 362ff; see also Ellis-Don Ltd v The Parking Authority of Toronto (1978) 28 BLR 98 at 124ff; Keating on Building Contracts, 8-67, 8-68 (7th ed).
1058 I equally am not satisfied that the law has yet developed to the point at which it is open to BHP-IT to make such a generalised claim for "opportunity cost" as it does. No single idea (other than compensating actual losses), let alone a single rule, encompasses the range of circumstances in which, and the bases on which, damages can properly be awarded for what, for convenience I will call, "loss of use of resources or diversion of resources" consequent upon a tort or a breach of contract. To illustrate this obvious point I refer to two common examples.
1059 The first is where a person (a) has used his or her own time (which would not otherwise have been used for profit making purposes) to remedy damage or loss caused by another's tort or breach of contract; or (b) has lost the use of a non-profit earning or a loss-making chattel that has been damaged by another's tort or breach of contract - and then claims damages for that lost time so expended: cf Price v Commissioner of Highways [1968] SASR 399, or for that loss of use: cf The Mediana [1900] AC 113: Nauru Local Government Council v New Zealand Seamen's Industrial Union of Workers, above, at 477 (ll 6-16). Though no loss of return in the nature of a profit could be claimed in such cases, in each instance a compensable loss has been sustained. And in both cases default rules have been employed, as appropriate in the circumstances, to provide recompense for what is recognised to be an actual loss, the monetary expression of which is often difficult to calculate - hence the resort to measures based on rates of hire, labour rates, interest on capital etc: for the variations in relation to loss of use of chattels see generally McGregor on Damages, para 1349(a)ff (16th ed); Waddams, The Law of Damages, 1.2030ff (3rd ed).
1060 The second illustrative case is that in which a loss of profits can so reasonably be anticipated to have ensued from a tort or breach of contract that resort properly be had to some standardised formula to assess that anticipated loss given what was reasonably to be expected in the circumstances in the particular sphere of economic activity in which the alleged loss has been sustained: in the case of shipping, see eg The Argentino (1889) 14 App Cas 524-524 and the explanation of "demurrage" in this context in McGregor on Damages, paras 1336-1337 (16th ed). I would note in passing that the evidence in this case does not throw light upon the nature of the workings of this particular industry or upon the losses that might reasonably be anticipated to have ensued from a breach of contract such as in this case.
1061 What is common to both illustrations is proof that an actual loss has been sustained. They differ significantly in the manner in which, and the bases on which, that loss is translated into a damages award.
1062 BHP-IT cannot be awarded damages to compensate it "for some kind of harm which [it] cannot prove that [it] ever sustained": The Hebridean Coast [1961] AC 545 at 578. The monetary expression of an actual loss or harm suffered may be difficult to estimate where precise evidence is not available: Amann Aviation Pty Ltd, at 83. But the fact of the loss itself is not to be presumed. As was said by the English Court of Appeal in Sunley (B) & Co v Cunard White Star Ltd, at 747, of a claim (inter alia) for loss of profits said to have been occasioned by a breach of contract resulting in delayed delivery of a machine used for income producing purposes:
"In [the] circumstances, the plaintiffs really failed to prove any facts on which their damages could be estimated. In the absence of evidence they relied on the law. And the learned judge unfortunately succumbed to the invitation to discuss a variety of cases like The Mediana (I) at great length. Those cases establish that when a plaintiff is deprived of the use of a chattel which he does not use for making profit he is not to be debarred from claiming as damages what during that time its use would have been worth to him, had he not been prevented from using it. But those cases are no authority for the proposition that, if the owner of a profit-earning chattel does not prove the loss he has sustained, the judge may make a guess in the dark and award him some arbitrary sum."
1063 I would note in passing that in the United States where a loss of profits is claimed in consequence of a tort or of a breach of contract, a similar requirement of proof of the loss is imposed: see generally 22 Am Jur 2d "Damages", s624ff. This has been notably so where, as in the present case, the loss claimed was of profits foregone because a head contractor was forced to use its own employees and plant when doing, or supervising the doing of, work which in breach of contract a sub-contractor had failed to do: see eg US v Curtis T Bedwell & Sons Inc 506F Supp 1324 (1981); S & D Mechanical Contractors Inc v Enting Water Conditioning Systems Inc, above. I would, though, acknowledge that the usual requirement in United States jurisdictions that a loss of profits be proved with "reasonable certainty": cf Farnsworth, Contracts, s12.15 (3rd ed); may well impose a more exacting proof than is the case in this country: cf Amann Aviation Pty Ltd, at 83-84.
1064 BHP-IT has not sought in its claim to differentiate for any operative purpose between its alleged loss of overheads and its loss of profit. The claim advanced has been a global one embodying both of these elements. As a matter of principle in a case such as the present, where there is no issue of remoteness: cf Parta Industries Ltd v Canadian Pacific Ltd (1974) 48 DLR (3d) 463; there is probably "no logical distinction to be drawn between a claim for lost profit and a claim for lost overhead:; Ellis-Don Ltd, above, at 127; although, importantly, the loss of each does require separate proof: cf S & D Mechanical Contractors Inc, above, at 362ff.
1065 Considering first the claim for lost profits, for BHP-IT to succeed in its claim it was necessary for it to demonstrate that, but for its having to deploy its labour and resources as it did there was a reasonable likelihood that the profit it claims was thus foregone would have been available to it. The Commonwealth could not have been the source of that profit. The price of the Head Contract had long since been fixed. BHP-IT has not pointed to any particular profit making activity in which there was a "reasonable certainty" of it otherwise deploying its labour and resources: The Hebridean Coast [1961] AC 545 at 562; but which was forsaken because it was required to divert its own resources to correct the problem created by GEC Marconi: S & D Mechanical Contractors Inc, at 363; and which resulted in a "loss of profits which could reasonably be expected to have been derived": Nauru Local Government Council, above, at 477.
1066 Apart from several observations of a most generalised character in the evidence of Mr Dart and Mr Hammond to the effect (a) that the rate of growth of BHP-IT in an eighteen month period between 1997 and 1999 was 40 per cent outside the domain of BHP (ie the parent company) whatever that might have signified; (b) that the period was one of "reasonable buoyancy" for BHP-IT; (c) that there was a strong growth in the IT industry across all sectors; and (d) that there was a substantial demand for software engineers, there was little in the evidence to illuminate in any satisfactory way how profits such as claimed by BHP-IT could reasonably have been earned by it in the then IT market - a market, moreover, the workings and profitability of which has not been the subject of evidence. I do not regard the observations to which I have referred above as assisting in any way in laying the foundation for proof of the loss claimed.
1067 BHP-IT's loss of profits case has not really been advanced (save as a faint alternative) on the basis that its actual loss had to be proved by demonstrating that, in consequence of its diversion of labour and resources, other actual opportunities were foregone. This explains the state of the evidence on this matter. The case, as finally put, was that the loss inhered in having to do GEC Marconi's work without return or contribution. As I have indicated, an alleged loss of profits cannot be assumed. I am not satisfied that it has been proved that this was a loss sustained by BHP-IT.
1068 Turning to the loss of contribution to overheads, I note again that BHP-IT has not sought operatively to distinguish this form of loss from its loss of profits. This said, and subject to any question of recoupment from moneys paid by the Commonwealth, BHP-IT's overhead expenses to the extent that they were reasonable and were properly allocated to its performance of the Head Contract were recoverable by way of damages as an actual cost incurred by BHP-IT: see eg Commonwealth Railways Commissioner v Hodson (1970) 16 FLR 437; see also 22 Am Jur 2d, "Damages", s607; "Comment Note: Overhead Expense as Recoverable Element of Damages", above; Homes By Calkens Inc v Fisher 634 NE 2d 1039 at 1045-1046 (1993).
1069 I accept the evidence (reflected in the 1997 Proposal Approval Form ("PAF") estimate for the labour costs of performing the amended Head Contract), that the expenses incurred by BHP-IT in performing that contract included overhead expenses for which no allowance was able to be made because of the predetermined contract price. I would note in passing that it is Mr Hammond's evidence that BHP-IT's internal margin for recovery of divisional and corporate overheads for the 1997-1998 financial year was 29.2%. The margin to generate profit was 13.6%.
1070 Specific submissions were not made initially by any of the parties (a) on whether or not the separate claim for contribution for overheads could properly be made in its own right and (b) on whether or not the claim made is justifiable in its own terms. And it has not been separately quantified. Again in response to questions asked of the parties, BHP-IT later accepted the propositions (i) that, on the evidence, BHP-IT has been shown to have separate divisional overhead rates for each of its three divisions and a common corporate overhead rate, the former being subject to periodic review and (ii) that this evidence should be regarded as reasonable evidence of what its actual overhead costs were in its contracting activities. BHP-IT then contended that its own rates provided sensible and appropriate basis for proving its overhead costs in any event.
1071 I would have to say that the claim for overheads brings into sharp focus the difficulties with the evidence advanced by BHP-IT in support of its damages claim generally.
1072 The 1999 rework of the 1997 PAF (that was prepared internally by BHP-IT under the shadow of this litigation) purported to give prices that reflected labour costs, risk allowances, and BHP-IT's internal margin for divisional and corporate overheads and for profit. The margin was not disaggregated. For most items to which it was applied it was in the order of 32.9% (approx) and produced an overall contribution of $4,289,084 in a total estimated price of $14, 475,943.
1073 I have held BHP-IT has not proved its loss of profit and, accordingly, the total estimate must be abated to reflect this. Furthermore, the amended Head Contract that BHP-IT proceeded to perform contained work that GEC Marconi never undertook to perform (eg the ER3 software for the message switch). It cannot be required to compensate BHP-IT for losses (if any) on the performance of such work. The cost of that work also has not been disaggregated in the claim made. There is, though, no evidence to suggest it was loss making.
1074 I agree with GEC Marconi's submission that the 1997 reworked PAF is a document to be treated with considerable circumspection. But in the circumstances it does not avail BHP-IT in any event in its claim for actual costs, whether by way of overheads or otherwise.
1075 I have already found that the ADCNET project had, for practical purposes, been abandoned after the September 2000 Suspension Agreement. At that time on BHP-IT's own case, it has incurred performance costs of $5,136,122 but retained payments from the Commonwealth of $6,609,966. Those figures are based on a financial status report prepared by Mr Rentz which is in evidence. They resulted in a net benefit to BHP-IT of $1,469,844. I would note in passing that the figures contain performance costs that were referable to, and payments on account of, CR007 (the Expedited Release 3 ("ER3") amendment). ER3 represented different work agreed to by BHP-IT after the termination of the Sub-Contract. The CR007 amendment was designed to secure to BHP-IT an actual contribution (overheads and profit) of $276,601 on a contract price of $853,891. As I indicate below, it is probably the case that the sum of $1,469,844 contains all or some part of that contribution which BHP-IT would be entitled to retain without bringing it into account for the purposes of this claim.
1076 It is Mr Rentz's evidence that, because the amended Head Contract had to be performed at the original contract price no provision could be made for contribution given his cost estimates to perform at that price. It is likewise his evidence that his September 2000 figure for the actual costs of performance to date was based on records of project costs for labour and materials. In consequence that cost figure did not include any contribution for corporate and divisional overheads.
1077 Mr Hammond's evidence is that not all of the categories of cost referred to both in Mr Rentz's financial status report and in the 1997 reworked PAF would have had a margin for contribution applied to them. Applying Mr Hammond's exclusions to costs listed in the financial status report would lead to the result that actual costs in the order of $700,000 would not have been expected to make any contribution to overheads.
1078 The principal evidence on contribution to overheads was given by Mr Hammond. He accepted that the 49 per cent margin that was at the relevant time applied to base contract prices was applied prospectively as a matter of budgeting by BHP-IT. What he had done in his calculations for the purposes of BHP-IT's loss claims was simply to apply that figure retrospectively to actual costs incurred. He further accepted that in applying a percentage figure to estimated work there might, depending upon the way expenses or receipts varied, be either an under recovery or an over recovery of overheads. He gave the following evidence that related to the period which included that of the Variation Agreement:
"Q. Have you gone back to any financial period after December 1996 to determine for yourself what actually happened in relation to the recoupment of corporate and divisional overheads?
A. No, I haven't.
Q. And you can't, therefore, tell his Honour, do I understand, that contributions from projects other than the ADCNET project did or did not fully recoup to BHP-IT its overhead and divisional expenses?
A. No, I cannot.
Q. You have just relied, have you, on the fact that there was an estimate which was produced [ie in 1997] and if events turned out as the estimate projected, there would have been an insufficient recovery?
A. That's correct."
1079 The actual rates applied to overheads in BHP-IT at the relevant period were 29.2 per cent (being 22 per cent for corporate overheads and 7.2 per cent for divisional overheads). These figures were apparently the products, first, of a review of the company's internal margin conducted in the months prior to December 1997 and, then, of a revision in the 1997-1998 financial year which effected an almost 5 per cent reduction in the percentage for divisional overheads.
1080 As is apparent from the cross-examination of Mr Hammond, BHP-IT has not sought to adduce evidence of its actual overhead costs in the period December 1997-September 2000 that were attributable to performance of the amended Head Contract and which were as such an actual cost incurred in that performance. For my own part, I do not consider a failure to do so as being fatal to BHP-IT's claim.
1081 Notwithstanding that, from year to year, there may in fact have been variously an over-recovery or an under-recovery of the overhead costs for the company as a whole from its various projects, the methodology BHP-IT applied to secure its overheads, the allocation made across projects and the reviews of these made its overhead margins a reasonable and proper basis for estimating the likely overhead costs attributable to work performed by it on a particular project: McCarty Corp v Industrial Scaffolding Inc 413 So 2d 1322 at 1324 (1981). For this reason, though it represents a form of generalised estimation of cost: cf the description of the loss in the Nauru Local Government Council case, above, at 473 (point viii); I am prepared to accept it as an appropriate substitute for the necessarily burdensome and in any event quite inexact proof BHP-IT would otherwise have had to bear of establishing its actual loss on account of overhead contribution foregone on this one of its projects in circumstances such as the present: see generally "Comment Note: Overhead Expense as Recoverable Element of Damages" 3 ALR 3d 689 (US). It is clear on the evidence that it rendered performance for that period on the basis of a costing that made no contribution to overheads and its actual cost figure as at September 2000 likewise took no account of overhead costs. It was appropriate for BHP-IT in the circumstances to rely upon the margin rates it had set for the recoupment of overheads as providing a reasonable basis on which to estimate the likely cost. There was a reasonable certainty that such costs were incurred and I am satisfied in light of BHP-IT's own review and revision of its margin percentages that the overheads margin represented the best reasonably available basis for calculating what those overheads were likely to have been.
1082 Bearing in mind, though, that not all estimated or actual costs were expected to or did produce a return by way of contribution to overheads, the figure for actual costs incurred to September 2002 does not itself provide a reliable base figure to which to apply the overheads percentage. I would reduce that sum by a figure of $700,000 representing costs which, in light of Mr Hammond's evidence, were not expected to be return producing. Applying the 29.2 per cent figure to the actual cost figure so reduced produces a figure for overhead costs of roughly $1,300,000. I do not consider this to be an unlikely sum in the circumstances and find, in consequence, that there was a reasonable likelihood of a loss in that amount having been suffered by BHP-IT.
1083 BHP-IT has, though, received payments from the Commonwealth amounts producing a net benefit to it of $1,469,844. It has, in consequence, been fully recouped for such overhead expenses as I consider it was likely to have incurred and it still retains a net balance of about $170,000. I am not satisfied, though, that that net balance should be brought into account by BHP-IT as profit made on performance of the Head Contract.
1084 Once ER7 was agreed in September 1998 the entire BHP-IT team was, on Mr Rentz's evidence, then devoted to work on ER3 tasks which continued until mid-1999. In February 1999 BHP-IT received a milestone payment of $1,500,000 (for Milestone 3000A). It received a further milestone payment in September 1999 of $2,009,769 (Milestone 3000B) of which $509,769 was attributable to ER3. The projected profit component of the contribution charged in the ER3 contract was over $100,000. With earned value by September 2000 being significantly ahead of actual cost, I am prepared to infer that a sum somewhere near the $170,000 net balance figure I referred to above was likely to represent return by way of profit on the ER3 component of the Head Contract.
1085 In the event then I conclude that BHP-IT recouped from the Commonwealth under the amended Head Contract all of the costs it would otherwise have been able to claim against GEC Marconi. I also conclude that it made no actual profit up to September 2000 in its performance of that contract for which it would have to account in relation to its claim for profits lost when it lost the benefit of the Head Contract.
1086 By a somewhat more circuitous route than that relied upon by GEC Marconi and the Commonwealth, I have arrived at the same conclusion for which they each contended. BHP-IT has not proved it suffered any compensable loss in performing the amended Head Contract.