If proof of the value of a lost commercial opportunity has been made difficult or impossible by the conduct of the defendant, the court may apply the presumption in
Armory v Delamirie,23 and resolve any uncertainty against the defendant.24 In
20 Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA
90 (24 April 2013) [122]–[126], [138] –[139], [147], [156] –[158], [160], [173], [176], [182] –[183], [188], [193].
21 Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA
90 (24 April 2013) [227].
22 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.
23 Armory v Delamirie (1722) 1 Strange 505; 93 ER 664. See generally, Murphy v Overton
Investments Pty Ltd (2004) 216 CLR 388, 416 [74] (Full Court); LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1990) 24 NSWLR 499, 508 (Hodgson J); Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46, 59D (Handley JA; Mason P and Beazley JA agreeing); Chen v Karandonis
[2002] NSWCA 412 (18 December 2002), [59]–[63] (Beazley JA; Heydon and Hodgson JJA agreeing); McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 (8 November 2011), [148]– [160] (Giles JA; Macfarlan JA agreeing), [198]–[219] (Young JA).
24Radosavljevic v Radin [2003] NSWCA 217 (13 August 2003), [54] (Mason P; Handley and McColl
JJA agreeing); Mount v Barker Austin (a firm) [1998] PNLR 493; Sharif v Garrett & Co (a firm) [2002] 1 WLR 3118; Browning v Brachers [2005] EWCA Civ 753 (20 June 2005). See also State of
New South Wales v Burton [2008] NSWCA 319 (27 November 2008), [107]–[110] (Basten JA; Allsop
P and Handley AJA agreeing) (presumption applied in valuing loss of a chance of a better medical outcome).
Browning v Brachers,25 Jonathan Parker LJ (with whom Mance LJ and the Vice Chancellor agreed) described this presumption as ‘a general principle to the effect that, in a case where the defendant has wrongfully deprived the claimant of property of value (be it an item of physical property or a chose in action), the court will, save to the extent that it is persuaded otherwise by the defendant, assess the value of the missing property on a basis which is generous to the claimant.’26 His Lordship observed that, in the context of a claim for loss of a commercial opportunity, the presumption ‘is not directed at the legal burden of proof; rather it raises an evidential (ie, rebuttable) presumption in favour of the claimant which gives him the benefit of any relevant doubt. The practical effect of that is to give the claimant a fair wind in establishing the value of what he has lost.’27
Minimum obligation rule
If damages for loss of a commercial opportunity are sought in contract, the assessment of those damages may be affected by the operation of the ‘minimum’ or ‘least onerous’ obligation rule.28 This rule provides that ‘in an action for breach of contract, a defendant is not liable in damages for not doing that which he or she has not promised to do.’29
In a lost commercial opportunity context, the operation of the rule is illustrated by the decision of the English Court of Appeal in Withers v General Theatre Corporation
Ltd.30 The defendant engaged the claimant to perform a show, at the defendant’s
option, at the London Palladium, or at another theatre controlled by it. The defendant refused to allow the claimant to perform at the Palladium. The claimant sought damages for breach of contract, including damages for the loss of an opportunity to enhance his reputation by performing at that theatre. Liability was admitted and on the question of damages, the trial judge directed the jury to assess the claimant’s
25 Browning v Brachers [2005] EWCA Civ 753 (20 June 2005). 26 Browning v Brachers [2005] EWCA Civ 753 (20 June 2005), [205]. 27 Browning v Brachers [2005] EWCA Civ 753 (20 June 2005), [210].
28 See generally, Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 19th ed, 2014) [10–
104]–[10–119]; Adam Kramer, The Law of Contract Damages (Hart Publishing, 2014) [13.3B].
29 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 91 (Mason CJ and Dawson J); see
also, 152 (Gaudron J).
30 Withers v General Theatre Corporation Ltd [1933] 2 KB 536; overruled, on a different issue, Malik v Bank of Credit and Commerce International SA [1998] AC 20.
damages on the footing that the claimant was entitled to perform at the Palladium, without directing the attention of the jury to the defendant’s option to require the claimant to perform at another hall. The jury awarded the claimant substantial damages.
Scrutton LJ allowed an appeal by the defendant from this direction, and ordered a retrial on the question of damages. His Lordship observed that where a defendant may perform a contract in one of several ways, damages must be assessed ‘on the basis that the defendant will perform the contract in the way most beneficial to himself and not in the way that is most beneficial to the plaintiff.’31 Scrutton LJ held that that the jury ‘ought to have been told that the question was what would be the most beneficial performance of the contract to the defendants, and that the damages could not exceed a basis calculated upon that.’32 Romer LJ delivered a separate judgment allowing the appeal on similar grounds.
In North Sea Energy Holdings NV v Petroleum Authority of Thailand,33 the claimant
and the defendant entered into a contract under which the claimant agreed to supply to the defendant a large quantity of Arabian Oil for 5 years. The defendant repudiated the contract and the claimant sought damages for loss of profit. The central issue in the damages case was whether the claimant would have been able to supply the oil in any event. The original supplier of the oil imposed destination restrictions on the oil. In order to secure the oil for supply to the defendant, the claimant therefore required the defendant to specify, in advance, the port of destination of the oil. Without those details, the original supplier would not have supplied the oil. The claimant argued that it was a term of the contract, on its proper construction or alternatively to be implied, that the defendant was obliged to specify the ports of destination before the first nomination. Alternatively, the claimant argued that there was a chance that even in the absence of a contractual obligation, the defendant would in fact have supplied the ports of destination and therefore damages could be assessed by reference to the loss of that chance.
31 Withers v General Theatre Corporation Ltd [1933] 2 KB 536, 549. 32 Withers v General Theatre Corporation Ltd [1933] 2 KB 536, 551.
Waller LJ (with whom Ward and Roch LJJ agreed) upheld the decision of the trial judge to award only nominal damages to the claimant. His Lordship held that the defendant was not under any contractual obligation to specify the ports of destination in advance. On the loss of chance case, Waller LJ held that the claimant was unable to prove, on the balance of probabilities, that it would have been able to supply the oil. This was because, on the facts, the defendant could not have supplied the port of destination information, and even if there was some chance it could have supplied the information, the court would not assume that a contract breaker would act contrary to its own commercial interests.34
The minimum obligation rule is frequently invoked by defendants in claims for the loss of an opportunity to renew a fixed-term contract. In Amann, the High Court considered whether the prospect of renewal of a fixed-term commercial contract, among other things, should be taken into account in determining the claimant’s entitlement to damages for its reliance loss. Mason CJ and Dawson J rejected the defendant’s argument that, because it was under no legal obligation to renew the contract, the prospect of renewal should be ignored. Their Honours observed that the minimum obligation rule is ‘necessarily subject to the rule in Hadley v Baxendale’35 and that, in the present case, the prospect of renewal was within the contemplation of the parties as a probable result of the defendant’s breach and therefore the value of the loss of that prospect could be taken into account in determining the claimant’s entitlement to reliance damages.36
However, Amann is not a true loss of commercial opportunity case. This is because, in that case, the fact of the claimant’s loss depended solely on the past hypothetical conduct of the defendant in renewing the contract. In that situation, the claimant must prove (as a matter of causation) that, on the balance of probabilities, the defendant would have renewed the contract.37 Subject to the minimum obligation rule, the claimant is then entitled to damages for its full loss.38
34 North Sea Energy Holdings NV v Petroleum Authority of Thailand [1999] 1 Lloyd’s Rep 483, 496. 35 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 91.
36 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 92–4. 37 See above, Part two, ch 4.
38 See New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68, 80–1 (Gleeson CJ and
Handley JA); Murray Irrigation Ltd v Balsdon [2006] NSWCA 253 (19 September 2006), [46]–[58] (Bryson JA; Handley and Ipp JJA agreeing). Cf Tasmania Development & Resources v Martin (2000)