Gageler CJ

2.

through the application of standard limiting principles, such as remoteness and

mitigation, no further limitation on recovery should be imposed.

4 Specifically, the principle governing the recovery of damages for wasted

expenditure is not erroneous or deficient insofar as the principle as so stated: does
not require the plaintiff to establish an evidentiary foundation for presuming that
the plaintiff would have recovered the expenditure had the contract been
performed; does not have a threshold requirement that the defendant has somehow
made it "difficult" for the plaintiff to prove that the plaintiff would have made a
profit from performance of the contract; does not distinguish between expenditure
incurred by the plaintiff in the course of or for the purpose of performing its own
obligations under the contract and other expenditure incurred by the plaintiff in
reliance on an expectation of performance of the contract; and imposes a legal onus
on the defendant to establish the counterfactual that the expenditure would have
been wasted even if the contract had been performed.

5 In the balance of these reasons for judgment, I explain my understanding of

the justification for the recoverability of damages for wasted expenditure
according to the stated principle of recovery: first at the level of legal principle,
and second by reference to precedent in this Court. I undertake that task aware of
a vast academic literature,4 without seeking to engage with all competing academic
perspectives.

Legal principle

6 The "ruling principle"5 with respect to the recovery of compensatory

damages for breach of contract at common law is that stated in Robinson v
Harman:6 "where a [plaintiff] sustains a loss by reason of a breach of contract, [the
plaintiff] is, so far as money can do it, to be placed in the same situation, with
respect to damages, as if the contract had been performed". The principle is
universally recognised to prevent a plaintiff from being placed by an award of
compensatory damages in a better position than that which the plaintiff would have
been in had the contract been performed.7

4 Including, most recently, Winterton, "Reassessing 'Reliance Damages': The High

Court Appeal in Cessnock City Council v 123 259 932 Pty Ltd" (2024) 46 Sydney
Law Review (advance).

5 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286
[13].

6 (1848) 1 Exch 850 at 855 [154 ER 363 at 365].

7 Haines v Bendall (1991) 172 CLR 60 at 63.