Gageler CJ

3.

7 But the statement of principle in Robinson v Harman does not in one

sentence encapsulate the totality of the necessary analysis. Critical to the operation
of the principle is to distinguish between the "damages" ultimately to be assessed
and the "loss" or "damage" which the plaintiff has sustained by reason of a breach
of contract: "damage" being "the phenomenon in respect of which an assessment
of damages is made".8 For there to be compensatory damages, there must first be
damage.9 The damage in respect of which a plaintiff is entitled to be compensated
by damages does not lie in mere non-performance of a contract but in the legally
cognisable respect or respects in which the position of the plaintiff has been made
worse by non-performance of the contract in comparison to the position which the
plaintiff would have been in had the contract been performed. Non-performance
of a contract has the potential to make a plaintiff worse off in different respects,
with the consequence that "[d]ifferent, even cumulative, heads of damage may be
pleaded by a plaintiff, depending on the type of contract involved and the kinds of
breach and damage occasioned, provided there is no double recovery".10

8 The principle in Robinson v Harman operates both: (1) to set the framework
for determining the category or categories of damage which a plaintiff has
sustained by reason of a defendant's non-performance of a contract; and (2) to set
a ceiling on the overall damages to which a plaintiff is entitled. Distinguishing the
damage from the ceiling on damages is important to understanding the justification
for and limit of the recoverability of damages for wasted expenditure.

9 Expenditure incurred by a plaintiff in reliance on an expectation of

performance might well be seen to be indicative of the minimum benefit or gain
which the plaintiff might be taken to have expected from performance of the
contract. Damages for wasted expenditure might on that basis be seen to be a
"proxy" for damages attributable to a category of damage constituted by the benefit
or gain from performance which the plaintiff might be taken to have lost by reason
of non-performance.11 But it is more than that. Wasted expenditure is itself a
category of damage.

8 Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 367. See also Paciocco v
Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 at 616 [283].

9 Seddon and Bigwood, Cheshire & Fifoot Law of Contract, 12th Aust ed (2023) at
1223 [23.2].

10 Clark v Macourt (2013) 253 CLR 1 at 11 [26].

11 See Kramer, The Law of Contract Damages (2014) at 482; Barnett, Damages for
Breach of Contract, 2nd ed (2022) at 81 [3-007].