Gageler CJ

8.

He concluded:

"On principle therefore the proper solution would seem to be that the
promisee may recover his outlay in preparation for the performance, subject
to the privilege of the promisor to reduce it by as much as he can show that
the promisee would have lost, if the contract had been performed."

20 Whether affording such an opportunity or "privilege" is properly regarded

as imposing a legal onus on the defendant perhaps matters little. The defendant
bears a legal onus of proving that the expenditure, which the plaintiff in fact
incurred and which was in fact wasted in the event of non-performance, would still
have been wasted in the counterfactual of the contract having been performed in
the sense that the claim of the plaintiff will prevail if the defendant does not so
prove.

Precedent

21 The foregoing explanation of legal principle is consistent with unanimous

reasoning in each of McRae v Commonwealth Disposals Commission,25 Carr v
J A Berriman Pty Ltd,26 and TC Industrial Plant Pty Ltd v Robert's Queensland Pty
Ltd.27

22 McRae concerned an action for damages for breach of a contract for the sale
of a stranded oil tanker of indeterminate size and value. The plaintiffs were the
putative buyers and intended salvagers of the tanker. The first defendant was the
Commonwealth Disposals Commission. The breach of contract found was
constituted by breach by the Commission of a promise that such a tanker existed
at or near a specified location.28 Dixon and Fullagar JJ (with whom McTiernan J
concurred) observed:29

"The practical substance of the case lies in these three factors – (1) the
Commission promised that there was a tanker at or near to the specified
place; (2) in reliance on that promise the plaintiffs expended considerable
sums of money; (3) there was in fact no tanker at or anywhere near to the
specified place. In the waste of their considerable expenditure seems to lie
the real and understandable grievance of the plaintiffs, and the ultimate

25 (1951) 84 CLR 377.

26 (1953) 89 CLR 327.

27 (1963) 180 CLR 130.

28 (1951) 84 CLR 377 at 410-411.

29 (1951) 84 CLR 377 at 412.