Gageler CJ

13.

31 Mason CJ and Dawson J were also clear in stating, with specific reference
to L Albert & Son and McRae, that "a plaintiff has a prima facie case for recovery
of wasted expenditure once it is established that the expense was incurred in
reliance on the promise of the party in breach, there being a failure of performance
by that party"48 and that establishment by a plaintiff of a prima facie case for
recovery of wasted expenditure shifts the onus to the defendant "to establish that
such expenditure would not have been recouped even if the contract had been fully
performed".49

32 Their Honours recognised that the recovery of damages for wasted

expenditure under a contract from which no net profit would have been realised
not only places the plaintiff in the position the plaintiff would have been in had the
contract been fully performed but also restores the plaintiff to the position the
plaintiff would have been in had the plaintiff not entered into the contract.50
Distancing themselves from the view of the recovery of damages for wasted
expenditure vindicating a "reliance interest" in the sense defined by Fuller and
Perdue,51 they noted that "[i]n this particular situation it will be noted that there is
a coincidence, but no more than a coincidence, between the measure of damages
recoverable both in contract and in tort".52

33 With reference to TC Industrial Plant, Mason CJ and Dawson J rejected the

notion that a plaintiff has an election, in the sense of an unconstrained choice, as
to whether to frame its claim for damages as one for the recovery of wasted
expenditure.53 The gist of their explanation was that how a plaintiff frames its claim
for damages within the framework set by the principle in Robinson v Harman can
be expected to turn on the nature of the contract (which might or might not have
been entered into with a view to direct or immediate profit) and on the plaintiff's
appraisal of the practical exigencies of proving and quantifying categories of
damage that might potentially be available to be claimed.54

34 True it is that their Honours said that in a case of damages assessed by

reference to wasted expenditure "the law assumes that a plaintiff would at least

48 (1991) 174 CLR 64 at 89.

49 (1991) 174 CLR 64 at 82, 86-87.

50 (1991) 174 CLR 64 at 85-86.

51 (1991) 174 CLR 64 at 82-83.

52 (1991) 174 CLR 64 at 86.

53 (1991) 174 CLR 64 at 85.

54 (1991) 174 CLR 64 at 85.