Edelman J

Steward J
Gleeson J
Beech-Jones J

38.

the foreseeability of its wasted expenditure. The wasted expenditure, in the

language used by the Court of Appeal, is relevant only to "enliven the
presumption" that the respondent would have made revenue of at least that
amount.117 On that basis, the prospect of a loss of future potential revenue would
plainly be within the knowledge that the parties would be taken to have had at the
time of entering into the contract, sufficient for the general principle in Hadley v
Baxendale to apply.118 Perhaps for that reason, the only issue upon which the
Council sought, and obtained, special leave from this Court concerned whether it
could be accepted that the respondent had established that, but for the Council's
repudiation, it would have obtained revenue in an amount sufficient to recoup its
expenditure.

The issue in this Court

115 On appeal to this Court, there was no dispute that the Council repudiated
the agreement for lease. The grounds of appeal in this Court were confined to
whether the Court of Appeal erred in concluding that "a presumption arose that the
respondent would at least have recouped its wasted expenditure if the contract
between the [Council] and the respondent had been performed" and that "the
presumption was not rebutted in the circumstances of this case".

Damages for consequential loss arising from a breach of contract

The Australian and English positions

116 From the early nineteenth century, with the rise of the will theory of contract
law and the objective approach to agreement,119 English law recognised that the
basis for the remedial response of damages for a breach of contract was that
damages were to be assessed objectively by reference to lost expectations.120
Although the assessment of damages was generally a matter for a jury in the early
nineteenth century, juries were guided by judges as to "a general premise that a
party whose contract had been breached was entitled to be placed in the position

117 123 259 932 Pty Ltd v Cessnock City Council (2023) 110 NSWLR 464 at 487-488
[72]-[73], 517 [161].

118 See also Jackson v Royal Bank of Scotland Plc [2005] 1 WLR 377 at 390-391 [46]-
[47]; [2005] 2 All ER 71 at 83-84; European Bank Ltd v Evans (2010) 240 CLR 432
at 438 [13].

119 Chitty, A Practical Treatise on The Law of Contracts (1826) at 5-6.

120 Ibbetson, A Historical Introduction to the Law of Obligations (1999) at 213, 229.