Edelman J

Steward J
Gleeson J
Beech-Jones J

61.

reasonably in anticipation of a contract. There is no justification in principle for

treating the wasted expenditure differently depending upon whether, as the
Council submitted on this appeal, the $3,000 had been reasonably spent on
foundations for the machines in order to accept delivery or whether the $3,000 had
been reasonably spent on foundations for the machines to operate efficiently. In
both cases, it should be sufficient that the expenditure was wasted as a result of the
defendant's breach of contract and the defendant did not overcome the uncertainty
resulting from its breach of contract to reduce the award of damages by
establishing that some or all of the expenditure would not have been recovered.

(iv) The facilitation principle can apply despite evidence of a prospect of non-
recoupment

165 The Council submitted that any facilitation of the plaintiff's onus of proof
could put no more than an evidentiary onus upon a defendant to show that there
was a "prospect" that the plaintiff would not recoup its wasted expenditure. Once
that prospect of non-recoupment was established, it was submitted, the plaintiff
could not recover anything without proof that the loss would positively have
occurred. It is hard to see how such an approach could be consistent with principle
or with the outcome of Amann Aviation, which was not challenged on this appeal.

166 If the force of the facilitation principle could be spent by a slight evidentiary
onus being cast upon defendants to show nothing more than a prospect of non-
recoupment, then plaintiffs will generally bear the difficult or impossible task of
overcoming the uncertainty caused by the defendant's wrongdoing. That is not
consistent with the foundations of the facilitation principle. Indeed, in Amann
Aviation, the majority held that even a 20 per cent chance that Amann Aviation's
contract would have been lawfully terminated before its expiry after three years
was not sufficient to reduce the award of damages based on wasted expenditure,
although their Honours did refer also to the significant likelihood of renewal of the
contract and the reasoning of Brennan J expressly relied upon the significant
prospect that the contract would have been renewed after the three years.233 The
prospect of termination of the contract was not, in all the circumstances, sufficient
to establish a prospect that the expenditure would not be recovered.

167 The Council submitted that support for the slight evidentiary onus could be
found in the reasons of Bell, Keane and Nettle JJ in Berry v CCL Secure Pty Ltd,234
where their Honours said that the evidentiary onus upon the Commonwealth was

233 (1991) 174 CLR 64 at 97-98, 111-112, 158.

234 (2020) 271 CLR 151 at 170 [29].