Full Court Minute Books

Case S115/2023

Cessnock City Council (ABN 60 919 148 928) v. 123 259 932 Pty Ltd (ACN 123 259 932)

Case No.


Case Information

Lower Court Judgment

20/02/2023 Supreme Court of New South Wales (Court of Appeal) (Macfarlan, Brereton & Mitchelmore JJA)
[2023] NSWCA 21


Contract – Breach of contract – Remedies – Damages – Reliance damages – Recoupment presumption – Where dispute arose from plan to develop airport at Cessnock – Where applicant operated as both commercial party and relevant planning authority – Where applicant lodged development applicant for consolidation of airport land into lots 1 and 2 – Where respondent was company that hoped to build hanger on lot 2 – Where on 26 July 2007, applicant executed agreement whereby it promised to grant respondent lease of part of airport – Where respondent spent around $3.7 million constructing hangar – Where on 29 June 2011, applicant told respondent that it would not be proceeding with subdivision of airport as it could not afford to connect proposed lots to sewerage system – Where primary judge held applicant breached parties' agreement by not committing funds to connect proposed lots to sewerage, but only awarded nominal damages – Where primary judge distinguished case from Amann Aviation and McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, such that recoupment presumption did not arise, and even if such presumption had arisen, applicant had rebutted it – Where Court of Appeal held recoupment presumption was engaged, and presumption had not been rebutted – Whether Court of Appeal erred in concluding presumption arose that respondent would have at least recouped its wasted expenditure if contract had been performed – Whether presumption arises where contract has inherent contingency that no net profit would be made.


15/09/2023 Hearing (SLA, Canberra by video connection)

28/09/2023 Notice of appeal

03/11/2023 Written submissions (Appellant)

03/11/2023 Chronology (Appellant)

01/12/2023 Written submissions (Respondent)

22/12/2023 Reply

13/02/2024 Hearing (Full Court, Canberra) (Audio-visual recording)

13/02/2024 Outline of oral argument (Appellant)

13/02/2024 Outline of oral argument (Respondent)

08/05/2024 Judgment (Judgment summary)