The recent case of El Ali v Tritton [2019] NSWCA 111 illustrates the Court’s discretion in their assessment damages following a breach of contract. The case involved a Vendor (Ali) entering into a contract with the Purchaser (Tritton) for the sale of vacant land for $740,000. After the parties had entered into the Contract, the Vendor refused to complete their obligations and further failed to comply with a notice to complete. Instead of accepting the Vendor’s repudiation, the Purchaser sought an order for specific performance, as the property had increased in value. However, negotiations to purchase the property ultimately fell through, with the purchaser buying an alternate block of land, and the vendor’s mortgagee selling the land to a third party for $800,000. The Court awarded the Purchaser expectation damages of $60,000 (plus interest) being the difference between the contract price of $740,000 and the market value of the land at $800,000. The Court reasoned that the although damages tend to be assessed at the date of the breach, damages in this circumstance should be assessed at the date that specific performance was no longer available as the Purchasers had reasonably acted in requesting specific performance. The Court’s narrow approach illustrates that the Court has discretion in relation to the assessment of damages, and the damages for the breach of a contract will not always be determined at the time of the breach.

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