Hyder Consulting (Australia) P/L v Wilh Wilhelmsen Agency P/L & Anor

[2001] NSWCA 313

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Acceptance by conduct
4. › Where offeree takes benefit of services
5. › Whether standard conditions incorporated into contract
6. › Whether conditional acceptance constitutes counter-offer
7. › Whether subsequent performance and acceptance of benefit constitutes acceptance on original terms
1. Contract
2. › Construction
3. › Incorporation of standard terms
4. › ACEA Conditions of Engagement
5. › Whether approval requirement prevented incorporation
6. › Whether terms requiring completion prevented incorporation
1. Damages
2. › Tort
3. › Property damage
4. › Cost of rectification
5. › Whether theoretical tender cost or actual cost of repair is appropriate measure
6. › Betterment
7. › Whether reduction for new-for-old appropriate where plaintiff had no reasonable choice
1. Damages
2. › Tort
3. › Property damage
4. › Business interruption
5. › Sufficiency of evidence
6. › Whether loss proved where occupier different from owner

Quick Take

Where an offeree takes the benefit of services without accepting a conditional counter-offer, the original offer (including standard conditions such as ACEA terms limiting liability) is accepted by conduct. Actual cost of repair, where known, should ordinarily be preferred over theoretical tender cost in assessing rectification damages. No betterment deduction should be made where the plaintiff had no reasonable choice but to replace damaged property with new property and a crude percentage discount is inappropriate.