Jagot J

70.

time they made the contract, as the probable result of the breach of it";242 (c) the
claimed wasted expenditure must not exceed the amount of the expenditure in
performance of or reliance on the contract; and (d) once the presumption is
engaged, the party in breach can rebut the presumption in whole or part by proving
that the claimed wasted expenditure is not "wasted" because, had it performed the
contractual promise, "the expense incurred would equally have been wasted" by
the other party in whole or part.243

192 Further, a claim for wasted expenditure does not exclude a claim for lost
profits resulting from a breach of contract but in such a case no "double recovery"
is permitted; recovery of lost profits which can be proved to have been suffered
over and above the claimed wasted expenditure must account for the capital outlay
which the wasted expenditure represents, an expenditure necessary to earn the
claimed lost profits (over and above the amount of the claimed wasted
expenditure).244

193 Given the reasoning in McRae v Commonwealth Disposals Commission245

and TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd,246 from which
these principles emerge with clarity, no greater complexity than this should be
sown into or permitted to invade this field.

194 This approach to the engagement of the presumption and the controls on its
operation also represents an appropriately robust and practical approach to the
assessment of damages for contractual breach based on considerations of fairness
and justice.247 The aptness of such an approach is exposed by the facts and
principled resolution of the present case.

The critical facts

195 Given the other reasons for judgment, the facts may be identified in
summary form. Most of these facts do no more than expose the wisdom of the

242 (1854) 9 Ex 341 at 354 [156 ER 145 at 151].

243 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 414.

244 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 at
141.

245 (1951) 84 CLR 377.

246 (1963) 180 CLR 130.

247 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 89, 119, 126,
154.