This article challenges the long-standing rule concerning the assessment of damages for breach of contract that, where the contract allows for alternative methods of performance by the promisor, damages are to be calculated by reference to the minimum level of performance provided for in the...

This chapter discusses some contentious issues relating to the recovery of so-called ‘reliance damages' in an action for breach of contract. Does the commonly expressed ‘presumption of recoupment' relating to expenditure incurred by the claimant in performing, or preparing to perform, the...

In this article Professor McLauchlan discusses the important decision of the New Zealand Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd. He analyses each of the five judgments and highlights the questions and serious difficulties raised by them. He concludes that the facts of the...

This article discusses a line of cases that hitherto has not featured in the debate on the contentious issue, yet to be finally resolved in New Zealand, whether evidence of prior negotiations is admissible as an aid to the interpretation of a written contract. These cases concern the question...

This article discusses the fundamental questions concerning the application and conceptual basis of remoteness of damage in the law of contract that are raised by the decision of the House of Lords in The Achilleas [2009] 1 AC 61. It commences with a review of the academic literature that had a...

This article challenges the orthodox view that, in adjudicating upon contract interpretation disputes, the task of the courts is to determine the parties' presumed intention and that evidence of the parties' actual mutual intention, usually to be found in their communications in the course of...

When a contract for the supply goods or services is terminated on account of the buyer's wrongful repudiation, the supplier is usually entitled to recover damages based on the difference between the contract price/rate and the market price/rate. However, what is the position if the evidence...

This article examines mitigation and the causation of benefits in the assessment of damages for breach of contract, following the UK Supreme Court's decision in The New Flamenco [2017] UKSC 43. It clarifies the meaning and scope of “speculation” reasoning, according to which a benefit (or...

In this article Professor McLauchlan discusses the effects of Lord Hoffmann’s famous restatement of the fundamental principles of contract interpretation in the Investors Compensation Scheme case and traces the history of its reception in Australia. He argues that the case law is characterised...

It is trite law that a change of circumstances between the making of an offer to enter into a contract and a purported acceptance of that offer may render the offer incapable of acceptance so that no contract is in fact formed. The juristic basis of this legal postulate, however, is far from...