Auzfish Trading Pty Ltd v New Mapoon Aboriginal Council [1993] QSC 413

!":'J~ State Reporting Bureau~"''-" --~--------------------------------------------------------------------------- TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 98 of 1992 AUZFISH TRADING PTY LTD Plaintiff and NEW MAPOON ABORIGINAL COUNCIL Defendant BRISBANE .. DATE 30/11/93 JUDGMENT 1 df.J. rf,.A• ~ .... T ~, -- 1 of 22 -- 301193 mkg (Ryan J) HIS HONOUR: I give judgment for the plaintiff against the defendant in the sum of $185,502.41 and I order the defendant to pay the plaintiff's costs, including any reserved costs, to be taxed. I publish my reasons. Perhaps I should say that since the amount of the judgment is under $200,000 an application might have been made in relation to the scale of costs but, in my opinion, they should be on the Supreme Court scale. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 22 -- IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY No. 98 of 1992 Before Justice Ryan [Re: Auzfish Trading Pty Ltd] BETWEEN: AUZFISH TRADING PTY LTD AND: c NEW MAPOON ABORIGINAL COUNCIL " REASONS FOR JUDGMENT- RYAN J. Judgment delivered 30 November 1993 Counsel: Mr A. Philp for the Plaintiff Mr K. Priestly for the Defendant Solicitors: MacDonnells for the Plaintiff M. McLaughlin for the Defendant Hearing Date(s): 6,7,8,15 October 1993 Plaintiff Defendant -- 3 of 22 -- IN THE SUPREME COURT OF QUEENSLAND CAIRNS DISTRICT REGISTRY Before Justice Ryan [Re: Auzfish Trading Pty Ltd] BETWEEN: AUZFISH TRADING PTY LTD AND: NEW MAPOON ABORIGINAL COUNCIL REASONS FOR JUDGMENT - RYAN J. Judgment delivered No. 98 of 1992 Plaintiff Defendant The defendant in this case is a body corporate pursuant to the provisions of the Community Services (Aborigines) Act 1984. Mr Mark Laska and his wife are directors of the plaintiff company. Mr Laska became interested in 1988 in establishing a fish processing plant in Cape York. An initial attempt to interest a local community ( Seisha) in a joint yenture project was unsuccessful. In 1990 he wrote to the New Mapoon Council outlining a proposal to build a freezer facility on Council property. This letter was presented to a meeting of the Council, but the proposal was rejected. The letter has not been -- 4 of 22 -- 2 preserved. At· Mr Laska' s request, the Council convened a meeting to give him an opportunity to discuss his proposal. Mr Laska gave evidence that _he told the meeting that he wanted to set up the freezer facility there, that there was a good opportunity for the locals to supply the freezer with fish, and that the plaintiff would create employment_there if.they wanted it. He inquired whether they had fishermen available to supply the-freezer with fish. He said_that if anybody went out fishing the plaintiff would supply ice for the fishermen free of charge, and that it would teach them to process fish.. He told the meeting that he would pay for the processing plant to be built, that he would operate it for five years, and that he would hand it over to the community free of charge. He said that they could take the five year agreement or take the project on as a joint venture. He handed over a draft contract which had been prepared for use with the Seisha community which provides for a joint venture. He was asked to wait outside. He was invited to return, and was told that it had been decided that he could go ahead with er.ecting the freezer. In cross-examination Mr Laska said that he informed the Council that he wou~d employ local fishermen and would purchase seafood ·from locals, but later he denied using the word "employ". He said that all he said was that he would buy fish from the local fishermen.- Mr. Twohill who is an accountant, was employed as the administration officer of the New Mapoon Community Council from August 1990 until September 1991. He attended the meeting at -- 5 of 22 -- 3 which Mr Laska put forward a proposal to set up a freezer plant for the purpose of buying and processing seafood on the New Mapoon property. He said that Mr·Laska proposed to erect the freezer at his own cOst with no expense to the Council and if he was allowed to operate it for five years the property would then revert to the Council. The Council discussed the submission in the absence of Mr Laska and agreed to it. He said that he took minutes of the meeting and had them typed up afterwards and e . inserted in a file. Mr Mervyn Bond is the clerk attached to the New Mapoon Council and its most senior administrative officer. In 1990 he was also a Council member. He gave evidence that a written proposal was received from Mr Laska which was discussed by the Council and rejected. The Council at Mr Laska' s request convened a meeting to give him the opportunity to discuss his proposal further. He said that he had very limited recall of what Mr Laska said about his proposal. Mr Laska told the meeting that he wanted to build a freezer plant on council land, that he would operate it for five years and after the five years the facilities would revert back to the council at no cost. Mr Bond asked him about opportunities for employment and training of local people, and was told that they would be provided for New Mapoon residents. The training Mr Laska would provide was gutting, gilling, processing and packaging. Mr Laska said that all purchases would be from the local communities. Mr Bond said that he wrote down the decision of the Council. It is as follows: "Mr Laska wishes to set up a freezer to cater for fishermen and train local people in packing, cleaning -- 6 of 22 -- 4. and processing fish. at no cost to Council. Council accepted the offer in regards that after 5 years will revert". The note follows one accepting a trading statement in relation to the.beer canteen for the period ended 31 October 1990. I am satisfied that it is not a contemporary note of the proceedings, since a community fis~ing licence was issued to the Council on 3 Octqber 1990 which contains a clause that Mr Mark Lc;ts~a .of Auzfish Trading Pty Ltd may engage ~n assisting the running of fishing operatio~s undertaken by t~e -community under the terms and conditions of this permit. This indicates clearly that the mee_ting must have been earlier than 3 October 1990. Bond: The following passages occur in the cross-examination of Mr "See, Mr Bond, there was never any agreement, was there, that Mr Laska or his company - when I say Mr Laska I'm referring to the plaintiff company - there was never any agreement, was there, that Mr Laska would only purchase seafood from the New Mapoon locals? ... That's not in the minutes. No. There was no agreement to that effect, was there? There was. See, he could purchase from anyone, couldn't he? New Mapoon locals, other community members, fishermen, any fishermen, that's right, isn't it?-- It's not in the minutes there but it was und~rstood_that he only buy from local communities. Welll was it merely the case that he would buy fish from the local fishermen, that he would buy the fish from the local fishermen but not that he would only buy fish from the local fishermen, you understand the difference, don~~ you? ... Yes. That could be-the case, couldn't it, he said fish from the local -fishermen but not only . local fishermen? You are nodding, is yes? ... Yeah. - ·- he'd buy from the that a That could be the case, couldn't it? You didn't have . it· in your minutes, ,did you? ... That'~ right." -- 7 of 22 -- 5 Mr Bond admitted that no details were provided at the meeting as to when training would occur or what form it would take. I am satisfied that a verbal agreement was made between the plaintiff and defendant in 1990-in relation t6 the establishment of a freezer and fish processing plant on land at New Mapoon. In the defence the defendant denies that it made any agreement with the plaintiff, but its letter of 20 February 1992 to which I shall refer later purports to terminate the verbal agreement made with the plaintiff and to set out the terms of the agreement. Mr Bond's evidence was that Mr Laska's offer was accepted by the Council. The real dispute is one as to the terms of the agreement. On the basis that an agreement was reached, it is common ground that its terms were (a) that the plaintiff would construct a freezer and fish processing plant on the appellant's land and would operate it for a period of five years, and (b) that at the expiration of the five year period the freezer and fish processing plant would become the property of the defendant. There is disagreement as to whether representations were made that the plaintiff would employ residents of New Mapoon in the operation of the plant, and that purchases of fish for processing at the plant would be made exclusively from locals. In relation to the first of these matters, I accept the evidence of Mr Bond that he asked Mr Laska about opportunities for employment and training of local people, and that he said they would be provided for New Mapoon residents. Mr Laska had himself said that he would create employment if the-locals wanted -- 8 of 22 -- 6 . it. I consider that this representation should be understood as including the ·provision of opportunities for employment and training in the operation of the freezing plant that was to be handed over in due course to the defendant. I am·satisfied that Mr Laska made no representations that in the course of the operation of the business erected on New Mapoon he would purchase seafood exclusively from residents of New Mapoon. He admitted that he informed the Council that he would buy ·fish from local fishermen. Mr Bond gave evidence that Mr Laska gave such an undertaking, but in cross-examination gave the answers· I have set out. There is no record. of such an undertaking in the minutes of the meeting which Mr Bond says he wrote.· Nor is it alleged in the defence that.such an agreement was made. The allegation is that the plaintiff and defendant orally agreed that the plaintiff would purchase seafood to be processed through the plant from residents of New Mapoon. It is however claimed that the defendant [sic] repudiated the agreement by purchasing seafood from persons other than residents of New Mapoon. It would have been commercially hazardous to invest considerable funds in a plant which was to be operated by Mr Laska for pnly five years under an.agreement which restricted him to the purchase of fish from non-commercial fishermen. I am satisfied that while Mr Laska agreed to buy fish from the local commun~ty, he gave no commitment to buy fish only from New ·Mapoon.residents ... . · _Mr Laska started clearing the land and erecting the building after receiving the Council's approval. The Council arranged to -- 9 of 22 -- 7 obtain a permit . to · take and sell fish for the purpose of community fishing operations within the community and sale of fish taken to licensed buyers. This was issued on 3 October 1990 for 12 months. It was not renewed, but a· moratorium was announced to allow community fishing operations to continue while new licensing arrangements were implemented .. Mr Laska obtained for the plaintiff a restricted buyer's licence, and a certificate that the plaintiff was entitled to use premises for the purpose of and in .. connection with examining or treating fish for a commercial purpose. On 28 March 1991, Mr Twohill wrote to the Secretary Queensland Fish Management Authority, advising that the construction and future operation of the processing plant located at New Mapoon was entirely authorised and approved , by the· Council. The plant was opened in July 1991. According to Mr Twohill, the Council had prior to that purchased half a dozen nets and submitted an unsuccessful tender for a vessel. He said that prior to his departure in September 1991, there had been a couple of sales of very small quantities of fish by the local communities to the plant. He said that he was aware that two men had been brought up to train people and that sessions had been arranged. He said that most o~ the New Mapoon· community were individually keen fishermen and divers, but they were not involved in fishing on a commercial basis. Mr Laska said that during the initial period until November 1991 he relied on local community residents providing him with fish from their own fishing activities. He said that he tried to get existing commercial fishermen ·to use·his facilities by -- 10 of 22 -- 8 placing advertisements, but he agreed that these we~e for persons of· aboriginal and·Torres Strait descent. He agreed that it was in -Februar~ 1992 that he started buying significant quantities o~ seafood from tommercial fishermen. According to·Mr Laska, when the plant was opened in July 1991 he told Mr Bond-that a Mr· Hansen was coming from Cairns to Bamaga to show how to process fish and package and ice fish. Mr Hansen came up and stayed two days, but nobody.showed up. He asked Mr Bond why this was so, and was told that "most people have the week~ends off. They could not be bothered coming on the weekends". Mr Bond denied that he had said this. Mr Laska said also that he arranged for a Mr Joyce to come to New Mapoon in October to demonstrate how to set, handle and repair nets. Nobody showed up. According to Mr Laska, at first he got no fish from any source. After about a month he received about 80 kilograms of fish from the Injinoo community. He told Mr Bond that he was not receiving fish, and asked him if he had anyone that would go out fishing for him. He said that Mr Bond promised in August 1991 to get a .crew .together, ·but no crew was provided. ~r Bond denied that he was· -told this.· Mr Laska said that he sold ice to tourists .and. the local community.. He provided free ice to the local communities for fishing purposes, but received no fish in return. He said that he made attempts to get other aborigines and islanders to fish the area. Six people arrived from Innisfail and as a result of their fishing efforts some fish were put into the works, but they left after a short time. -- 11 of 22 -- 9 In mid November; Mr Laska decided to close down during the wet season. He said that he saw Mr Bond and told him th_at the freezer would be closing down through the wet. season. Mr Bond denied that he had been told this, but I am satisfied that Mr Bond knew that the freezer had been closed down. Mr Laska went to Cairns and returned to New Mapoon on 20 February 1992. There was a letter waiting for him when he got back dated 25 February. It is in these terms. Re: Agreement with the New Mapoon Council to Catch and Sell Fish "The New Mapoon Community Council hereby terminates the verbal agreement that was made with you in 1990. We request that you finish your operations within a period of 28 days and remove yourselves and your property from the New Mapoon Community. We understand that the terms of the verbal agreement- were that you would be entitled to run your business for a period of 5 years. However we believe that you have been in breach of your conditions under the contract, and for this reason we terminate. the agreement and any contract that may have been made with you. We consider that the terms of the original agreement were that you would act in a training capacity for residents of New Mapoon and that you would only buy fish from local residents. These were considered fundamental terms of the agreement. It was for this reason that your names were added to the Community fishing permit. Training is no longer given to any local residents and you have brought up people from outside this Community to fish in the area. We consider that you are in breach of a fundamental term of the contract and therefore terminate the-contract to take effect from the date of this letter." Mr Laska saw Mr Mervyn Bond and spoke to him about the letter. Mr Bond told him that a meeting would be held. It was attended by other communities as well as the New Mapoon community. Mr Laska said that he left the meeting not knowing what it was about, but I do not accept this as correct. In cross-examination, Mr Laska admitted that some reference had been -- 12 of 22 -- 10' made to him ·paying low prices for fish and to .nets being set across rivers or cr:eek mouths, but he could not recall any criticism being made of him for not employing locals. His brother, Mr Jerry. Laska,:attended the meeting and said that the main complaint was that his brother was buying from commercial fishermen.. Mr Bond .said that he organised the meeting and invited all · the Councils in the Northern Peninsula area. Complaints were made about Mr Mark. Laska and Mr Jerry Laska and about- commercial fishermen. He. himself told the meeting that nobody was being trained and being employed, and Mr Laska replied that people were not interested. Mr .Jerry Laska said that a suggestion was made at the meeting which received support that Mr Mark Laska and the New Mapoon Council should discuss the complaint about commercial fishermen. Mr Bond denied that it was suggested at the meeting that he have discussion with Mr Laska and try and sort out what was happening, and he said he did not have such discussions with him. Mr Laska said that after the meeting he spoke to Mr Bond, who told him to ·'.'carry on as you were". Mr Bond denied that he had said this. He agreed however that for five months after the meeting the Council·let the plairrt.iff operate in the same ·manner as before. Mr Hepworth, who _is a professional fisherman, met Mr Mark Laska in September· 1991 at Bamaga. In February 1992 he want to New·Mapoon with·Mr Laska and stayed until early in May. He said he went there to teach the people:how to pack and process and look after their fish.. He .did not in fact teach them, because -- 13 of 22 -- 1 1 no one came to be taught. He did not do anything to make known the fact that he was available to help, except to speak to a few people who came into the factory. According to Mr Laska, he told Mr Bond that Mr Hepworth was there for training and teaching. I am satisfied that prior to 25 February 1992 the plaintiff had provided some small opportunity for training of New Mapoon residents by arranging for Mr Hansen and Mr Joyce to come to New Mapoon, and he provided further opportunity for training by having Mr Hepworth come there in February 1992. I am satisfied that little effort was made to communicate the fact of their. presence to the community, but that their presence was known by Mr Bond. It was he who had control of training programs in the community. He admitted that he did not approach Mr Laska to set up a training program before February 1992. I am satisfied that no employment opportunity was provided to members of the community except to supply fish to the plaintiff. On the assumption that the representation made by Mr Laska as to employment and training amounted to a term of the contract, I consider that the evidence does not disclose a breach of the term by the plaintiff which would justify the defendant in treating the contract as discharged. The defendant acted to treat the contract as discharged by reason of breach by the plaintiff at a time when the plaintiff had performed a substantial part of its obligation, namely the construction of the plant on land under the control of the defendant, and when the plaintiff could still have performed any obligation it may have had to provide ~n opportunity for employment and training of locals. No details were provided or sought at the original -- 14 of 22 -- 12 meeting as ·to·the form the employment or training would take or when they ·would 'be provided; much less was any quantitative commitment sought or undertaken. The defendant had already received the mairr benefit-to which it was entitled under the contract, namely the e·r:ection of the plant which would after a period_of ~ive·years become. its property~ In my opinion, it was not entitled in the circumstances to treat the failure of the plaintiff to provide an opportunity for employment and to train residents as depriving it of substantially· the whole benefit which it was intended it should obtain from the contract. See Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (1962) 2 Q.B. 26. · on~7 August 1992 Mr Bond together with some State police and community police went to the pLace where the freezer was located, and· took possession and control of. the freezer and fish processing plant. It is admitted in the defence that since that time the defendant has had possession and control of the freezer and fish processing plant, and it has prevented Mr Laska from using it or· removing it from the defendant's land. -I consider that the action of the defendant in ejecting the plaintiff on 7 August 1992 constituted a breach of the agreement for whi~h~the plaintiff -is entitled to be _compensated. A ·valuation was made by a registered valuer of the plaintiff's coldroom :facility at New .Mapoo~ in October 1993. This was done without. a site inspection, on the basis of photographs·, plan and specifica.tions and information pr_ovided by the plaintiff. It assessed. the replacement value of the prdperty as $136,3~6 in July 1991 and applied to this a -- 15 of 22 -- 1 3 depreciation rate of 10 per cent, giving a figure of $122,747 as at August 1992. Its value in 1996 at the same depreciation rate would be $68,000. When the·defendant took control of the plant, there were a number of chattels that remained in the defendant's possession. A list of these items was prepared by Mr Lask~, and their cost price was inserted by him. This amounts to $81,255.50. According to Mr Bond, the defendant kept items that were vital for the operation of the freezer, but other items were taken by Mr Laska in September 1992. Mr Laska said that he was reliant during the initial period of four and a half months after the plant opened on local community residents supplying him with fish from their own fishing activities. It was only in February 1992 that he started buying significant fishermen. In 1992 quantities he sought of seafood fish mainly from from commercial commercial fishermen, put them in polystyrene·packs, iced them down and flew them to Cairns and thence to Sydney and Melbourne. He flew to islands in the Torres Strait and purchased fish there from the local fishermen. He made three trips to Torres Strait Islands by air in June 1992 and purchased fish·there. His plan for the future had been mainly to buy fish from local communities on those islands and also from trawlers based in the islands. A professional fishermen, Mr Cordingley, gave evidence that he sold fresh fish to Mr Laska over a period of 5 or 6 weeks. He said that the facility enabled him to supply fresh fish. If it had no·t been available, he would have supplied fish to mother ships to be taken to Cairns as ·frozen fish. Fresh fish commanded -- 16 of 22 -- 14 a much better·price. He received $8;000 for the first two weeks, but the amount dropp~d back· a little after that .. Mrs Faithful, a ·trader in seafood, said that she had purchased fresh f·ish from Mr Laska. She had herself operated a fish processing-plant at Karumba. She described his location as be~ng very good for the transport of fish to southern centres by air. The plaintiff's income was-derived from sales of fish and ice. Figures for purchases and sales of fish and for sales of ice are recorded in books which were tendered, but these records are incomplete, and Mr Laska's.method of recording sales and purchases was unreliable. He said that he had five books, but only· th:t.ee were put before me. He admitted an error in his accountant's figures for ice sales from 22 October 1991 to 26 February 1992 of $10,500. He used cash from sales of ice to purchase seafood without recording the transactions in an appropriate way. Mr Spencer, an accountant, prepared a financial statement for the plaintiff for the year ended 30 June 1992. This and an amended statement were tendered .. He also prepared profit projections for the plaintiff for the period 1993 to 1996. The amended statement dated 2 June 1993 shows an operating profit for the year ended 30 June 1992 of $7650.22. This was however calculated on the basis of deprecia~i~n on assets of 12 per cent, whereas the appropriate ·figure in view of the five year term of the operation w.as 20 per cent. A deduction should also be made of interest received, since this does not relate to trading. On this basis, another accountant, Mr Delaney, reported that there -- 17 of 22 -- 15- was a loss for the year of $1005. He was also critical of the state of the accounts. The original figure for sales of seafood for the year was $59,096.43. The adjusted figure is $103,837.43. Details of the adjustment are set out in a letter from Mr Spencer dated 2 June 1993. Mr Delaney totalled deposits to the bank account which appeared to be sales and arrived at a figure of $20,963. He pointed out also that he had not sighted any supporting documents for figures of $10,500 for ice sales from 22 October 1991 to 26 February-1992, and fish sales-to 30 June 1990 of $12,000. Mr Spencer said that the figure of $10,500 represented an estimation of ice sales that would have been sold over the period 22 October 1991 to 20 February 1992. In relation to fish sales to 30 June 1992, the adjustment was made on the basis that 1500 kilos of fish had been sold at $8 a kilo on a cash basis, and that money had not been put into the bank account of the plaintiff. He said ·that transfers were made to sales from directors' loan account of $40,200 on the basis of advice he received from Mr Laska. It appeared from the cross-examination of Mr Spencer that· his role had been to calculate the net profit or loss in large measure from estimates provided to him by Mr Laska. The records show initially a net loss of $34,674.75, then they indicate a profit of $7,650.22, and further adjustments indicate that a loss was sustained for the· year. I am satisfied that a loss was made, though I find it impossible to determine the precise amount of the loss. -- 18 of 22 -- 1 6 Mr Spencer made profit projections ·for t_he years 1993 to 1996 on the basis of certain figures which had bee~ supplied to him and which wer~ confirmed in evidence by Mr Laska. For the year 1993, the projected gross profit was $678.258, in comparison with $77,363 for 1992, and net profit was projected to be $575,1~8 in comparison with the· net profit for 1992 of $7,651. By 1996, the projected-gross profit was $809,000 and net profit was $698,186. The projected incr~ase in sales of seafood was from $104,981 in 1992 to $1,732,000 in 1993 and to $2,062,839 in 1996. These figures seem to me to lack any foundation in reality. In particular there is nothing to support the projected increase in sales for the year ended 30 June 1993 of a sixteen fold ~ • I" increase in sales of seafood. The plan to use aircraft to purcha~e seafood from the Torres Strait Islands may have resulted in a considerable increase in net income, but that had not been demonstrated in the period that the plan had been in operation. I conclude that I am unable on the evidence to make any realistic assessment of the profit which the plaintiff may have ear~ed from the operation of the plant. In Commonwealth v. Amann Aviation (1991) 66 ALJR 123 at p. 128, it was said in the joint judgment of Mason C.J. and Dawson J: - "The award of damages -for breach of contract protects a plaintiff's·expectation of receiving the defendant's performance~ That expectation arises out of or is cre-ated by the contract. Hence,· damages for breach of contract are often described as 'expectation damages'. The' onus of proving damages sustained lies on a plaintiff and the amount of damages awarded will be commensurate ·with the -plaintiff's expectation, objectively determined, rather than subjectively ascertained. That is to say, a plaintiff must prove, on the balance of probabilities, that his or her expectation of a certain outcome, as a result of -- 19 of 22 -- 1 7 performance of the contract, had a likelihood of attainment rather than being mere expectation". On that basis, as the amount of profit has not been demonstrated, I am unable to make an assessment of expectation damages. But in the same judgment it was said. at p. 129: "Where it is not possible for a plaintiff to demonstrate whether or to what extent the performance of a contract would have resulted in a profit for-the plaintiff, it will be open to a plaintiff to seek to recoup expenses incurred, damages in such a case being described as reliance damages or damages for wasted expenditure." In the instant case, it has not been established by the plaintiff on the balance of probabilities that it would have made a profit had the contract been performed. If that had been established, it would be my duty as I understand the position to make an estimation of the damages as best I could. The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for his breach of contract. Chapman v. Hicks [1911] 2 K.B. 786 at p. 792; Fink v Fink (1946) 74 C.L.R. 127 at p. 145, McRae v Commonwealth Disputes Commission (1951) 84 C.L.R. 377 at p. 411. But that does not mean that the plaintiff will be unable to recover damages. Mason C.J. and Dawson J. explained and amplified the proposition set out above as follows (at p. 131) "The law considers the just result in ·s~ch a case is to allow a plaintiff to recov~r such expenditure as is reasonably incurred in reliance_ on the defendant's promise. In this case, the -law assumes that a plaintiff would- at least have -recovered his or her expenditure had the contract been fully performed. It will still be open to a defendant, however, to argue that, notwithstanding the fact that it is jmpossible to assess what profits, if any, the plaintiff would. have made had the contr~ct been fully performed, the expenditure claimed by a plaintiff would nevertheless not have been recovered. 11 -- 20 of 22 -- 1 8 The repudiating party has the onus of showing that the party not in breach would have made a loss on the contract. See Commonwealth v Amann Aviation at p. 132. That has not been shown in the present case. While I am satisfied that a loss was made by the plaintiff in the first year of operation of the plant, I am not satisfied that it would have made a loss if the contract had been performed. Mr Delaney admitted it is difficult after one year of operations to determine future sales. Nothing that was said before me leads me to conclude that the plaintiff would have continued to make losses, or what the amount of any losses would be. The amount of the wasted expenditure was the cost of erecting the plant and equipment. There is a valuation of the replacement cost of the plant and equipment at $136,386. In the " -- plaintiff's balance sheet, plant and equipment at cost is shown as $80,050.94. I accept the latter figure, which was not challenged, since the relevant inquiry is as to the -amount expended by the plaintiff, and not as to the cost of replacing the plant and equipment. For that reason, I consider that this is not a case where damages should be assessed by reference to the amount by which the defendant had profited from the breach. The plaintiff is also entitled to damages for conversion of the chattels. There is evidence which I accept that the value of the chattels was $81,255.50. Accordingly, I assess damages at $161,306.44. I allow interest at 12 per cent on this amount for fifteen months. That amounts to $24,195.97. -- 21 of 22 -- • 19. I give judgment for the plaintiff against the defendant in the sum of $185,502.41, and I order the defendant to pay the plaintiff's costs, including any reserved costs, to be taxed: -- 22 of 22 --