GEC Alsthom Australia Pty Ltd v Brimbank City Council [1998] FCA 174

GEC Alsthom Australia Pty Ltd v Brimbank City Council [1998] FCA 174

The earlier order required a hypothetical calculation of GEC's net loss of income from the failure to supply a gas energy flow of 95 gigajoules per hour, not a calculation based on actual daily production records. On that basis, the order should be amended to clarify the definition of direct loss, correct cross-references, remove the deduction for calculation errors, apply royalties consistently with hypothetical sales volumes where necessary, and require interest to accrue monthly from the end of the month in which each loss was suffered.

Jurisdiction
Australia
Judgment Date
02 March 1998
Procedural Posture
Federal Court Civil Proceeding Concerning Indemnity for Loss From Deficient Gas Energy Flow / Reasons for Judgment on Amendment and Calculation of Orders Made on 18 August 1997
Outcome
The Court indicated that the order of 18 August 1997 should be amended and circulated a draft substituted order; counsel would be heard on the final form of the order and costs of GEC's motion on notice dated 4 December 1997.
Legal Topics
['indemnity' 'calculation of Net Loss of Income' 'amendment of Orders' 'interest Under S 51 A(1) of the Federal Court of Australia Act 1976' 'royalties Under Gas Supply Agreement']
['contract Law' 'civil Procedure' 'damages and Interest'] ['indemnity' 'calculation of Net Loss of Income' 'amendment of Orders' 'interest Under S 51 A(1) of the Federal Court of Australia Act 1976' 'royalties Under Gas Supply Agreement']

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Procedural Posture

Federal Court Civil Proceeding Concerning Indemnity for Loss From Deficient Gas Energy Flow / Reasons for Judgment on Amendment and Calculation of Orders Made on 18 August 1997

Legal Issues

  1. 1 ['Whether paragraphs 2, 4 and 5 of the order of 18 August 1997 should be amended to correct omissions and cross-references.' "How GEC's net loss of income should be calculated under paragraph 2 of the order of 18 August 1997." 'Whether a deduction should be allowed for calculation errors in an essentially hypothetical calculation of loss.' "How residual royalties under the Gas Supply Agreement should be credited in calculating GEC's loss." 'From what date interest should accrue on amounts payable to GEC by way of indemnity.']

Ratio Decidendi

The earlier order required a hypothetical calculation of GEC's net loss of income from the failure to supply a gas energy flow of 95 gigajoules per hour, not a calculation based on actual daily production records. On that basis, the order should be amended to clarify the definition of direct loss, correct cross-references, remove the deduction for calculation errors, apply royalties consistently with hypothetical sales volumes where necessary, and require interest to accrue monthly from the end of the month in which each loss was suffered.

Court Disposition

The Court indicated that the order of 18 August 1997 should be amended and circulated a draft substituted order; counsel would be heard on the final form of the order and costs of GEC's motion on notice dated 4 December 1997.

Orders

  • ['Paragraph 2 of the order of 18 August 1997 is to be amended by inserting immediately before the words "net loss of income" the words "\'direct loss\' means \'net loss of income\' and...".' 'Paragraph 4 of the order of 18 August 1997 is to be amended by adding after the numeral "3" the word and numeral "and 5".'...