Ambrose J:

In this case I was only concerned with the counterclaim, which was ordered by the Federal Court on 7 August 1967, to be retried.

The Federal Court decided that the plaintiffs were guilty of a breach of the contract of 18 June 1964, by reason of their insistence, in their letter of 15 December 1964, on immediate payment on delivery at $85 per 1,000 bricks for all bricks to be delivered to the defendants in the future; that in all the circumstances the defendants were entitled to treat the breach as a complete repudiation of the contract so as to discharge the defendants from their obligations under the contract; and that the defendants elected to do so by their letter of 19 December 1964.

I did not, therefore, have to decide the question of the plaintiffs' liability and had merely to decide the quantum of damages.

At the commencement of the retrial the defendants abandoned the last two items of their counterclaim and proceeded only with the first two items.

The first item of the counterclaim was the difference between the contract price and the lowest possible market price for 281,000 bricks of No. 3 commercial quality. The contract price was $79 per 1,000 bricks. I found that the lowest possible market price was $79 per 1,000 bricks, which was the price offered by the plaintiffs in their letter of 8 January 1965; and that at that date the defendants had not entered into any contract with any other supplier. I found that the defendants did not conclude a contract with Bin Keow Brick Works Ltd until 29 January 1965. It seemed to me that the offer made by the plaintiffs on 8 January 1965, was a reasonable one; that the defendants should have mitigated their loss by accepting the plaintiffs' offer; and that no loss would have been suffered by the defendants if they had accepted it. I accordingly came to the conclusion that the defendants were not entitled to any damages in respect of the first item of the counterclaim.

The second item of the counterclaim was for $11,868, being wages paid to 18 workers for 69 days at $172 a day while the defendants were allegedly waiting for bricks to be supplied by the plaintiffs. It seemed to me that this loss could have been avoided. I accepted the evidence adduced by the plaintiffs that it was the practice in the building trade for bricklayers and brick carriers to be sent away without pay if there was no work for them to do because of a lack of bricks. I accordingly came to the conclusion that the defendants were not entitled to any damages in respect of the second item of the counterclaim.

I held, however, that the defendants were entitled to recover nominal damages for breach of contract: Halsbury's Laws of England, 3rd Edn., p. 220, para. 388. I accordingly awarded the defendants the sum of $10 as nominal damages. It seemed to me that, although the defendants were, in my opinion, not entitled to any damages in respect of the counterclaim, for reasons given above, the plaintiffs by their breach of contract had caused the defendants considerable inconvenience and unreasonably delayed the construction of the block of flats planned by the defendants, and should, therefore, pay the defendants the costs of the retrial and also the original trial of the counterclaim. And I accordingly made an order to that effect and directed that the costs be taxed on the lower scale.

Order accordingly.