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Gamerco SA v ICM

[1995] 1 WLR 1226

Case summary last updated at 02/01/2020 18:41 by the Oxbridge Notes in-house law team.

Judgement for the case Gamerco SA v ICM

 A was promoting a concert at which B would play. When the venue was declared unsafe (neither’s fault) they both lost money and the contract was frustrated. The promoters sued to reclaim the sum paid to the band and the court had to ask how much should be taken off due to band’s expenses. Garland J said that the burden was on the payee (here, the group) to say that the courts should exercise their discretionary ability to reduce the amount by the payee’s expenses (s.1(2)). He said there were 3 possible ways of offsetting expenses in cases of reclaiming money paid: (1) “Total retention”. This approach was taken by Goff J (above) who claimed that the act was giving effect to a recognition of “change of position”, so that all expenses should be deducted from the amount to be reclaimed; (2) “Equal apportionment” i.e. payee can offset the amount paid to him by the value of half his expenses; (3) “broad discretion” where the court would “do justice in a situation which the parties had neither contemplated nor provided for, and to mitigate the possible harshness of allowing all loss to lie where it has fallen”. He endorses the “broad discretion” approach, saying there was nothing in the act that supported Goff’s contention of recognition of a “change in position”. 

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