In June 2017, the parties entered into an agreement under which Six Factor would sell and Aquilini would purchase certain Google G-Suite software licenses with a four-year term, and Six Factor would install the software for Aquilini and provide training and technical support throughout the term of the licenses. The purchase price was payable by Aquilini in equal instalments in years three and four of the licence term, with nothing payable for the first two years.
Six Factor performed all of its obligations under the agreement by acquiring and installing the Google licenses for Aquilini and providing training and technical support.
In July 2018, prior to the due dates for the payment instalments it owed under the agreement, Aquilini purported to terminate the agreement on the grounds that it was not going to save as much money by migrating over to the Google G-Suite software as it had expected when it entered into the agreement. Six Factor accepted Aquilini’s actions as a repudiation of the contract and sued Aquilini for the damages representing the total purchase price it expected to receive under the agreement for the Google licenses. Aquilini countersued, arguing that Six Factor had made a negligent misrepresentation regarding the costs that Aquilini could expect to save by migrating to Google G-Suite.
At summary trial, Aquilini pursued various issues, but its primary substantive defence was that Six Factor had failed to establish damages by failing to prove the underlying costs it had incurred in acquiring the software licenses from Google. Aquilini asserted that only the profit that Six Factor had expected to make from the agreement could be awarded to Six Factor as expectation damages and there was insufficient evidence to conclude what this profit might be. Aquilini did not pursue its counterclaim.
Madam Justice Murray held that this was a straightforward case of breach of contract and the evidence required to determine Six Factor’s expectation damages was simply the purchase price that it expected to receive under the contract, with adjustment to account for the fact that the damages awarded to Six Factor would be before both installments were due under the contract. The decision is under appeal by Aquilini.