Abstract:
This paper is concerned with whether, and when, it is appropriate within the law of contract to award as damages the reasonable fee that ought voluntarily to have been paid by a contract-breaker in order to be released to pursue conduct that would otherwise be in breach of contract. Written for the occasion of the retirement of the long-serving Chief Justice of New Zealand, Dame Sian Elias, it focuses on one of her early judgments, Cash Handling Systems Ltd v Augustus Terrace Developments Ltd, and contrasts it with the recent decision of the United Kingdom Supreme Court in One Step (Support) Ltd v Morris-Garner. It argues that release fee damages are an important part of the contract-law armoury, especially in relation to negative promises, taking the view that the approach in Cash Handling is preferable to that taken in Morris-Garner.