Bankier v Hap2 Pty Ltd (No 2)

[2019] QSC 180

SUPREME COURT OF QUEENSLAND

CITATION:

Bankier v HAP2 Pty Ltd (No 2) [2019] QSC 180

PARTIES:

MICHELLE ANN BANKIER

(plaintiff)

v
HAP2 PTY LTD
ACN 005 806 744

(defendant)

FILE NO:

BS No 2715 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Martin J

ORDER:

The plaintiff is to bring in minutes of order.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – where it was found that, through the provision of certain financial advice, the defendant caused the plaintiff loss – where the parties were invited to make submissions about the quantum of loss and the possible “grossing up” of that amount – whether damages for loss ought to be “grossed up” – whether that amount ought to be further “grossed up” to reflect the fact that it will be subject to capital gains tax and wholly taxable

Uniform Civil Procedure Rules 1999, r 360

Jamieson & Ors v Westpac [2014] QSC 32, distinguished

COUNSEL:

D J Campbell QC and B Hall for the plaintiff

R S Ashton QC for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Moray & Agnew Lawyers for the defendant

1. I gave judgment in this matter on 1 May 2019. Further submissions were sought from the parties on four matters:

   (a)whether the amount of $637,508 accurately reflected the agreement between the parties about the calculation of loss,

   (b)what “grossing up” of that amount should take place,

   (c)the interest payable, and

   (d)costs.

   Calculation of loss

2. In [182] of my reasons I said:

   “As I understand the calculation set out in Exhibit 12, on the findings I have made, the loss suffered by the plaintiff, at 30 June 2010, is $637,508. I will invite the parties to make further submissions about the consistency of that figure with my findings and with respect to the possible ‘grossing up’ of that amount on the basis that it is liable to tax as an assessable recoupment.”

3. The defendant has sought to make further submissions as to the date of the calculation of loss. The assessment I made was at 30 June 2010.  Exhibit 12 was a moderately complex set of calculations of loss that was based on a number of scenarios. While the defendant made no concessions as to liability it did agree that, if certain findings were made, then Exhibit 12 set out the loss which would follow. The reference to the date of 30 June 2010 in [182] determines the date of loss. 

4. I am satisfied that the amount of $637,508 accurately reflects the agreed loss based upon the findings I made.

   Grossing up

5. The next point concerned the issue of “grossing up” of the award. This arises out of the considerations dealt with by Jackson J in Jamieson & Ors v Westpac.[1]

   [1] [2014] QSC 32.

6. The plaintiff submits that the correct measure of damages is to add to the award of $637,508 an amount of $81,926 which…