Berryman v Hames Sharley (WA) Pty Ltd

Berryman sought damages from Hames Sharley (WA) Pty Ltd, an architect and town planning adviser, for loss of commercial opportunity following the gazettal of a new town planning scheme that prevented the plaintiff from proceeding with a proposed project. The Supreme Court of Western Australia was tasked with determining whether the defendant had a duty of care to warn the plaintiff about the risk of the new planning scheme being gazetted, and if so, whether the plaintiff's losses were sufficiently linked to the defendant's breach. The court was also required to assess the damages, including the valuation of the lost opportunity and the likelihood of the project being completed.

The court found that the defendant had a duty of care that extended beyond the terms of the contract and the plaintiff's ambivalence about the project. The defendant was held to be in breach of both common law and statutory duties for failing to warn the plaintiff about the risk of the new town planning scheme being gazetted. The court assessed the damages based on the value of the commercial benefit that the plaintiff had foregone, taking into account the likelihood of the opportunity being realised. The court determined that the quantum of the plaintiff's loss was $306,300, and that the plaintiff was also entitled to recover additional fees of $4,844.75. The court ordered the defendant to pay interest on the total amount of $311,144.75 from 31 December 2004 (the date when the loss accrued) to the date of judgment.

The court considered the reasoning in the case of Sellars v Adelaide City Council, which held that damages should be assessed at the date of the breach rather than the date of trial. The court applied this reasoning to reduce the amount of compensation payable to the plaintiff. The court also considered the likelihood of the project being completed and the prospects of the opportunity being brought to a successful conclusion. The court found that the plaintiff was entitled to recover damages for the loss of commercial opportunity, and ordered the defendant to pay interest on the total amount from the date when the loss accrued to the date of judgment.