Bonny Glen Pty Limited v Country Energy

Bonny Glen Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the primary judge that dismissed its claim for economic loss. Country Energy cross-appealed, challenging the quantum of damages awarded by the primary judge. The dispute arose from actions taken by Bonny Glen in response to a situation created by Country Energy's negligence, which involved the destruction of a windbreak.

The Court of Appeal was required to determine whether the economic loss suffered by Bonny Glen, arising from its decision to cut down apple trees due to concerns about spray drift, was a foreseeable consequence of Country Energy's negligence. The court also had to consider the correct basis for calculating the damages for this economic loss and whether the primary judge had correctly assessed this quantum. Additionally, the court considered the procedural appropriateness of a cross-appeal in this context.

The Court of Appeal allowed Bonny Glen's appeal and Country Energy's cross-appeal. The court reasoned that the loss was foreseeable, as the destruction of the windbreak created a situation where Bonny Glen could reasonably anticipate being unable to spray its apple trees without causing drift onto neighbouring properties, particularly given the development consent obtained by Mr Hawke for subdivision and the increasing community concern and regulatory scrutiny regarding pesticide drift. The court found that the primary judge had erred in dismissing the claim for economic loss and in the calculation of damages.

Consequently, the Court of Appeal ordered that Country Energy pay Bonny Glen's costs of the appeal, and Bonny Glen pay Country Energy's costs of the cross-appeal. The judgment for Bonny Glen was increased from $59,785.65 to $381,985.65, to take effect as at 31 August 2007. The court also directed written submissions regarding the costs of the proceedings below.