Connector Park Pty Ltd v RV Pty Ltd - [2018] TASFC 13

[2018] TASFC 13

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Connector Park Pty Ltd v RV Pty Ltd [2018] TASFC 13

PARTIES:  CONNECTOR PARK PTY LTD
  v
  RV PTY LTD

FILE NO: 1111/2017
JUDGMENT

APPEALED FROM: RV Pty Limited v Connector Park Pty Ltd (No 2)

[2017] TASSC 22

DELIVERED ON:  3 December 2018
DELIVERED AT:  Hobart
HEARING DATE:  4, 5 June 2018
JUDGMENT OF:  Geason J, Martin AJ, Marshall AJ

CATCHWORDS:

Damages – Measure and remoteness of damages in actions for breach of contract – Loss of opportunity –Mitigation of damages – Lord Cairns Act – Evidence Act 2001 – Opinion rule – Admissibility.
Aust Dig Damages [4-5] [18] [1137-1138] [1146]

REPRESENTATION:

Appeal
Counsel:
             Appellant:  N Pane SC, C Groves
             Respondent:  S McElwaine SC
Solicitors:
             Appellant:  Dobson Mitchell Allport
             Respondent:  Shaun McElwaine + Associates

Cross-appeal
Counsel:
             Appellant:  S McElwaine SC
             Respondent:  N Pane SC, C Groves
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Respondent:  Dobson Mitchell Allport

Judgment Number: [2018] TASFC 13
Number of paragraphs: 286

Serial No 13/2018
File No 1111/2017

CONNECTOR PARK PTY LTD v RV PTY LTD

REASONS FOR JUDGMENT FULL COURT

GEASON J
MARTIN AJ
MARHSALL AJ
3 December 2018

Orders of the Court:

Leave to amend ground 6 is refused.

The order of the trial judge awarding damages to the plaintiff in the amount of $2,520,000 is set aside.

The matter of assessment of damages is remitted for further hearing and determination by the trial judge in accordance with these reasons and, in particular, in accordance with pars [243]-[266].

The cross-appeal is dismissed.

Serial No 13/2018
File No 1111/2017

CONNECTOR PARK PTY LTD v RV PTY LTD

REASONS FOR JUDGMENT FULL COURT

GEASON J
MARTIN AJ
MARHSALL AJ
3 December 2018

Introduction

In the early 2000s the parties were undertaking subdivisions of adjoining land. On 26 August 2004 they entered into a contract which contained mutual obligations, including a requirement that required the appellant (the defendant) to construct a roadway (the Connector Park roadway) by 6 January 2005, and do all things necessary to ensure the roadway was taken over as a public road maintainable by the Launceston City Council by 6 July 2005. Until the roadway was dedicated as a public road, the respondent (the plaintiff) was unable to proceed with its subdivision.
In breach of the contract, the defendant failed to complete construction of the roadway until 30 June 2008. The plaintiff sought damages for the loss of opportunity to obtain permits for the subdivision 3½ years earlier than it did, which delayed the receipt of income from the sale of lots in the subdivision.
At trial the plaintiff's claim for damages succeeded and the learned Chief Justice awarded damages of $2,520,000. The defendant appeals against that award on grounds primarily concerned with mitigation of damage and erroneous methodology relating to the assessment of damages.
The defendant counterclaimed alleging that the plaintiff had failed to make payments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASFC 13
Decision Date: 3 December 2018

CaseChat Overview and Summary

Connector Park Pty Ltd (Connector Park) and RV Pty Ltd (RV) were parties to a dispute concerning a contract for the sale of land. Connector Park sought damages for breach of contract, alleging that RV had failed to complete the purchase of a property. The matter came before the Supreme Court of Victoria.

The central legal issues before the Court were the appropriate measure of damages for RV's alleged breach of contract, specifically in relation to the loss of opportunity to sell the land to a third party, and the admissibility of certain expert evidence tendered by Connector Park. The Court also considered the application of the *Lord Cairns Act* and the *Evidence Act 2001* (Vic) in determining these issues.

Geason J, Martin AJ, and Marshall AJ found that Connector Park had failed to establish that RV had breached the contract. Consequently, the Court did not need to definitively determine the measure of damages for loss of opportunity or the admissibility of the expert evidence. The Court's reasoning focused on the contractual obligations and the evidence presented regarding the alleged breach.

As Connector Park did not succeed in proving a breach of contract by RV, the Court dismissed Connector Park's claim for damages.

Orders