Doppstadt Australia Pty Ltd & Anor v Lovick & Son Developments Pty Ltd

[2015] HCASL 15

DOPPSTADT AUSTRALIA PTY LTD & ANOR

v

LOVICK & SON DEVELOPMENTS PTY LTD & ANOR

[2015] HCASL 15
S205/2014

1. In February 2004, Lovick & Son Developments Pty Ltd ("Developments") purchased a Doppstadt high-speed shredder from Doppstadt Australia Pty Ltd ("Doppstadt Australia") for $602,328.00.  Developments leased the shredder to Lovick Engineering Pty Ltd ("Engineering").  Mr Lovick negotiated the purchase on behalf of Developments with Mr Davis, the second applicant, who represented Doppstadt Australia.

2. Developments and Engineering commenced proceedings in the Equity Division of the Supreme Court of New South Wales claiming damages from Doppstadt Australia and Mr Davis for alleged misleading and deceptive conduct at the time of sale. In May 2012, Slattery J gave judgment for Developments and Engineering holding that many of the pleaded representations respecting the quality and performance of the shredder were misleading and deceptive and that Mr Lovick acting on behalf of Developments and Engineering had relied upon those representations to the detriment of each ("the liability judgment")[1]. In December 2012, Slattery J gave judgment awarding Developments and Engineering $254,468.80 by way of loss of profits for the period February 2004 to February 2005 ("the damages judgment")[2]. In February 2013, Slattery J gave judgment directing Doppstadt Australia and Mr Davis to pay interest on the judgment sum between 1 March 2005 and 27 February 2013 together with 40 per cent of Development's and Engineering's costs plus interest ("the costs judgment")[3].

   [1]Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor [2012] NSWSC 529.

   [2]Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 2) [2012] NSWSC 1579.

   [3]Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 3) [2013] NSWSC 135.

3. Doppstadt Australia and Mr Davis appealed to the Court of Appeal of New South Wales (Ward, Emmett and Gleeson JJA) against all three judgments[4].  Developments and Engineering cross-appealed against the damages and costs judgments.  Doppstadt Australia and Mr Davis were largely unsuccessful in each appeal and Developments and Engineering had substantial success on their cross-appeals. 

   [4]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158.

4. Of present relevance is the rejection of three of Doppstadt Australia's and Mr Davis's challenges. The first challenge was to Slattery J's finding that, had Doppstadt Australia's and Mr Davis's misleading and deceptive conduct not induced Mr Lovick to cause Developments to purchase the shredder, Mr Lovick would have arranged for Developments to purchase a Peterson shredder ("issue 1")[5].  The Court of Appeal held that Slattery J did not err in drawing the inference that Mr Lovick would have arranged for the purchase of the Peterson machine[6], although Gleeson JA, giving the leading judgment, differed from Slattery J as to the date on which the order would have been placed[7]. 

   [5]Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 2) [2012] NSWSC 1579 at [8], [32].

   [6]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [266]-[275].

   [7]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [283], [288].

5. The second challenge concerned Slattery J's finding that sufficient work was available to Engineering to use the Peterson machine to the same capacity between February 2004 and February 2005 as it was in fact used between February 2005 and June 2005 ("issue 2")[8].  Gleeson JA concluded that the finding had been open taking into account evidence including that of Mr Hurley, notwithstanding that Mr Hurley died before trial[9].   

   [8]Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor (No 2) [2012] NSWSC 1579 at [36].

   [9]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [296]-[302].

6. The third challenge concerned the inclusion in the revenue derived from the use of the Peterson machine of certain invoices, which Doppstadt Australia and Mr Davis contended related to the use of a different machine ("issue 3").  The Court of Appeal rejected this challenge on several grounds, which included that counsel for Doppstadt Australia and Mr Davis had been obliged to put to Mr Lovick the implications which it was proposed to submit could be drawn from the evidence of the invoices in circumstances in which those implications were not obvious[10]. 

   [10]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [338]-[340].

7. Doppstadt Australia and Mr Davis apply for special leave to appeal against the Court of Appeal's orders determining the liability and damages appeals.  The application concerning the first Court of Appeal judgment was not filed within time[11] and Doppstadt Australia and Mr Davis ask that compliance with the time limit be dispensed with[12].  A satisfactory explanation for the short delay has been provided.  However, for the reasons to be given, there is no utility in an order enlarging the time in which to bring the application. 

   [11]High Court Rules 2004 (Cth), r 41.02.1 provides that an application shall be filed within 28 days after the judgment below was pronounced.

   [12]High Court Rules 2004 (Cth), r 41.02.2.

8. Doppstadt Australia and Mr Davis do not identify any questions suitable for the grant of special leave.  Each of the claimed errors in fact-finding goes to one consideration among several that were relied upon by the Court of Appeal in coming to its conclusion on issues 1-3.  Any appeal would enjoy insufficient prospects of success to warrant a grant of special leave.

9. The application is dismissed with costs. 

10. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

V.M. Bell
5 March 2015 S.J. Gageler