Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd

The appeal concerned a dispute between Doppstadt Australia Pty Ltd (appellants) and Lovick & Son Developments Pty Ltd (respondents) regarding the purchase of a shredder. The primary judge had entered judgment for the respondents for $254,468.80, awarded interest, and ordered the appellants to pay 40% of the respondents' costs. Both parties appealed aspects of this decision. The respondents had purchased a Doppstadt AK430K shredder in February 2004 after Mr Lovick investigated various suppliers and had discussions with Doppstadt Australia representatives between October 2003 and February 2004, during which he alleged certain representations were made about the machine's suitability, reliability, and performance.

The court was required to determine whether the primary judge erred in their findings on liability, damages, interest, and costs. Specifically, the appeal and cross-appeal raised issues concerning misleading or deceptive conduct under the *Trade Practices Act 1974* and *Fair Trading Act 1987*, representations as to future matters, the duty to mitigate damages, the calculation of lost profits, the application of proportionate liability provisions, and the proper exercise of discretion regarding costs orders. The court also considered whether a *Jones v Dunkel* inference should have been drawn from the failure to call a witness or tender certain documents, and whether additional evidence should be admitted.

The court allowed the appeal in part and the cross-appeal in part. It varied the primary judge's orders by amending the reference to "the plaintiffs" to "the second plaintiff" and reducing the judgment sum from $254,468.80 to $216,424.32. The court also set aside the order regarding the amount of interest on the judgment from 1 March 2005 to 27 February 2013, directing the parties to agree on the calculation of interest. Furthermore, an error in the costs order, referencing section 100 of the *Civil Procedure Act 2005* instead of section 101(4), was corrected. The respondents' notice of motion to adduce additional evidence was dismissed with costs.