Du Plessis v Morton Berg Pty Ltd

The plaintiff, who owned land in the Gold Coast Local Government area, sought damages from three defendants for allegedly negligent advice regarding a proposed subdivision of the land. The first defendant, a town planning firm, engaged the third defendant, a qualified town planner, to provide advice to the plaintiff. The third defendant advised that the land could be successfully subdivided, which led the plaintiff to apply for and obtain development approval. However, the approval was later revoked due to inconsistency with government regulations. The plaintiff sold the land for $800,000 and sued the defendants for damages. The case against the first defendant was dropped, and the plaintiff settled with the second defendant, who had issued the development approval. The court was tasked with assessing the damages due to the plaintiff from the third defendant, considering both direct losses and loss of opportunity, as well as adjusting for the settlement with the second defendant and accounting for taxation.

The court addressed several legal issues, including whether damages for direct losses and loss of opportunity should be awarded and, if so, in what amount. It also considered whether the award should be adjusted for taxation and whether the settlement payment from the second defendant should be deducted from any award against the third defendant. The court found that damages for direct losses were warranted, as the plaintiff had incurred costs related to the development application and compliance with the approval conditions. Additionally, the court awarded damages for the loss of opportunity to profit from an alternate business venture due to the revocation of the development approval. The court decided that the settlement payment from the second defendant should be deducted from the award against the third defendant to avoid double recovery, without attributing the settlement sum to specific categories of loss.

The court awarded the plaintiff damages of $306,854.20 against the third defendant, comprising direct losses of $93,673.65, loss of opportunity of $404,609.32, and a deduction for the settlement with the second defendant of $191,428.77. The third defendant was also ordered to pay interest on the damages at court rates from the commencement of the proceeding and the plaintiff's costs on the standard basis. This decision provides clarity on the assessment of damages in cases involving property loss and loss of opportunity, while also addressing the need to avoid double recovery in damages awards.