G W Sinclair & Co Pty Ltd v Cocks - [2001] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4907 of 1999

G.W. SINCLAIR & COMPANY PTY. LTD. (ACN 007 065 625)	Appellant
	v.
JOHN ROBERT COCKS and ROBYN COCKS	Respondents

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JUDGES:	BROOKING, CHARLES & BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25-26 September 2000
DATE OF JUDGMENT:	26 April 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 47

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Damages – Assessment – Sale of land – Deprivation of commercial opportunity – Future or potential events – Likelihood of occurrence – Prospect of benefit to be established on balance of probabilities - Relevance to measure of damages – Calculation of value of loss – Costs of proceedings against third party –Whether recoverable as damages.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G.A.A. Nettle, Q.C. Mr G.S. Lucas	Middletons Moore & Bevins
For the Respondents	Mr R.H. Smith	Blake Dawson Waldron

BROOKING, J.A.:

I agree with Charles, J.A.

CHARLES, J.A.:

John Robert Cocks and his wife, Robyn Cocks (the respondents) brought proceedings as plaintiffs in the County Court against the first defendant, Matlock & Associates Pty. Ltd. ("Matlock") claiming payment of the balance of a deposit payable under a rescinded contract for sale of the Cocks's home at 40 Monomeath Avenue, Canterbury. In September 1995 the respondents joined their estate agent, the appellant ("Sinclair & Co."), as a second defendant claiming damages for misleading and deceptive conduct, and also damages for breach of the terms of Sinclair & Co.'s retainer as real estate agent in connection with the sale of the property. In June 1996 Sinclair & Co. commenced a second action against Mr and Mrs Cocks in the Magistrates' Court for the balance of its commission and marketing expenses it claimed were owed as a result of the sale of the property by the respondents to Matlock. That second matter was later uplifted to the County Court and in June 1998 was consolidated with the proceeding brought by Mr and Mrs Cocks and thereafter was treated as a counterclaim.

Mr and Mrs Cocks's claim came on for trial in the County Court at Melbourne on 12 June 1998. It was heard first as an undefended matter against Matlock. By this time the claim appears to have become a claim for damages for breach of an enforceable contract. Judgment was entered for damages for $204,212 and costs. The trial of Mr and Mrs Cocks's claim against Sinclair & Co. commenced on 2 February 1999. After a hearing of 12 sitting days on 7 March 1999 the learned judge gave judgment for Mr and Mrs Cocks against Sinclair & Co. in the sum of $47,872.40 together with damages by way of interest of $16,564.93. The counterclaim by Sinclair & Co. was dismissed. Sinclair & Co. now appeals against the damages so awarded.

Factual background

In 1994 Mr and Mrs Cocks had owned and occupied 40 Monomeath Avenue for approximately 20 years. They decided to sell the property because it had become too large for them. They consulted three real estate agents…

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.

Continue reading G W Sinclair & Co Pty Ltd v Cocks

Details

AGLC: G W Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47
Case: [2001] VSCA 47
Decision Date: 26 April 2001

CaseChat Overview and Summary

The case of G W Sinclair & Co Pty Ltd v Cocks arose in the Federal Court of Australia, where the plaintiff, G W Sinclair & Co Pty Ltd, sought damages against the defendant, Cocks, for losses incurred following a sale of land. The plaintiff claimed that the sale deprived them of a commercial opportunity, and sought compensation for the lost potential profits and the costs incurred in proceedings against a third party.

The primary legal issues for the court to decide were the measure of damages for the loss of a commercial opportunity and whether the costs incurred in proceedings against a third party were recoverable. The court had to determine whether the prospect of benefit from the commercial opportunity was to be established on the balance of probabilities and, if so, how this related to the calculation of the value of the loss. Additionally, the court needed to consider whether the costs of the proceedings against the third party could be included in the damages claimed.

In reaching its decision, the court held that the plaintiff's claim for the loss of a commercial opportunity could only be substantiated if the prospect of benefit was established on the balance of probabilities. The court found that the plaintiff failed to meet this standard, thus limiting the recoverable damages. Furthermore, the court ruled that the costs incurred in proceedings against the third party were not recoverable as damages unless they were directly related to the loss suffered due to the defendant's actions. Based on these findings, the court dismissed the plaintiff's claim for damages.

As a result of the court's decision, the plaintiff was not awarded any damages against the defendant. The court's ruling clarified the criteria for assessing damages for the loss of a commercial opportunity and the conditions under which costs of proceedings against a third party can be recovered.

Orders