Gold Coast City Marina Pty Ltd & Ors v Wyzenbeek & Ors
[2020] HCATrans 54
[2020] HCATrans 054
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S350 of 2019
B e t w e e n -
GOLD COAST CITY MARINA PTY LTD ACN 083 695 283
First Applicant
DEAN PARKER LEIGH‑SMITH
Second Applicant
RYAN ANTHONY LEIGH‑SMITH
Third Applicant
and
NORBERT ANDRIES WYZENBEEK
First Respondent
SHARON CARMELLA WYZENBEEK
Second Respondent
EAGLEHAT PTY LTD ACN 002 008 933 AS TRUSTEE FOR THE N&S WYZENBEEK FAMILY TRUST
Third Respondent
CHUBB INSURANCE AUSTRALIA LTD
Fourth Respondent
THE UNDERWRITERS OF LLOYDS SYNDICATE 5000 TRV
Fifth Respondent
AUSTRALASIAN MARINE IMPORTS PTY LTD ACN 083 056 893
Sixth Respondent
Application for special leave to appeal
NETTLE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO SYDNEY
ON FRIDAY, 17 APRIL 2020, AT 12.50 PM
Copyright in the High Court of Australia
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MR T.P. SULLIVAN, QC: May it please the Court, I appear with MR F.G. FORDE for the applicants. (instructed by DWF Australia)
MR A. LEOPOLD, SC: May it please the Court, I appear with MR R.W. CLARK for the first to third respondents. (instructed by Silberstein & Associates)
MR J.S. EMMETT: May it please the Court, I appear with my learned friend, MR C.L.W. STREET, for the fifth respondent. (instructed by Norton Rose Fulbright Australia)
NETTLE J: Thank you. There is no appearance for the sixth respondent, I understand. Mr Sullivan.
MR SULLIVAN: Thank you. Your Honours, central to the proposed appeal is whether in a case involving the operation of section 82 of the Trade Practices Act or section 236 of the Australian Consumer Law, a defendant can prove a counterfactual that demonstrates that a client would have been in a similar economic position if the defendant had not engaged in the misleading and deceptive conduct.
NETTLE J: Do you not face the difficulty that you did not plead and prove the counterfactual?
MR SULLIVAN: In relation to the pleading we did not plead the counterfactual but his Honour, following relevant authority, found that it was a matter which was litigated and one which was open for his Honour to make findings of fact, which he did.
NETTLE J: I read the, whichever it be, Court of Appeal or Full Court saying that it was an inappropriate way to proceed given that the plaintiff was not forewarned by the pleadings that that is the way that you would advance, and therefore was deprived of the ability to get together the sort of evidence that would be needed to rebut it.
MR SULLIVAN: With respect, your Honour, the Full Court did not, in our submission, overrule the finding and conclusion of the learned trial judge in relation to that it was appropriate for him to do it and that he was able to make the findings that he did.
NETTLE J: Yes.
MR SULLIVAN: The consequences of the counterfactual in this case are that they demonstrate the inappropriateness of the application of the “left in hands” approach, that is, the approach of looking at the acquisition cost plus improvements at the start, and subtracting the value of the vessel determined by the depreciation rate as found by the Full Court.
The centrality of the proposition in relation to the counterfactual is that the Full Court in absolute terms rejected the counterfactual as being able to be raised within the statutory context. That can be seen at paragraphs 90 and 92 of the Full Court’s reasons. In doing so, their Honours concluded the Queensland Court of Appeal decision in Jamieson, which was decided in 2016, was plainly wrong.
Their Honours, of course, had to come to that conclusion because Jamieson, in effect, examined this issue as a matter of law and came to the opposite conclusion. In Jamieson what was being considered was section 12AD of the ASIC Act, which equated to 52 of the Trade Practices Act, and section 12GF of the ASIC Act, which equated to section 82 of the Trade Practices Act. So the statutory regime, for all intents and purposes, before the Queensland Court of Appeal, was identical to the section 52, section 82 statutory regime being considered.
The matter of importance obviously to the court, in our submission, is that there currently then are two intermediate appellate courts that have decided in opposite ways the issue as to whether a counterfactual is able to be raised as a matter of law under the statutory regime. It is a matter of importance moving forward. Your Honours have our written submissions in relation to the matter but of ‑ ‑ ‑
NETTLE J: Yes. Accepting for the sake of argument that what you say about the question of principle that arises in this case is right, was there evidence sufficient to establish that the purchase price of the boat that was paid was no greater than the worth of it at the time of purchase? I say that knowing that the judge in a couple of places said he thought it more likely than not, but was there evidence which established that to be the case?
MR SULLIVAN: Can I approach it this way, your Honour. The plaintiff in running its case eschewed any attempt to prove its case applying a Potts v Miller approach. So they in fact led no evidence in relation to seeking to establish the true value of the vessel and, in effect, put all their eggs in the basket of a “left in hands” approach being accepted by the court as an appropriate approach.
NETTLE J: I understand that. The second question I wanted to ask you at a factual level is whether there was any evidence sufficient to maintain the judge’s apparent assumption that the rates of depreciation for the two vessels, the good Marlow and the poor Hampton, would be more or less the same?
MR SULLIVAN: We say yes. I have set those out in my written submissions, the evidence in relation to that, your Honour. In reply, I think I set that out. The evidence which was accepted by the Full Court in relation to the loss of use case, which concerned the downtime of the vessel loss that was under repair and in dock, was the same evidence in relation to the depreciation.
So at application book 281, in paragraph 7 of our submissions, we say it was fairly open on the evidence, and we referred to 255 to 257 of the trial reasons. There is the reference to the evidence, particularly in 255 of Mr Lack, and the evidence upon which the trial judge and subsequently the Full Court ultimately adopted a 6 per cent depreciation rate.
The evidence can be seen, and unfortunately I am not sure that that transcript is before - that is not before your Honours, the transcript I refer to you there and I apologise, I do not know why. The evidence was not that there was a unique depreciation rate for the particular brand of vessel which had been purchased, but there was a range of rates, depending on the age of the vessel and where it was and that provided a proper evidentiary basis for the findings his Honour made in 255 and 258.
NETTLE J: So one is to read that as meaning that the range of rates is the same for vessels of the same age, therefore vessels of the same age have the same rate?
MR SULLIVAN: Yes.
NETTLE J: I see. All right, thank you.
MR SULLIVAN: Well, can I put it this way. There was not a unique depreciation for this type of brand of a vessel. His Honour had the range and his Honour adapted the 6 per cent depreciation rate that he did. That was ultimately adopted then by the Full Court as the basis for that loss of use in the downtime period.
NETTLE J: Well, it is a matter of intuition. One would expect a Mercedes Benz to depreciate at a lesser rate than a long wall, if you know what I mean.
MR SULLIVAN: Well, can I put it this way? The use of these vessels, his Honour elsewhere – and this is dealt with in the submissions – the use of these vessels ‑ if the alternative vessel had been purchased would likely have been of the same nature, and his Honour said it is unlikely it would have been used less than this vessel was used. So we say the depreciation rate, which was a general depreciation rate, not unique to a brand, and was sufficient to establish the finding in favour of the plaintiff, is sufficient to establish for the proposition which his Honour used in relation to the counterfactual.
In effect, it is the existence of the counterfactual and that there would have been a vessel of broadly the same type, broadly the same cost, depreciate at broadly the same rate, which indicates the inappropriateness of the “left in hands” approach.
Now, what his Honour said was a Potts v Miller approach here would have been an appropriate approach to apply and there was simply no attempt to prove a Potts v Miller approach. So they moved to the Astonland approach and if it is appropriate to raise a counterfactual, which his Honour said the way the case was litigated, it was fairly raised and open, and the findings were able to be made to support it, it was the fact that another vessel of the same type, broadly depreciating at the same rate, points to why the “left in hands” approach is inappropriate.
Testing it this way, ultimately the plaintiffs in this case had the use of the vessel for seven and a half years whilst it was depreciating, which it always was going to depreciate, so this was not in effect an asset which was to keep its value and increase in value, it was not an asset which was a business which was going to earn an income and hopefully increase in value, it was an asset which was always going to depreciate in value.
His Honour referred to it, accepting what counsel for the defendant said at the time, it was always a loss‑making asset. On the counterfactual, they always would have acquired another loss‑making asset with the broad features that his Honour described. So, looking at the depreciation which occurs here, that depreciation would have inevitably occurred with the other vessel. So that depreciation does not equate to the claimant suffering loss by the conduct. The way that the learned trial judge explained it, that is independent, it is extraneous to loss by the conduct.
So, having made for their own reasons the forensic decision not to pursue a Potts v Miller approach to proving their loss, with the greatest respect it is submitted that it is not appropriate to move to a “left in hands” approach simply to fill that gap if that approach is inappropriate in the circumstances in light of the counterfactual which shows that it is inappropriate and it does not, we would say, represent loss by the conduct.
I should mention, going back to your Honour Justice Nettle’s ‑ you asked me about the evidence in relation to the counterfactual at application book 202, paragraph 64 of the Full Court, the last three lines of that paragraph, of course, referring to the fact that it was opened in the Wyzenbeeks’ case, Mr Wyzenbeek and Mrs Wyzenbeek’s case, that there was a counterfactual, that there was cross‑examination in relation to the matter “without objection” and the reference there to ourselves:
The respondents submitted that (what in our view was obvious and common sense) evidence created the need for the primary judge to analyse the case as a “different transaction”, rather than a “no transaction”, case.
In terms of the evidence that was necessary, the learned trial judge clearly had that in mind when he made his findings. He referred to both the Court of Appeal in Queensland and also to Yam Seng and the decision of
Justice Leggatt in relation to proving up the counterfactual in the relevant case.
NETTLE J: Thank you.
MR SULLIVAN: Unless there was anything further on that issue.
NETTLE J: Thank you, Mr Sullivan.
MR SULLIVAN: Thank you.
NETTLE J: Mr Leopold.
MR LEOPOLD: If it please the Court. Your Honours, if our learned friends want to rely on a counterfactual, they must prove that the Wyzenbeeks would have been in the same overall economic position if they had bought a Marlow as the position they were in fact in. It is not enough to focus just on depreciation.
The argument, for example, overlooks the fact that if they had bought a Marlow they would have had an oceangoing vessel for the entire seven and a half years between acquisition and judgment, whereas of course what they in fact had was a vessel which over that entire period was not suitable for the very purpose for which acquired it, which was ocean crossings so that they could circumnavigate the globe together. That is a point the Full Court made at 216, lines 50 to 60. The Full Court was right to say ‑ ‑ ‑
NETTLE J: Could I just ask you, you would accept then that, had the pleadings been appropriate and the evidence been adduced, it would have been open to the defendant to prove the counterfactual upon which it now seeks to rely?
MR LEOPOLD: No, we would say the Full Court was right to uphold that that is not open as a matter of the proper construction of the text and purpose of sections 52 and 87 and 4K of the Trade Practices Act. It would not have been open for them to do that.
Justice Hayne said so in Henville at paragraph 62 and the decision in Westpac v Jamieson did not distinguish between causes of action in contract, tort and misleading conduct and throughout the analysis – and we will take your Honours to it briefly in a few moments – merged all three causes of action before concluding that Yam Seng could be followed, but without any consideration of the text or purpose of the Trade Practices Act which in a series of cases decided by this Court, including I & L Securities, Murphy v Overton and Henville said otherwise, because at bottom line, whether or not one would have entered into a counterfactual position is just another cause and it has always been said by this Court that other causes of the loss or damage just do not matter. So our answer to that question, your Honour, is no.
GORDON J: Mr Sullivan, would you mind not flicking your pages in front of your microphone because it is causing us to have difficulties hearing.
MR SULLIVAN: I am sorry, your Honour.
NETTLE J: Mr Leopold, there is then, is there, a question of principle of some importance as to whether it is permissible, pleadings and evidence being appropriate, to assess damages for misleading and deceptive conduct by reference to a proved counterfactual?
MR LEOPOLD: Well, we say there is not really a point of principle there, with respect, because Westpac v Jamieson was in effect decided per incuriam by not looking at the High Court line of authority and by not looking at the text or purpose of the Act. But we say in any event that this is not a suitable vehicle for deciding that question because there are particular questions about the overall economic position which the Wyzenbeeks would have been in if they had bought a Marlow and that involves, for example, the fact that they had – it would have been a far more superior…..by having the very thing they wanted for seven and a half years, whereas they did not, and a number of other financial outcomes, such as the fact that from this particular vendor they got a trade‑in price for their trade‑in vessel, Swanky, of $1 million.
There was no evidence whatsoever, because the parties were not truly litigating this point, as to what trade‑in value might have been offered by the vendor of a Marlow – whether $1 million was super‑generous, or average, or not - what the respective warranties were of the two competing vessels. We know it was only one-year warranty for the acquisition of the Hampton vessel. There was no evidence as to what the warranty would have been on a Marlow. Nor was there any evidence about the competing cost of replacement or maintenance work on the two vessels.
Taking the example of your Honour Justice Nettle, a Mercedes Benz costs a lot more to maintain and to repair, just by way of standard repairs and maintenance, than does a basic vehicle. So there are a range of financial outcomes, which is something – and we did want to say that having the benefit of an oceangoing vessel, which is the fundamental thing that they wanted for that seven and a half years, if they bought a Marlow, has a financial value.
The Full Court correctly held that it did have a financial value at page 215, line 47. It does have a financial value, because it is something that people will pay for and that proposition is made good by the primary judge’s unchallenged finding at page 51, lines 40 to 42, that it was “a selling point” for the vessel that it was oceangoing. So whereas our learned friends focus only on depreciation, they overlook that they would have had a Marlow which had that extra financial value generated by that selling point, being an oceangoing vessel, the very thing they wanted.
There was no evidence, because the parties were not embracing the point and did not truly litigate it, as to what the other financial outcomes were. The Full Court correctly made the point at page 213, line 20, as to the need to look at what the financial outcomes are in assessing damages for misleading conduct under the Trade Practices Act so as to look at how much worse off the financial outcomes were for the plaintiff on the situation they in fact find themself in, versus where they would have been if they had not embarked on the transaction.
Now, we complained to the Full Court about the fact that it was not litigated. Our learned friend, Mr Sullivan, said that there was - we opened on there being a counterfactual. What the senior counsel who appeared at the trial said was that at a level of generality we would have bought a Marlow, is what he said, but that is just a signal that, as the primary judge held in his first judgment, which is not in the book, but it is [2017] FCA 1460, at paragraph 83, he actually held, his Honour held, that we only pleaded a no transaction case, we did not raise a different transaction.
A plaintiff only raises a different transaction if they want to pursue a loss of opportunity case. It was quite clear we were not raising a loss of opportunity case. The defendants, the Marina parties, never at any point suggested that they were running a counterfactual which would have alerted us to the need to gather all the evidence necessary to compare the two sets of financial outcomes. It was not litigated, and that would certainly be the subject of a notice of contention if leave were to be granted.
Another reason why, as a point of principle, this is not a suitable vehicle for determination of that point of principle is that the Full Court emphasised that in this particular case it is in the Astonland category because the Full Court said at pages 201, lines 40 to 41 and 220, lines 28 to 30, that the Marina parties never suggested, let alone proved, that it was unreasonable for the Wyzenbeeks to have acted as they did by failing to sell the vessel and retaining it right through to trial. That was pages 201 and 220.
Now, that reflected the obvious proposition that it was the Marina parties who bore the onus of proving any fact relied upon by way of mitigation of damage. It was because the Marina parties ‑ ‑ ‑
GORDON J: Sorry, Mr Leopold, I thought the findings were that they had tried to sell it and could not?
MR LEOPOLD: They tried to sell it for a period of about 15 months and could not, but the court held that it was not unreasonable in all the circumstances, including that circumstance, that they retained it through to trial. That was one of the circumstances. It ought to have been suggested, and they ought to have run and pleaded a case of mitigation if they wanted to say that it was unreasonable, and the Full Court made the point that that was not pleaded, and that was not proved, and clearly it fell to the Marina parties to do that if they wanted to say that it ought to have been disposed of at an earlier time.
Now, the proposition of the Marina parties is that there is overcompensation because the vessel was used after and depreciated after that Port Macquarie incident in October 2012. But that proposition must be untenable on the particular facts of this case, in the face of the Full Court’s observation that the Marina parties did not show that it was unreasonable to retain the vessel right through to trial. It is a bit like the situation in Astonland where the plaza was retained through to trial but there were not attempts even to sell the plaza in that case.
Given that it was a not unreasonable consequence of being misled that the Wyzenbeeks incurred that seven and a half years of depreciation, then to award them damages for that diminution in value cannot, we say, be characterised in the circumstances of this case as overcompensation and that particular fact in this case is we say a critical one as to why this would not be an appropriate vehicle for determining any point of principle that there is.
Even on the principles stated by the primary judge at page 91, lines 30 to 45, this would be so because his Honour there said after referring to Smith New Court Securities - his Honour gave an example of a claimant who was misled into purchasing a franchise and said that compensation would be awarded for the:
diminution in the claimant’s economic position . . . until it is no longer reasonable for the claimant to remain in possession of the [franchise] business.
So even on the primary judge’s approach, applying what the Full Court said about it being not unreasonable to hold the vessel through to trial, this, the applicants – the Wyzenbeeks were entitled to succeed on the basis they did in the Full Court and there is no proper point of principle – there is no ‑ it is not an appropriate vehicle for determining a point of principle.
It becomes an orthodox application of the “left in hands” approach in Astonland, which the Court in Astonland at paragraph 65 held was an approach to compensation for misleading conduct which was certainly open, that is to deduct the depreciated value of the vessel from the purchase price.
We put a submission, your Honours will have seen in paragraph 22 on page 269, that the approach contended for by the Marina parties would in fact lead to under‑compensation. That is because if leave were to be granted and an appeal allowed, what would be substituted for the loss of value award would be that loss of use award which covered under two years. We would not be receiving any compensation at all for the other five and a half years during which the vessel was held. That is, no compensation for five and a half years when they had something that they did not want and did not fulfil the fundamental purpose of the acquisition of the vessel.
The second thing we deal with in paragraph 22 of our response, which is in 22(e) to (j), is that after taking seven and a half years to establish the fact over all the denials of the Marina parties that it was not suitable for ocean crossings, what the Wyzenbeeks were left with was a vessel which had a value of only $2.7 million as found by the Full Court at paragraph 128 on page 224 which is an unchallenged finding in this Court.
Assuming that the Wyzenbeeks could realise $2.7 million by selling this vessel, ignoring the fact that there would be some sort of brokerage fee, one would think, that would have to be deducted, then they would need $1.4 million in compensation plus interest to restore them to the position they would have been in had they not been misled, that is, a total in their hands of $4.1 million plus interest to spend on a vessel that they have always wanted, suitable for ocean crossings.
But if they do not get that $1.4 million in compensation, and they only get the smaller loss of use award, then all they would have at their disposal to purchase a vessel for ocean crossings, of which they have not yet had the benefit, would be a vessel worth around $1.4 million less than they parted with nine years ago in April 2011, which would obviously leave them with under‑compensation, something insufficient to buy an equivalent vessel which is suitable for ocean crossings, another demonstration that this is not a suitable vehicle for the determination of any point of principle there is in the counterfactual argument.
Fifthly, the Full Court, in saying that the counterfactual argument just was not open was correct to apply a line of authority, in paragraphs 67 to 76 starting at page 203, and 90 to 93 starting at page 211, I & L Securities, Murphy v Overton, et cetera, as to why the existence of other causes just do not matter and to the list which was set out by the Full Federal Court can be added Henville 206 CLR 459, where at paragraph 76, Justice McHugh had pointed out that but for the misleading conduct, Mr Henville would not have proceeded with the project he did in fact undertake.
Now, there was no express finding regarding the pursuing or not pursuing of an alternative project. But it is quite clear that another property would have been bought, if the one Mr Henville bought was not, or if the project that he embarked on was not, because Justice McHugh pointed out at paragraph 80 that Mr Henville was looking at a number of properties with a view to “purchasing one of them”. So quite clear that this would have involved an alternative transaction.
At paragraphs 94 and 150, Justice McHugh with whom Justice Gummow and Hayne agreed, said that Mr Henville was entitled to every dollar he spent on every item of cost outlaid on the project, including:
bank charges, government duties and interest on borrowings –
Now, those three heads of loss obviously would have been incurred by him in the alternative transaction that he would have inevitably entered into and Justice McHugh was plainly treating the inevitable counterfactual as quite irrelevant.
Justice Hayne, with whom Justice Gummow agreed, made that absolutely explicit at paragraph 162, if your Honours have Henville 206 CLR 459 there. At 162, Justice Hayne, in the first sentence referred to the comparison between the position Mr Henville found himself in versus the position he would have been in if he had not:
undertaken the project.
Then, tellingly, his Honour said:
It does not invite attention to what would have been their position if an accurate estimate of selling price had been given by the respondents. Moreover, the conclusion that the appellants suffered loss either requires nor permits consideration of some third or intermediate position in which the appellants undertook some project or transaction other than the one they did. It is, therefore, not relevant to consider what the loss might have been if costs had been estimated properly.
Contrary argument by our learned friends on appeal to this Court has insufficient prospects of success in the face of the authorities referred to by the Full Court at the paragraphs we have already mentioned, including I & L, Murphy v Overton and one can add Henville, particularly the passage in the reasons of Justice Hayne.
If one goes to Westpac v Jamieson, one sees what we already referred to, which is that it is a decision that turned on analysis which merged principles of damages for breach of contract, tort and damages for misleading conduct. No consideration of the text or the statutory purpose of these statutory provisions under consideration here; no consideration of the line of authority referred to in the Full Court or of the decision in Henville.
Can we just briefly take your Honours to the decision in [2016] 1 Qd R and take your Honours to 143 and following and show your Honours this merged consideration without any distinct consideration of the provisions is at 143, line 3l; 144, the third to sixth lines; page 544, the next page in the fourth line, footnote 58 in the discussion of the “no transaction” cases. The footnote is to a decision of the House of Lords in Banque Bruxelles which was a decision on tort and contract.
Back to paragraph 147, the fourth and eighth lines, merges negligence and misleading conduct. The same with paragraph 148, the second, fifth and sixth lines. Paragraph 149, the first and sixth lines were said to be by parity of reasoning from the object of damages in tort and that was the key conclusion in the case:
By parity of reasoning, it should be open to a defendant -
At the end of 151, his Honour Justice Applegarth in the leading judgment applied Clef Aquitaine, which was a deceit case, and then in 152 applied Yam Seng, which was a decision on section 2 of the UK Misrepresentation Act 1967, which bore no resemblance to section 52. Westpac is just not authority on the point. It is per incuriam and that is another reason why - a grant of special leave would be for an appeal which does not have sufficient prospects of success.
Lastly, we refer again to paragraph 34 of our response. If special leave were to be granted it should not extend to the indemnity costs order made by the Full Court at page 234, line 10 because that was an indemnity costs order for the costs of the trial, made because of the regrettable way that the Marina parties ran the trial.
It had nothing to do with the amount of damages awarded - see the Full Court’s cost judgment at application book 236 to 237, paragraphs 8 to 9, and there is no suggestion that that exercise of discretion in any way miscarried. That should not be the subject of any grant of special leave which is made. Overall, it is a fact‑intensive matter turning on its own particular facts, and it is not a suitable vehicle for special leave. May it please the Court.
NETTLE J: Thank you. Mr Emmett.
MR EMMETT: Nothing from the fifth respondent, your Honours.
NETTLE J: Thank you, Mr Emmett. Mr Sullivan, anything in reply?
MR SULLIVAN: Thank you. Just briefly, your Honour. In relation to the trial judge, the trial judge did not find that there was a financial value to it being an oceangoing vessel. The relevant part of the judgment which deals with that is paragraph 249. Whilst the Full Court did say that there was some financial value to the Wyzenbeeks in relation to it being oceangoing, that was in the context of, we would say, the reliance issue.
There was no finding that it was, as a matter of generality, something which affected the financial value of the boat as opposed to a coastal‑going boat, which is the comparison his Honour the trial judge made at 249. In relation to overcompensation, if I can put it this way, after having seven and a half years of use of the vessel all compensation for the period when it was not being used, because they have been compensated for that, the award of damages, in effect, puts Mr and Mrs Wyzenbeek in the financial position to buy an entirely new vessel.
If the counterfactual is appropriately able to be raised it demonstrates the fallacy, and that is the language that the trial judge used, of that approach because if the other vessel had been bought after seven and a half years of use it would have been depreciated in broadly a similar way. So what is said to be the loss by the conduct, which is simply the depreciation of the purchase and improvement price over a point in time, is something which would always have occurred, whichever vessel had been purchased.
So it does not reflect, in effect, loss or damage by the conduct, and as even the appellate court observed in their reasons when they were dealing with the loss of – at the back end with the loss of use, the interest that has been talked about here and the kind of interest and loss is an economic interest. So that is at 116 of the Full Court’s decision.
So it is one which is not about compensating for a perceived loss of enjoyment in the seven and a half years about not being able to use this
vessel to go overseas, albeit in the first two years it was used to go overseas to New Caledonia and Papua New Guinea. It is the economic cost and the Potts v Miller approach is the one which appropriately, if it had been pursued, would have looked at that economic loss, but it was not. The “left in hands” approach is inapposite to look at that economic lost interest. Those are my submissions, thank you.
NETTLE J: Thank you, Mr Sullivan.
Despite the question of principle identified by the applicant as to whether it is open as a matter of law to assess damages for misleading and deceptive conduct by reference to a pleaded and proved counterfactual, the Court is not persuaded that the pleadings and evidence below are such as to render this an appropriate vehicle for the grant of special leave. Accordingly, the application is dismissed.
You seek costs, I assume, Mr Leopold?
MR LEOPOLD: Yes, your Honours.
NETTLE J: The application is dismissed with costs. Thank you, gentlemen.
Adjourn the Court, please, to 9.30 am on Wednesday, 22 April in Canberra.
AT 1.30 PM THE MATTER WAS CONCLUDED
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