Gold Coast City Marina Pty Ltd & Ors v Wyzenbeek & Ors

This matter concerns an application for special leave to appeal to the High Court of Australia, brought by Gold Coast City Marina Pty Ltd and others (applicants), against Norbert Andries Wyzenbeek and others (respondents). The dispute centres on the assessment of damages for misleading and deceptive conduct under the Australian Consumer Law. The applicants sought to argue that a defendant can prove a counterfactual scenario to demonstrate that a plaintiff would have been in a similar economic position had the misleading conduct not occurred, thereby limiting their liability.

The core legal issue before the High Court was whether, in proceedings under section 82 of the *Trade Practices Act 1974* (Cth) or its equivalent in the Australian Consumer Law, a defendant is permitted to raise and prove a counterfactual to establish that the plaintiff would not have suffered loss. This involved considering whether such an approach was legally permissible and, if so, whether the evidence adduced in the present case was sufficient to establish the necessary factual findings for such a counterfactual. The applicants contended that the Full Court had erred by rejecting the counterfactual as a matter of law, contrary to previous intermediate appellate court decisions.

The applicants argued that the "left in hands" approach to damages, which calculates loss by subtracting the depreciated value of an asset from its acquisition cost plus improvements, was inappropriate in this case due to the existence of a viable counterfactual. They submitted that the Full Court's absolute rejection of the counterfactual was erroneous and that the trial judge had made sufficient findings of fact, based on evidence of general depreciation rates, to support the counterfactual. Conversely, the respondents argued that the Full Court was correct in its determination, asserting that the applicants' counterfactual argument was not properly litigated, lacked sufficient evidence regarding overall economic position, and that the *Trade Practices Act* and its purpose did not permit such an assessment of damages in this context. They further contended that the applicants' approach focused solely on depreciation and overlooked other financial benefits and costs associated with the alternative transaction.