Harvard Nominees Pty Ltd v Tiller

The appeal in Harvard Nominees Pty Ltd v Tiller was heard by the Full Court of the Federal Court of Australia. The dispute involved claims of misleading or deceptive conduct by the respondents, leading to the appellant entering into a series of pastoral leases. The appellant sought statutory rescission under section 243 of the Australian Consumer Law (ACL) due to alleged misleading conduct. The primary judge had found against the appellant on the issue of loss or damage, which was critical for the grant of relief under sections 236 and 237 of the ACL. The appeal was primarily concerned with whether the primary judge correctly assessed the loss or damage suffered by the appellant and the applicability of rescission in equity and under the ACL.

The central legal issues before the court were whether the appellant had suffered or was likely to suffer loss or damage due to the misleading conduct, and if so, what form that loss or damage took. The court also had to consider the differences between rescission at common law and in equity and how these principles applied to the statutory relief under the ACL. The primary judge had ruled that the appellant would not have entered into the leases but for the misleading conduct, but had not found that the appellant had suffered loss or damage as required by section 237 of the ACL. The appeal challenged this finding, arguing that the detriment of being bound by the leases constituted sufficient loss or damage.

The court found that the primary judge's conclusion that the appellant would not have entered into the leases but for the misleading conduct was sufficient to establish that the appellant had suffered or was likely to suffer loss or damage within the meaning of section 237(1)(a) of the ACL. This was because the appellant would not have contracted with Mr Nicoletti due to personal animosities and a perception that Mr Nicoletti would benefit unfairly from the low rent. This reasoning aligned with previous cases such as Marks and Wardley, which held that loss or damage is not confined to economic loss but can include other forms of prejudice or disadvantage. The court disagreed with the primary judge's assessment that the appellant had not suffered loss or damage and held that the appeal should be allowed on this basis. The matter was remitted to the primary judge to determine the appropriate relief under the ACL and to address any costs issues.

The court ordered that the appeal be allowed, and specific orders made by the primary judge were set aside. The matter was remitted to the primary judge to determine what, if any, relief should be granted under sections 236 and 237 of the ACL, as well as any costs related to the proceedings. The respondents were ordered to pay the appellant's costs of and incidental to this appeal.