JKAM Investments Pty Ltd v Damien (No. 2)

JKAM Investments Pty Ltd commenced proceedings against Damien, seeking relief in relation to alleged misleading and deceptive conduct and seeking indemnity under a mortgage. The dispute was heard before the court, which first determined issues of liability and then damages. The plaintiff was partially successful in their claims, but questions remained about the extent of the defendant's liability for damages and the specific costs and expenses recoverable under the mortgage indemnity clause.

The court was required to determine whether all of the plaintiff's damages were attributable to the defendant's misleading and deceptive conduct. Additionally, the court needed to decide which particular legal costs and expenses were recoverable under the indemnity clause of the mortgage. The court also had to consider the appropriate costs orders in light of the partial success of the plaintiff in both the liability and damages hearings.

The court found that not all of the plaintiff's damages were caused by the defendant's misleading and deceptive conduct. As such, the plaintiff's recovery was limited to those damages that could be directly attributed to the defendant's actions. Regarding the indemnity claim, the court held that the damages hearing was not an appropriate forum for determining extensive indemnity claims that had not been adequately pleaded or specifically determined during the liability hearing. Consequently, the court limited the recoverable costs and expenses to those that had been sufficiently pleaded and considered during the earlier stages of the proceedings.

The court ordered that the plaintiff recover damages limited to those caused by the defendant's conduct, and made a specific costs order for the damages hearing. The court also determined that certain legal costs and expenses were recoverable under the mortgage indemnity clause, but only those that had been adequately pleaded and considered during the liability hearing. The court emphasised the importance of proper pleading and the limitations on the scope of claims that can be determined in a damages hearing.