Keeley v Horton

The appeal before the court concerned the adequacy of the damages awarded to the Keeleys following the Hortons' breach of warranty. The court was also required to consider whether leave to appeal was necessary and, if so, from which court. The first appellants, Mr and Mrs Keeley, were successful in their appeal against the damages awarded for the breach of warranty related to the loss of the Hy-Drive distributorship. The primary judge had awarded nominal damages of $100 to the Keeleys, finding that they had suffered no actual loss as a result of the Hortons' failure to disclose the distributorship loss. The court found this assessment of damages to be inadequate.

In assessing the adequacy of the damages, the court considered the evidence provided by the expert witness, Mr Williams, who had valued the business and the impact of the distributorship loss on that valuation. Mr Williams' evidence indicated that the loss of the distributorship resulted in a decrease in the value of the business by $98,000. The court held that the primary judge erred in finding that the Keeleys had suffered no actual loss and that the award of nominal damages was inadequate. The court varied the damages award from $100 to $96,367, the amount representing the loss suffered by the Keeleys due to the Hortons' breach of warranty.

Regarding the costs, the court set aside the orders made by the primary judge, finding that the costs orders were not appropriate in the circumstances of the case. The court granted leave to appeal to the first appellants and refused the second appellant's application for leave to appeal. The parties were directed to file written submissions on the interest to be awarded on the varied judgment amount, the costs of the trial, and the costs of the applications for leave to appeal and the appeal.