JUDGMENT No.
IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) 1 ) GENERAL DIVISION )
BETWEEN: KEWSIDE PTY LTD
Applicant
AND: WARMAN INTERNATIONAL LIMITED
Respondent
CORAM: NORTHROP, WILCOX AND HILL JJ.
PLACE: PERTH
DATED: 4 MAY 1990
EX TEMPORE REASONS FOR JUDGMENT
The appellant, Kewside Pty Ltd, which was the applicant in the proceedings below, appeals against the assessment of damages made by the learned trlal judge, French J, in an application based upon s.52 of the Trade Practices Act, 1974. The learned trial judge found liability to have been established and the respondent does not challenge the findlngs on this issue.
Briefly, his Honour held that the respondent had made certaln representations to the appellant concerning a compressor which was intended for use by the appellant in drilling operations to be conducted by it in country areas which representations went to the number of hours of use which the
alia, in Malaysia. The relevance of the latter representations
compressor had had and whether it had been used overseas, inter
was that use in Malaysia indicated not only a higher number of hours worked by the machine but also that it may have been misused. The representations were false.
Based upon the representations the appellant purchased the compressor and had it installed upon a drilling rlg by the respondent which also performed some upgrading work. The respondent's charges for performing this work were $49,365.42 and were never paid by the appellant. The respondent cross-claimed successfully for the recovery of this amount and the appellant (the respondent to the cross-claim) appeals also against the decision on the cross-claim.
At the heart of the major issue is the approach taken by his Honour to the appellant's claim for damages which were based relevantly on three clalms llsted in schedules. The first (Schedule 1) was a claim for items said to have been purchased by the appellant and when its business failed disposed of by the appellant or rendered useless. Many of the items formed part of a security held by a flnance company and were disposed of by that
company pursuant to its security. The second (Schedule 4) involved a claim for the loss of opportunity to earn a profit in the period 14 May 1986 to 15 December 1987. The Schedule calculated that loss at $315,631. The third claim (Schedule 3) involved a claim for the loss in fact suffered by the appellant in its period of trading from 14 May 1986 to 18 August 1986. That loss was claimed as $24,715.03.
It is convenient to deal first with the most substantial
claim, being that for the loss of opportunity to make a profit
(Schedule 4) . His Honour was of the view that the lost opportunity was compensable. The facts which his Honour regarded as relevant in the assessment of damages and the way in which he approached the task can be seen from the following passages in his Honour's judgment:
"Kewsidets decision t o acquire the…
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- Case
- [1990] FCA 219
- Decision Date
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