Kronenberg v Bridge (No 2) - [2015] TASFC 9

[2015] TASFC 9

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Kronenberg v Bridge (No 2) [2015] TASFC 9

PARTIES:  KRONENBERG, David Gerald
  KRONENBERG, Robyn Joy
  v
  BRIDGE, Stephen

FILE NO: 1045/2013
JUDGMENT

APPEALED FROM: Kronenberg v Bridge [2013] TASSC 57

DELIVERED ON:  23 July 2015
DELIVERED AT:  Hobart
HEARING DATE:  19 December 2014
JUDGMENT OF:  Blow CJ, Porter and Pearce JJ

CATCHWORDS:

Damages – General principles – General and special damages – Special damages by way of interest – Compensation for delay in obtaining payment of assessed damages – Assessment of loss – Award based on compound interest – Misleading and deceptive conduct resulting in increased borrowings.

Fair Trading Act 1990 (Tas), s 37.
Hungerfords v Walker (1989) 171 CLR 125; State of Tasmania v Shaw (No 2) (2002) 12 Tas R 1, referred to.
Aust Dig Damages [1]

REPRESENTATION:

Counsel:
           Appellants:  S B McElwaine SC
           Respondent:  A Buckley
Solicitors:
           Appellant:  Shaun McElwaine + Associates
           Respondent:  Toomey Manning & Co

Judgment Number: [2015] TASFC 9
Number of paragraphs: 10

Serial No 9/2015
File No 1045/2013

DAVID GERALD KRONENBERG and ROBYN JOY KRONENBERG
v STEPHEN BRIDGE (No 2)

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
PORTER J
PEARCE J
23 July 2015

Orders of the Court (19 December 2014)

Appeal allowed.

Judgment entered on 4 October 2013 set aside.

Determination made on 4 October 2013 in respect of the counterclaim of the respondent quashed.

Judgment for the appellants against the respondent in the action in the sum of $299,899.88.

Order that the respondent repay to the appellants $37,962 plus interest thereon in the sum of $2,047.77.

Respondent to pay the costs of the appellants of the action and of the counterclaim, taxed as between party and party to 10 August 2012, and taxed as between solicitor and client from 10 August 2012.

Respondent to pay the appellants' costs of the appeal.

Respondent granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1968.

Serial No 9/2015
File No 1045/2013

DAVID GERALD KRONENBERG and ROBYN JOY KRONENBERG
v STEPHEN BRIDGE (No 2)

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
PORTER J
PEARCE J
23 July 2015

This Court made final orders disposing of this appeal on 19 December 2014. These are our reasons for one of the orders that we made on that day. The only point in controversy on that day concerned the entitlement of the appellants to damages in the nature of interest in accordance with Hungerfords v Walker (1989) 171 CLR 125. The appellants contended that they were entitled to compound interest, but the respondent conceded only an entitlement to simple interest.
The respondent is a builder. He entered into a contract to build a house for the appellants. A dispute arose. The appellants sued him. The case went to trial. Tennent J dismissed the action: Kronenberg v Bridge [2013] TASSC 57. The appellants appealed. On 20 October 2014, this Court concluded that the appellants were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kronenberg v Bridge (No 2)

Details

AGLC: Kronenberg v Bridge (No 2) [2015] TASFC 9
Case: [2015] TASFC 9
Decision Date: 23 July 2015

CaseChat Overview and Summary

The appellants, Kronenberg, appealed to the Full Court of the Supreme Court of South Australia against a judgment entered in favour of the respondent, Bridge, in an action concerning misleading and deceptive conduct. The dispute involved the assessment of damages arising from this conduct, specifically relating to increased borrowings incurred by the appellants.

The central legal issues before the Full Court were the appropriate method for assessing compensation for the delay in obtaining payment of assessed damages, and whether the award should be based on compound interest. The court was required to determine how to compensate the appellants for the financial loss incurred due to the respondent's conduct, which resulted in the appellants having to borrow money to cover their losses.

The Full Court allowed the appeal, setting aside the previous judgment and quashing the determination made on the counterclaim. The court entered judgment for the appellants against the respondent for the sum of $299,899.88. Furthermore, the respondent was ordered to repay $37,962 to the appellants, with interest of $2,047.77. The respondent was also ordered to pay the appellants' costs of the action and counterclaim, with a distinction in the basis of taxation from 10 August 2012, and to pay the appellants' costs of the appeal, being granted an indemnity certificate.

Orders

Orders of the court

1. Appeal allowed.

2. Judgment entered on 4 October 2013 set aside.

3. Determination made on 4 October 2013 in respect of the counterclaim of the respondent quashed.

4. Judgment for the appellants against the respondent in the action in the sum of $299,899.88.

5. Order that the respondent repay to the appellants $37,962 plus interest thereon in the sum of $2,047.77.

6. Respondent to pay the costs of the appellants of the action and of the counterclaim, taxed as between party and party to 10 August 2012, and taxed as between solicitor and client from 10 August 2012.

7. Respondent to pay the appellants' costs of the appeal.

8. Respondent granted an indemnity certificate pursuant to the Appeal Costs Fund Act 1968.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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