Love v Thwaites

[2014] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0225
THOMAS JAMES LOVE	Appellant
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES and	First Respondent
ROADS CORPORATION	Second Respondent

---

JUDGES:

WARREN CJ and TATE and BEACH JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

25 March 2014

DATE OF JUDGMENT:

4 April 2014

MEDIUM NEUTRAL CITATION:

[2014] VSCA 56

JUDGMENT APPEALED FROM:

Love v Thwaites & Anor (No. 4)

[2012] VSC 521 (Dixon J)

---

INJUNCTION – Undertaking as to damages – Assessment of damages – Whether damage of a type or character that was reasonably foreseeable – Principles applying to assessment – Mitigation.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	No appearance
For the Second Respondent	Mr J Delany SC with Mr R D Williams	DLA Piper

WARREN CJ

BEACH JA:

Introduction

1. On 6 March 2003, a judge of the Trial Division granted an interlocutory injunction restraining the Roads Corporation, the respondent,[1] from demolishing or disturbing a property known as Clonard.  The injunction defined with precision the land and property to which it applied (‘the protected area’).  In order to obtain the injunction, Mr Thomas James Love, the appellant, gave the usual undertaking as to damages.[2]

   [1]While the court documents name two defendants to the proceeding below and two respondents to this appeal (The Honourable Johnstone William Thwaites and the Roads Corporation), the named first defendant/first respondent took no part in the assessment of damages below or in this appeal.

   [2]The usual undertaking being ‘to abide by any order the Court may make as to damages in case the Court shall hereafter be of opinion that the defendant shall have sustained any, by reason of this order, which the plaintiff ought to pay’.

1. On 23 June 2009, the appellant’s proceeding was dismissed.  On 8 July 2009, the interlocutory injunction was discharged.  Following the discharge of the interlocutory injunction, a judge of the Trial Division directed that there be an assessment of the respondent’s damages incurred as a result of the injunction.

1. The assessment of the respondent’s damages was heard by a judge in the Trial Division over four days in October 2012.  On 14 November 2012, the judge ordered the appellant to pay the respondent damages assessed in the amount of $3,420,389.70 together with interest in the amount of $2,427,258.47.

1. The appellant has appealed the orders made on 14 November 2012.  The appellant’s grounds of appeal are as follows:

1.That the trial judge erred in law in accepting the evidence of Mr Robert Milner but then made a finding contrary to the evidence that the Appellant was liable for all loss relevant to the design and delay costs with respect to the O’Herns Road Overpass.

2.That the trial judge erred in law in finding that the Appellant foresaw damages flowing from the injunction in March 2003.

3.That the trial judge erred in law in failing to take into account the fact that the road between the southern bound carriageway of the Craigieburn Bypass and…