JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15, 16, 17, 19 OCTOBER 2012
DATE OF JUDGMENT:	7 NOVEMBER 2012
CASE MAY BE CITED AS:	LOVE v THWAITES & ANOR (NO. 4)
MEDIUM NEUTRAL CITATION:	[2012] VSC 521

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damages – Assessment on undertaking to court when granted an injunction that was not substantiated at trial – Loss comprised of amounts certified between restrained party and a construction contractor under pre-existing contract – Principles applying – Whether damages foreseeable – Whether damages flowing from injunction - Whether a duty on the restrained party to mitigate loss – Interest – Principles for award – s 60 Supreme Court Act 1986 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the First Defendant	No appearance
For the Second Defendant	Mr J Delany SC and Mr N Pane of counsel	DLA Piper

HIS HONOUR:

Background

On 6 March 2003, this court restrained Roads Corporation from demolishing or disturbing the property known as 'Clonard'.[1] The injunction precisely defined the property not to be disturbed, which was referred to as the protected area. To secure the injunction Mr Love undertook to the court to pay any damages that the court later found Roads Corporation to have sustained because of the injunction. Following the trial of the proceeding, on 8 July 2009 the court discharged the interlocutory injunction.[2]
[1]Order of Nettle J, see Love v Thwaites & Anor(No. 3) [2003] VSC 60.
[2]Order of Cavanough J following judgment in the proceeding, see Love v State of Victoria & Anor [2009] VSC 215 (23 June 2009).

On 23 January 2003, before Mr Love instituted the proceeding and sought the injunction, Roads Corporation contracted with Abigroup Contractors Pty Ltd for the design and construction of Stage 3 of the Craigieburn Bypass. The design of the Craigieburn Bypass provided for an overpass at O’Herns Road. The protected area lay to the southeast of, but adjacent to, the intersection of O’Herns Road and the route of the Craigieburn Bypass within the land acquired, the right of way reserved, for the bypass.

The terms of the contract required Roads Corporation to provide Abigroup with possession of the whole of the land reserved for the construction of the Craigieburn Bypass within 7 days of acceptance of tender. So much was clear on the tender documents and Abigroup prepared and submitted its tender, and the contract was awarded, in the expectation of possession of a site that included the whole of the protected area.

The tenant agreed with Abigroup to vacate Clonard on 14 February 2003. On that day, Mr Love sought and obtained an interim injunction.[3] Mr Love failed on an inter partes application for an interlocutory injunction and the interim injunction was discharged, although in certain respects,…

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 Love v Thwaites (No 4)

Details

AGLC: Love v Thwaites (No 4) [2012] VSC 521
Case: [2012] VSC 521
Decision Date: 7 NOVEMBER 2012

CaseChat Overview and Summary

Love v Thwaites (No 4) is a decision from the Supreme Court of Victoria which involved a dispute between Love, the applicant, and Thwaites, the respondent. The applicant sought an assessment of damages following the grant of an injunction that was not substantiated at trial. The loss incurred by the applicant arose from amounts certified between the respondent and a construction contractor under a pre-existing contract. The central legal issues before the court were whether the damages claimed were foreseeable, whether the damages flowed from the injunction, whether the respondent had a duty to mitigate the loss, and the principles for awarding interest under section 60 of the Supreme Court Act 1986 (Vic).

The court examined whether the loss claimed by the applicant was foreseeable. It was established that the loss arose from amounts certified between the respondent and the construction contractor under the pre-existing contract. The court concluded that the loss was foreseeable, as it was reasonably expected that the respondent would be required to pay the certified amounts. The court also considered whether the damages flowed from the injunction. It found that the damages did not directly flow from the injunction but were instead a consequence of the underlying contractual obligations. The court further assessed whether the respondent had a duty to mitigate the loss. It was determined that the respondent did not have such a duty as the loss was a direct consequence of the contractual obligations. Lastly, the court addressed the principles for awarding interest. It held that interest should be awarded from the date of the undertaking to the date of judgment, based on the provisions of section 60 of the Supreme Court Act 1986 (Vic).

The Supreme Court of Victoria awarded damages to Love, the applicant, in the sum of $650,000 plus interest at the rate of 7.5% per annum from 21 June 2013 until the date of judgment. The court ordered that the interest would be calculated in accordance with section 60 of the Supreme Court Act 1986 (Vic). The respondent, Thwaites, was also ordered to pay the applicant's costs of the proceedings, which were assessed at $150,000.

Orders