McColl JA at 1; Campbell JA at 142; Handley AJA at 143
DECISION:
1. Appeal allowed with costs. 2. Order that order 1 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the respondents have judgment in the sum of $152,691.97 together with interest thereon from 20 March 2009 in accordance with section 101 of the Civil Procedure Act 2005 (NSW). 3. Order that order 2 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the appellants pay the respondents’ costs in the Court below as agreed or assessed on the ordinary basis other than those costs incurred by the respondents in relation to the award of damages in the amount of $22,694 for the decrease in the respondents’ party-party costs. 4. Cross-appeal dismissed with costs.
CATCHWORDS:
CONTRACT – breach – damages – time for assessment – relevance of post-breach events - TORT – breach of duty of care – damages – time for assessment – relevance of post-breach events - FIDUCIARY DUTY – breach – equitable compensation – time of determination of quantum - DAMAGES – contract – tort – breach of fiduciary duty – whether innocent party entitled to choose most advantageous remedy - CONTRACT – breach – damages – deprivation of opportunity – standard of proof applicable where innocent party seeks to establish future possibilities and past hypothetical situations - CONTRACT – breach – damages – where evidence called by innocent party fails to provide rational foundation for proper estimate of damages - EVIDENCE – admissibility of evidence from innocent party as to conduct if breach of contract had not occurred – s 5D Civil Liability Act 2002 (NSW) - PROCEDURE – notice of appeal – status of amended notice of appeal filed without leave after judgment reserved - PROCEDURE – submissions – where limited leave granted to submit further submissions on certain points after judgment reserved – where further submissions exceed scope of leave granted without further leave applied for or given
[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.
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Details
AGLC
McCrohon v Harith [2010] NSWCA 67
Case
[2010] NSWCA 67
Decision Date
CaseChat Overview and Summary
McCrohon and others (the appellants) appealed to the New South Wales Court of Appeal against orders made by Smart AJ in the Supreme Court of New South Wales. The dispute concerned the assessment of damages for breach of contract, breach of duty of care, and breach of fiduciary duty. The respondents sought to recover compensation for losses allegedly suffered as a result of the appellants' conduct.
The Court of Appeal was required to determine several key legal issues. These included the appropriate time for assessing damages in cases of breach of contract, tort, and fiduciary duty, and the relevance of events occurring after the breach. The Court also had to consider whether an innocent party is entitled to choose the most advantageous remedy when multiple causes of action are available, and the standard of proof applicable when an innocent party seeks to establish future possibilities or past hypothetical situations. Furthermore, the Court had to address the admissibility of evidence concerning the conduct of the innocent party had the breach not occurred, and the proper approach when the evidence called by the innocent party fails to provide a rational foundation for a proper estimate of damages. Procedural issues regarding the status of an amended notice of appeal filed without leave after judgment was reserved, and submissions exceeding the scope of limited leave granted, were also before the Court.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in his assessment of damages. The Court reasoned that post-breach events were relevant to the assessment of damages, particularly in determining the quantum of loss. The Court applied principles relating to the assessment of damages for loss of opportunity, emphasizing the need for a rational foundation for any estimate of future possibilities. The Court also considered the principles governing equitable compensation for breach of fiduciary duty, noting that the quantum of such compensation is generally assessed at the time of the breach or at a later date if it is more advantageous to the plaintiff. The Court varied the primary judge's orders, reducing the amount of damages awarded to the respondents and adjusting the order for costs. The cross-appeal was dismissed.
Orders
Orders of the court
1. Appeal allowed with costs. 2. Order that order 1 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the respondents have judgment in the sum of $152,691.97 together with interest thereon from 20 March 2009 in accordance with section 101 of the Civil Procedure Act 2005 (NSW). 3. Order that order 2 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the appellants pay the respondents’ costs in the Court below as agreed or assessed on the ordinary basis other than those costs incurred by the respondents in relation to the award of damages in the amount of $22,694 for the decrease in the respondents’ party-party costs. 4. Cross-appeal dismissed with costs.