Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd

Monaghan Surveyors Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision concerning damages awarded to Stratford Glen-Avon Pty Ltd (the respondent). The dispute arose from alleged negligent breaches of contract and tort, as well as misleading and deceptive conduct.

The Court of Appeal was required to determine whether Part 1A of the *Civil Liability Act 2002* (NSW) applied to the respondent's claims. Specifically, the court considered whether the analysis under section 5D of that Act incorporated policy questions, and whether the loss suffered by the respondent was reasonably foreseeable or within the contemplation of the parties as a probable result of the contract. The court also examined whether the elements of a cause of action for misleading and deceptive conduct under section 42 of the *Fair Trading Act 1987* (NSW) included negligence, and whether this position differed from that under section 52 of the *Trade Practices Act 1974* (Cth).

The Court of Appeal reasoned that the application of the *Civil Liability Act 2002* (NSW) to claims for breach of contract and misleading or deceptive conduct required careful consideration of the statutory provisions and their interaction with common law principles. The court analysed the foreseeability of the loss in both contractual and tortious contexts, and the elements required to establish misleading and deceptive conduct. The court ultimately found that the assessment of damages, particularly in relation to the interplay between different causes of action and the application of statutory regimes, warranted further detailed submissions from the parties.

The Court of Appeal ordered the parties to file short minutes of orders within 14 days. If agreement could not be reached, each party was to file its proposed orders and supporting submissions within 28 days, with a further seven days allowed for a brief submission in reply.