Netline Pty Ltd v QAV Pty Ltd - [2022] WASCA 131

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NETLINE PTY LTD -v- QAV PTY LTD [2022] WASCA 131
CORAM:   BUSS P
ALLANSON J
SMITH J

HEARD:   3 MAY 2022
DELIVERED          :   6 OCTOBER 2022
FILE NO/S:   CACV 55 of 2020
BETWEEN:   NETLINE PTY LTD
First Appellant

KATHRYN ISABEL LANCE
Second Appellant

AND

QAV PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: NETLINE PTY LTD -v- QAV PTY LTD [2020] WASC 23
File Number            :   CIV 1289 of 2014

Catchwords:

Contract - Breach of contact - Assessment of damages - Mitigation of loss - Whether the Master's approach to the assessment of the appellants' damages was flawed

Legislation:

Nil

Result:

Appeal allowed
Orders of the Master made on 6 May 2020 set aside

Appellants' application for the assessment of damages remitted to a judge of the General Division for rehearing and determination according to the law

Category: B

Representation:

Counsel:

First Appellant	:	Mr L A Warnick
Second Appellant	:	Mr L A Warnick
Respondent	:	Mr A P Hershowitz

Solicitors:

First Appellant	:	Vogt Graham Lawyers
Second Appellant	:	Vogt Graham Lawyers
Respondent	:	Lawton Gillon

Case(s) referred to in decision(s):

Bak v Glenleigh Homes Pty Ltd [2006] NSWCA 10
Castle Constructions Pty Ltd v Fekala Pty Ltd [2006] NSWCA 133; (2006) 65 NSWLR 648
Chand v Commonwealth Bank of Australia [2015] NSWCA 181
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396
Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65
Elliott v Reading [1999] WASCA 11
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1
Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; (2000) 10 BPR 18,235
Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507
Morrison v Town of Victoria Park [2007] WASCA 164
Nangus Pty Ltd v Charles Donovan Pty Ltd (in liq) [1989] VR 184
Netline Pty Ltd v QAV Pty Ltd [2020] WASC 23
Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113
Netline Pty Ltd v QAV Pty Ltd [No 2] [2015] WASC 113 (S2)
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) [1981] HCA 59; (1981) 150 CLR 225
Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt (The 'Solholt') [1983] Lloyd's Rep 605
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
The Bwllfa & Merthyr Dare Steam Collieries (1891)

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.

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Details

Case: [2022] WASCA 131
Decision Date

CaseChat Overview and Summary

This appeal concerns the assessment of damages for a breach of contract between the appellants, Netline Pty Ltd and Kathryn Isabel Lance, and the respondent, QAV Pty Ltd. The dispute arose from a wrongful termination of a split return agreement (SRA) between the parties, which was intended to provide caretaking and letting services for an apartment complex known as Ascot Village. The Court of Appeal was required to decide whether the Master's approach to the assessment of the appellants' damages was flawed.

The Court of Appeal found that the Master's approach to the assessment of the appellants' damages was flawed. The Court held that the Master did not assess the amount of the appellants' loss by reason of the respondent's wrongful refusal to perform the SRA and then determine the amount of the loss which the appellants had avoided and then determine whether there was any additional loss which the appellants, acting reasonably, should have avoided. The Master did not apply the well-established legal principles in determining whether the appellants had taken reasonable steps to mitigate their loss. Instead, the Master made an erroneous application of the concepts of 'election' and 'inconsistency'. The Court of Appeal concluded that the Master's characterisation of the appellants' decision to enter into the New Agreement as involving an 'election' or an 'inconsistency' was not a proper basis for deciding that the appellants had failed to mitigate their loss.

The appeal was allowed, and the orders of the Master made on 6 May 2020 were set aside. The appellants' application for the assessment of damages was remitted to a judge of the General Division of the Supreme Court for rehearing and determination according to law.

Orders