Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 Hearing dates: 25 November 2021 Decision date: 14 December 2021 Before: Basten JA at [1];
Leeming JA at [2];
Simpson AJA at [97].Decision: Appeal dismissed with costs.
Catchwords: DAMAGES – developer purchases land by tender – developer obliged to construct development as specified in masterplan – developer makes profit – solicitors acting for developer give misleading advice concerning whether land flood affected – developer incurs costs in persuading council to remove flood notation – developer sues solicitors, advances “no transaction” case and claims difference between purchase price and “true value” – consideration of “Potts v Miller” damages – significance of absence of market for land – significance of obligation to construct development – appeal dismissed
Legislation Cited: Conveyancing (Sale of Land) Regulation 2010 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) (2006) 67 NSWLR 343; [2006] NSWCA 282
Berry v CCL Secure Pty Ltd [2020] HCA 27; 94 ALJR 715
Brown v Dream Homes SA Pty Ltd (2008) 102 SASR 93; [2008] SASC 295
Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34
Clarke v Urquhart; Stracey v Urquhart [1930] AC 28
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Davidson v Tulloch (1860) 3 Macq 783
FSHC Group Holdings Ltd v Glas Trust Corporation Ltd [2020] Ch 365; [2019] EWCA Civ 1361
Gulic v Boral Transport Ltd [2016] NSWCA 269
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54
Hyde v United States 225 US 347 (1912)
Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25
Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65
Manwelland Pty Ltd v Dames & Moore Pty Ltd [2001] QCA 436
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69
McCallister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Ng v Filmlock Pty Ltd (2014) 88 NSWLR 146; [2014] NSWCA 389
Potts v Miller (1940) 64 CLR 282; [1940] HCA 43
Potts v Miller (1940) 40 SR (NSW) 351
Category: Principal judgment Parties: PPK Willoughby Pty Ltd (Appellant)
David Baird and 105 others (Respondents)Representation: Counsel:
A P Cheshire SC, E Lambert (Appellant)
T M Faulkner SC, J D…
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- AGLC
- PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312
- Case
- [2021] NSWCA 312
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in assessing damages, particularly in relation to the application of the principles established in *Potts v Miller*, and how the developer's obligation to construct the specified development and the absence of a readily ascertainable market for the land should be considered in the damages assessment. The court also considered the significance of the developer's ultimate profitability from the development.
The Court of Appeal, comprising Basten and Leeming JJA and Simpson AJA, dismissed the appeal. The court reasoned that the developer's claim for the difference between the purchase price and the "true value" was not appropriate in the circumstances, especially given the developer's profit from the development. The court applied the principles from *Potts v Miller*, which generally limits damages for misleading or deceptive conduct to the difference between the price paid and the actual value of the property, unless specific circumstances warrant a different approach. The court found that the developer's obligation to construct the development and the lack of a clear market for the land were significant factors that weighed against a "no transaction" measure of damages. The ultimate profitability of the development was also a relevant consideration in assessing the developer's loss.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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