PPK Willoughby Pty Ltd v Baird

Case [2021] NSWCA 312


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

Hussey v Eels [1990] 2 QB 227

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

Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner of Taxation [2017] NSWCA 81

Potts v Miller (1940) 64 CLR 282; [1940] HCA 43

Potts v Miller (1940) 40 SR (NSW) 351

PPK Willoughby Pty Ltd v Baird [2020] NSWSC 1757

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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Details
AGLC
PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312
Case
[2021] NSWCA 312
Decision Date

CaseChat Overview and Summary

PPK Willoughby Pty Ltd (the developer) appealed a decision of the primary judge concerning damages awarded against its former solicitors, Baird. The developer had purchased land by tender, with an obligation to construct a development in accordance with a masterplan, and had subsequently made a profit on the development. The dispute arose from misleading advice provided by the solicitors regarding whether the land was flood-affected, which led the developer to incur costs in persuading the local council to remove a flood notation from the land. The developer's claim against the solicitors was framed as a "no transaction" case, seeking the difference between the purchase price and the "true value" of the land.

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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