PPK Willoughby Pty Ltd v Baird

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.