Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd

Prosperity Advisers Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning advice provided by Secure Enterprises Pty Ltd, an insurance broker, to Prosperity Advisers regarding an insurance policy. The core of the dispute revolved around whether Prosperity Advisers had suffered a relevant loss due to Secure Enterprises' alleged wrongdoing, specifically whether the primary judge erred in concluding that Prosperity Advisers did not have a substantial prospect of acquiring a policy with the requisite protection.

The Court of Appeal was required to determine whether the primary judge had made factual errors in concluding that there was no evidence that a more advantageous policy would have been available and accepted by Prosperity Advisers. This involved assessing the principles applicable to the assessment of damages for a lost chance, and whether Prosperity Advisers was entitled to recover compensation for such a lost opportunity. The appeal also touched upon the issue of costs, specifically whether indemnity costs were warranted, and whether there had been a genuine offer of compromise.

The Court of Appeal dismissed the appeal. The judges found no error in the primary judge's conclusion that Prosperity Advisers had not suffered any relevant loss as a consequence of Secure Enterprises' conduct. This was based on the primary judge's assessment of the evidence, which did not establish that Prosperity Advisers had a substantial prospect of acquiring a more advantageous policy. Consequently, the appeal was dismissed with costs.