Robert John Downing v WIN Television (NSW) Pty Ltd (No 2)

Robert John Downing, the plaintiff, brought a case against WIN Television (NSW) Pty Ltd, the defendant, regarding trespass and damages. The plaintiff sought compensation for the defendant's alleged trespass on his property, which he claimed caused him loss of income from advertising revenue. The dispute was heard in the Supreme Court of New South Wales. The core issue in the case was determining the appropriate amount of damages to be awarded for the trespass, specifically what constitutes a reasonable rent for the purpose of calculating damages. The plaintiff argued that the defendant's actions resulted in a significant loss of advertising revenue, while the defendant contested the extent of the loss and the appropriateness of the claimed rent.

The court needed to address whether the incomplete records of the plaintiff's advertising revenue constituted an insurmountable obstacle to establishing the damages. The central legal question was whether the plaintiff had discharged the burden of proof to demonstrate the loss of income and, if so, what rent would be considered reasonable for the purpose of calculating the damages. The court considered whether the lack of complete records should preclude the plaintiff from recovering any damages or if the court could make an equitable assessment based on the available evidence.

The court held that the plaintiff had successfully discharged the burden of proof to the required standard of balance of probabilities, even though the records were incomplete. The court found that the loss of advertising revenue was a direct result of the defendant's trespass and that the evidence provided was sufficient to make an equitable assessment. The court concluded that the plaintiff was entitled to compensation for the loss of income, and the determination of the appropriate rent for the purpose of damages should be based on a reasonable assessment of the available evidence. The court did not consider the issue to be one of principle but rather a matter of proof that the plaintiff had sufficiently demonstrated.

The court awarded the plaintiff damages based on a reasonable assessment of the lost advertising revenue. The court did not specify the exact amount of damages but outlined the approach to be taken in calculating the reasonable rent. The court's decision focused on the procedural aspect of the case, emphasising the importance of the plaintiff's burden of proof and the court's ability to make an equitable assessment despite incomplete records. The court did not provide a definitive figure for the damages but established the framework for calculating the reasonable rent moving forward.