Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 2)

The plaintiff, Tuggeranong Town Centre Pty Ltd, brought an action against Brenda Hungerford Pty Ltd, seeking damages for loss of rent and other costs arising from the defendant’s abandonment of its tenancy at the Tuggeranong Town Centre. The case was heard in the Supreme Court of the Australian Capital Territory. The defendant subsequently brought a third-party claim against the National Australia Bank Ltd, seeking damages for the losses incurred due to the plaintiff's alleged misleading and deceptive conduct. The court was required to determine whether the defendant’s non-disclosure amounted to misleading or deceptive conduct under the Trade Practices Act, the admissibility of expert evidence, and the appropriate assessment of damages under the relevant legislation.

The court found that the defendant’s silence regarding certain financial and contractual matters constituted misleading and deceptive conduct, as the omission was material and could mislead a reasonable tenant. The court preferred the evidence of the plaintiff's expert witness, considering the instructions given and the nexus of the argument, despite the expert's evidence being provided in conclave with the other expert. The court also determined that the damages claimed by the plaintiff and the defendant were recoverable under the Trade Practices Act and the Fair Trading Act, respectively, provided there was a causal link between the misleading and deceptive conduct and the losses claimed. The court assessed the damages for loss of rent, exit costs, capital outlays, trading losses, borrowing costs, and interest, finding that they were reasonably incurred and mitigable.

The final orders of the court were that the plaintiff was to be awarded $88,223.06 in damages, with costs. The defendant’s counterclaim was dismissed with costs. The third party, National Australia Bank Ltd, was ordered to pay $1,377,561.94 to the defendant, with submissions on the costs to be filed by a specified date. The court also declared that the plaintiff was entitled to re-enter and terminate the sublease of the premises, and that the third party could call on the guarantee provided by the plaintiff’s bank to the extent of the judgment sum.