Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd

The case of Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd involved a dispute between Winky Pop, the plaintiff, and Mobil Refining Australia, the defendant. The plaintiffs sought compensation for damage to their land caused by Mobil's breach of duty. The claim focused on the loss of opportunity for the plaintiffs to rezone their land from industrial to residential use and obtain a planning permit for residential development. The case was heard and determined in the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether the judge had erred in concluding that the plaintiffs had not proven the existence of the opportunity as alleged, and whether the judge had erred in concluding that Mobil's admitted breach of duties was irrelevant to the potential rezoning and development of the land. Additionally, the court examined whether damages for loss of opportunity could be awarded in lieu of the usual bases of assessment for damage to land, which typically involve diminution in value or the cost of reinstatement, along with consequential damages under certain circumstances.

The court found no error in the judge's conclusions. It was established that the plaintiffs had not proven the existence of the opportunity as alleged, and that Mobil's breach of duty was immaterial to the potential rezoning and residential development of the land. The court further explained that while damages for loss of opportunity could be awarded, the critical question is what basis of assessment will most appropriately ensure fair and reasonable compensation in the particular case. The court noted that the risk of overcompensation when assessing damages based on loss of opportunity can be mitigated if the probabilities and possibilities are duly considered. However, the reliability of the assessment made on alternative bases in the specific case is also relevant to the basis selected.

The court also considered an application to adduce further evidence on appeal. The proposed evidence was not precisely identified, but it was suggested that it related to 'comparable land.' The court determined that there was no high degree of probability that the outcome would have been different if the evidence had been received at the trial. The application to adduce further evidence was therefore refused.