McCartney & Ors v Orica Investments Pty Ltd & Ors (No 2) [2011] NSWCA 387

McCartney & Ors v Orica Investments Pty Ltd & Ors (No 2) [2011] NSWCA 387

The first instance judge's assessment of damages and his findings on the likelihood of the Clos distributorship being lost were set aside as erroneous. The proper course is a new trial to determine afresh, on the evidence, the likelihood of loss and any resulting damages; the previous contingent appellate findings do not bind the new trial judge. The judgment sum previously paid must be repaid, as any contingent appellate reassessment falls away when a new trial is ordered.

Jurisdiction
Australia
Judgment Date
13 December 2011
Procedural Posture
Appeal / Orders on Appeal Following Judgment
Outcome
Appeal allowed. Orders below set aside. New trial ordered.
Legal Topics
['consequential Orders' 'damages' 'costs' 'restitution' 'new Trial']
['civil Procedure'] ['consequential Orders' 'damages' 'costs' 'restitution' 'new Trial']

Case Brief

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Procedural Posture

Appeal / Orders on Appeal Following Judgment

Legal Issues

  1. 1 ['Whether the Clos distributorship would have been lost in any event' 'Appropriate assessment of damages for loss of distributorship' 'Appropriate costs orders following appeal and new trial']

Ratio Decidendi

The first instance judge's assessment of damages and his findings on the likelihood of the Clos distributorship being lost were set aside as erroneous. The proper course is a new trial to determine afresh, on the evidence, the likelihood of loss and any resulting damages; the previous contingent appellate findings do not bind the new trial judge. The judgment sum previously paid must be repaid, as any contingent appellate reassessment falls away when a new trial is ordered.

Court Disposition

Appeal allowed. Orders below set aside. New trial ordered.

Orders

  • ['Set aside the orders made on 28 May and 2 June 2010.' 'Remit the proceedings to the Equity Division for a new trial as to whether the Clos distributorship would have been lost in any event and consequentially the damages for loss of the distributorship.' 'Order that the respondents repay to the appellants...