Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158

The Court upheld the finding of misleading and deceptive conduct regarding certain representations by the appellants that induced the respondents to purchase a faulty timber shredder, but found error in reducing damages for failure to mitigate and in certain damages calculation aspects. The Court concluded a Peterson machine would have been ordered with a 6-month delay, adjusted the damages accordingly, and clarified the application of proportionate liability and evidentiary rules.

Parties
First Appellant: Doppstadt Australia Pty Ltd; Second Appellant: Raymond John Davis; First Respondent: Lovick & Son Developments Pty Ltd; Second Respondent: Lovick Engineering Pty Ltd
Jurisdiction
Australia
Judgment Date
21 May 2014
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed in part; cross-appeal allowed in part
Legal Topics
Costs, Mitigation of Damages, Misleading or Deceptive Conduct, Damages Calculation, Proportionate Liability, Evidentiary Inferences
Civil Procedure Trade Practices Damages Consumer Protection Costs Mitigation of Damages Misleading or Deceptive Conduct Damages Calculation +2 more

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Parties

Doppstadt Australia Pty Ltd

First Appellant

Raymond John Davis

Second Appellant

Lovick & Son Developments Pty Ltd

First Respondent

Lovick Engineering Pty Ltd

Second Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether various representations were misleading or deceptive under s 52 Trade Practices Act 1974 and s 42 Fair Trading Act 1987
  2. 2 Whether respondents failed to mitigate their loss and if so, appropriate damages reduction
  3. 3 Whether claims were apportionable and respondents or others were concurrent wrongdoers under proportionate liability legislation

Ratio Decidendi

The Court upheld the finding of misleading and deceptive conduct regarding certain representations by the appellants that induced the respondents to purchase a faulty timber shredder, but found error in reducing damages for failure to mitigate and in certain damages calculation aspects. The Court concluded a Peterson machine would have been ordered with a 6-month delay, adjusted the damages accordingly, and clarified the application of proportionate liability and evidentiary rules.

Court Disposition

Appeal allowed in part; cross-appeal allowed in part

Orders

  • Vary orders 1 and 2 made by the primary judge on 27 February 2013 by amending the reference to 'the plaintiffs' to read 'the second plaintiff' and by inserting the figure of '$216,424.32' in place of '$254,468.80'.
  • Set aside order 2 made by the primary judge on 18 April 2013 in respect of the amount of interest on the judgment from 1 March 2005 to 27 February 2013.