University of Western Australia v Gray (No 28) [2010] FCA 586

University of Western Australia v Gray (No 28) [2010] FCA 586

Sirtex is entitled to recover 86% of those reasonable legal costs and disbursements causally related to Dr Gray's breaches, as damages for loss of the commercial opportunity to resolve the dispute with UWA and avoid litigation. Recovery of such legal costs as damages is appropriate given the specific loss of opportunity caused by Dr Gray's misleading conduct and breach of duties. The quantum is discounted to reflect the assessed 86% probability that a settlement (via a share allocation) would have been reached and litigation avoided.

Jurisdiction
Australia
Judgment Date
10 June 2010
Procedural Posture
Civil / Assessment of Damages Following Earlier Judgment on Liability
Outcome
Sirtex Medical Limited entitled to recover 86% of relevant legal costs and disbursements from Dr Gray as damages. Parties to bring forward minute of orders implementing these findings.
Legal Topics
['damages for Loss of Commercial Opportunity' 'recovery of Legal Costs as Damages' "breach of Director's Duties" 'misleading or Deceptive Conduct' 'assessment of Damages' 'causation and Probability in Damages' 'fair Trading and Trade Practices Legislation']
['commercial Law' 'corporations Law' 'intellectual Property' 'litigation and Procedure'] ['damages for Loss of Commercial Opportunity' 'recovery of Legal Costs as Damages' "breach of Director's Duties" 'misleading or Deceptive Conduct' 'assessment of Damages' 'causation and Probability in Damages' 'fair Trading and Trade Practices Legislation']

Case Brief

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Procedural Posture

Civil / Assessment of Damages Following Earlier Judgment on Liability

Legal Issues

  1. 1 ["Whether legal costs incurred by Sirtex in proceedings were recoverable as damages for lost commercial opportunity caused by Dr Gray's breaches" "Assessment of the probability and quantum of Sirtex's loss (lost opportunity to resolve dispute with UWA)" "Causation between Dr Gray's contravening conduct and Sirtex's costs"]

Ratio Decidendi

Sirtex is entitled to recover 86% of those reasonable legal costs and disbursements causally related to Dr Gray's breaches, as damages for loss of the commercial opportunity to resolve the dispute with UWA and avoid litigation. Recovery of such legal costs as damages is appropriate given the specific loss of opportunity caused by Dr Gray's misleading conduct and breach of duties. The quantum is discounted to reflect the assessed 86% probability that a settlement (via a share allocation) would have been reached and litigation avoided.

Court Disposition

Sirtex Medical Limited entitled to recover 86% of relevant legal costs and disbursements from Dr Gray as damages. Parties to bring forward minute of orders implementing these findings.

Orders

  • ["Counsel to bring forward a minute of the orders reflecting the Court's assessment of damages in favour of Sirtex against Dr Gray;" 'Interest on damages to be calculated at 6% per annum from 1 April 2007 to judgment on the total allowable costs incurred (excluding GST), less any interest recovered from UWA.']