Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 4) [2023] NSWSC 1608

Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 4) [2023] NSWSC 1608

Damages for misleading or deceptive conduct in this 'no transaction' context must be quantified by reference to the period up to the liquidation of Dynamic on 27 August 2015 for lost profits, and the period up to 22 February 2017 for lost management fees, as the plaintiffs did not establish, on evidence or pleadings, the ongoing continuation of the Myer JV or the management fee arrangement beyond these dates. Plaintiffs bear the onus to establish their counterfactual loss, and in its absence, the Court cannot speculate to extend the compensable periods further.

Jurisdiction
Australia
Judgment Date
19 December 2023
Procedural Posture
Principal Judgment / Damages and Final Orders (other Than Costs) Following Liability Judgment
Outcome
Judgment for the plaintiffs against the first and second defendants in the sum of $134,412. Plaintiffs' claims against the third defendant dismissed. First defendant's cross-claim against the plaintiffs dismissed. Costs to be determined on the papers.
Legal Topics
['misleading or Deceptive Conduct' 'measure of Damages' 'no Transaction Case' 'lost Profits' 'management Fees' 'company Liquidation']
['equity' 'contracts' 'consumer Law'] ['misleading or Deceptive Conduct' 'measure of Damages' 'no Transaction Case' 'lost Profits' 'management Fees' 'company Liquidation']

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Procedural Posture

Principal Judgment / Damages and Final Orders (other Than Costs) Following Liability Judgment

Legal Issues

  1. 1 ["How should damages for misleading or deceptive conduct be quantified in a 'no transaction' case?" 'To what period(s) should lost profits and lost management fees be calculated?' 'Does liquidation of the company affect the plaintiffs’ entitlement to lost profits and management fees?']

Ratio Decidendi

Damages for misleading or deceptive conduct in this 'no transaction' context must be quantified by reference to the period up to the liquidation of Dynamic on 27 August 2015 for lost profits, and the period up to 22 February 2017 for lost management fees, as the plaintiffs did not establish, on evidence or pleadings, the ongoing continuation of the Myer JV or the management fee arrangement beyond these dates. Plaintiffs bear the onus to establish their counterfactual loss, and in its absence, the Court cannot speculate to extend the compensable periods further.

Court Disposition

Judgment for the plaintiffs against the first and second defendants in the sum of $134,412. Plaintiffs' claims against the third defendant dismissed. First defendant's cross-claim against the plaintiffs dismissed. Costs to be determined on the papers.

Orders

  • ['Judgment for the plaintiffs against the first and second defendants in the sum of $134,412 (comprising $85,536 in damages and $48,876 as court interest up to and including 19 December 2023).' "The plaintiffs' claims against the third defendant are dismissed." "The first defendant's cross-claim against the...