Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223

Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223

The cessation of construction works due to the structural defect, caused by the respondent's misleading and deceptive conduct, was a material cause of Bankwest's enforcement of its security and the appellants' resulting loss of opportunity. This satisfies the causation requirement under the statute. The loss was at least generally foreseeable, and the discretionary discount of 15% applied by the primary judge for contingencies was appropriate.

Jurisdiction
Australia
Judgment Date
24 September 2020
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed with costs; cross-appeal dismissed with costs; judgment for the first appellant for $2,265,556 and for the second appellant for $1,105,000.
Legal Topics
['misleading or Deceptive Conduct' 'causation' 'remedies' 'loss of Opportunity' 'measure of Damages']
['contracts' 'statutory Misleading Conduct' 'tort'] ['misleading or Deceptive Conduct' 'causation' 'remedies' 'loss of Opportunity' 'measure of Damages']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether the respondent's misleading or deceptive conduct caused the appellants' loss and damage for the purposes of section 82 Trade Practices Act 1974 (Cth)" 'Whether causation is established on the available evidence' 'Whether the loss was foreseeable' 'The measure and discount to apply to a lost commercial opportunity']

Ratio Decidendi

The cessation of construction works due to the structural defect, caused by the respondent's misleading and deceptive conduct, was a material cause of Bankwest's enforcement of its security and the appellants' resulting loss of opportunity. This satisfies the causation requirement under the statute. The loss was at least generally foreseeable, and the discretionary discount of 15% applied by the primary judge for contingencies was appropriate.

Court Disposition

Appeal allowed with costs; cross-appeal dismissed with costs; judgment for the first appellant for $2,265,556 and for the second appellant for $1,105,000.

Orders

  • ['Appeal allowed with costs.' 'Cross-appeal dismissed with costs.' 'Set aside orders of 26 February 2020.' 'Judgment entered for first appellant in the sum of $2,265,556.' 'Judgment entered for second appellant in the sum of $1,105,000.']