ADC v White [1999] NSWSC 43

ADC v White [1999] NSWSC 43

The referee was correct in principle to examine whether ADC suffered loss by reference to what would have occurred if ADC had not relied on the misrepresentation. The question was a factual one: what contract, if any, would ADC have entered into in the absence of the misrepresentation, and would that have also resulted in loss. The referee found, in accordance with evidence and proper principle, that ADC would have entered into a similar contract at about the same (non-viable) price resulting in no loss. However, the referee failed to give explicit reasons with respect to the evidence of Mr Huntstead, a material witness on a critical finding. This failure to give reasons warranted...

Parties
Plaintiff: Australian Development Corporation Pty Ltd; First Defendant: White Constructions (ACT) Pty Ltd; Second Defendant: Exxon Coal Australia Ltd (formerly White Industries Ltd)
Jurisdiction
Australia
Judgment Date
08 February 1999
Procedural Posture
Civil / Judgment Following Reference to Referee and Challenge to Referee's Report
Outcome
Matter referred back to referee for further reasons regarding evidence of Mr Huntstead; otherwise report not rejected nor fully adopted; further submissions invited on orders.
Legal Topics
Misrepresentation, Damages, Misleading and Deceptive Conduct, Assessment of Damages, Building Contract, Reference to Referee, Adoption of Referee's Report
Contract Law Trade Practices Evidence Civil Procedure Misrepresentation Damages Misleading and Deceptive Conduct Assessment of Damages +3 more

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Parties

Australian Development Corporation Pty Ltd

Plaintiff

White Constructions (ACT) Pty Ltd

First Defendant

Exxon Coal Australia Ltd (formerly White Industries Ltd)

Second Defendant

Procedural Posture

Civil / Judgment Following Reference to Referee and Challenge to Referee's Report

Legal Issues

  1. 1 Whether court should adopt, vary or reject referee's report regarding damages and findings of law and fact; whether the use of a hypothetical scenario in damages assessment was appropriate; whether the referee failed to give reasons regarding key evidence, namely from Mr Huntstead; whether the principles regarding assessment of damages for misleading and deceptive conduct under s 52, Trade Practices Act 1974 (Cth) were correctly applied

Ratio Decidendi

The referee was correct in principle to examine whether ADC suffered loss by reference to what would have occurred if ADC had not relied on the misrepresentation. The question was a factual one: what contract, if any, would ADC have entered into in the absence of the misrepresentation, and would that have also resulted in loss. The referee found, in accordance with evidence and proper principle, that ADC would have entered into a similar contract at about the same (non-viable) price resulting in no loss. However, the referee failed to give explicit reasons with respect to the evidence of Mr Huntstead, a material witness on a critical finding. This failure to give reasons warranted...

Court Disposition

Matter referred back to referee for further reasons regarding evidence of Mr Huntstead; otherwise report not rejected nor fully adopted; further submissions invited on orders.

Orders

  • Short Minutes to be brought in;
  • Matter referred back to referee for reasons relating to Mr Huntstead's evidence material to critical findings;