Berry v CCL Secure Pty Ltd [2020] HCA 27

Berry v CCL Secure Pty Ltd [2020] HCA 27

The respondent failed to discharge the evidentiary onus of proving a real possibility that, absent the misleading or deceptive conduct, it would have lawfully terminated the Agency Agreement before June 2010. Damages were therefore properly assessed by reference to the commissions that would have been payable under...

Source-derived case information.

Parties
Appellant: Benoy Berry; Appellant: Global Secure Currency Limited; Respondent: CCL Secure Pty Ltd
Jurisdiction
Australia
Judgment Date
05 August 2020
Procedural Posture
Appeal / High Court Appeal From Full Court of the Federal Court of Australia
Outcome
Appeal allowed
Legal Topics
Misleading or Deceptive Conduct, Damages, Assessment of Damages, Causation, Termination of Contract
Trade Practices Commercial Law Misleading or Deceptive Conduct Damages Assessment of Damages Causation Termination of Contract

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Parties

Benoy Berry

Appellant

Global Secure Currency Limited

Appellant

CCL Secure Pty Ltd

Respondent

Procedural Posture

Appeal / High Court Appeal From Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether the respondent's misleading or deceptive conduct caused actionable loss under s 82 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether, but for the misleading or deceptive conduct, the Agency Agreement would have been lawfully terminated prior to June 2010
  3. 3 Which party bears the burden of proof regarding counterfactual termination of the Agency Agreement and assessment of damages

Ratio Decidendi

The respondent failed to discharge the evidentiary onus of proving a real possibility that, absent the misleading or deceptive conduct, it would have lawfully terminated the Agency Agreement before June 2010. Damages were therefore properly assessed by reference to the commissions that would have been payable under the Agency Agreement up to June 2010, and the Full Court erred in finding otherwise.

Court Disposition

Appeal allowed

Orders

  • Orders 1 and 2 made by the Full Court of the Federal Court of Australia on 4 June 2019 set aside
  • In lieu thereof, order judgment for the appellants in the sum of $27,078,507, plus interest pursuant to statute