Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15

Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15

The Court found that Mr Thomson made ongoing post-contractual representations as to Bowen Basin's imminent ability to pay, which STX relied upon in delaying termination of the charterparty. However, damages could not be based on contractual rates without evidence that loss resulted from that reliance. Damages for bunkers were permissible but modest due to lack of direct evidence. The correct measure of loss is the profit STX would have earned but for reliance, and the matter is remitted for proper evidence on loss of profit.

Jurisdiction
Australia
Judgment Date
29 February 2012
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed in part
Legal Topics
['contract of Affreightment' 'voyage Charterparty' 'payment of Freight' 'demurrage' 'misleading and Deceptive Conduct' 'reliance' 'measure of Damages' 'loss of Profit']
['admiralty' 'trade Practices' 'damages'] ['contract of Affreightment' 'voyage Charterparty' 'payment of Freight' 'demurrage' 'misleading and Deceptive Conduct' 'reliance' 'measure of Damages' 'loss of Profit']

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ["Whether post-contractual representations were made by Mr Thomson to STX regarding Bowen Basin's capacity to pay" "Whether STX relied on Mr Thomson's representations in delaying the termination of the charterparty" 'The appropriate measure and quantum of damages for loss suffered as a result of the representations']

Ratio Decidendi

The Court found that Mr Thomson made ongoing post-contractual representations as to Bowen Basin's imminent ability to pay, which STX relied upon in delaying termination of the charterparty. However, damages could not be based on contractual rates without evidence that loss resulted from that reliance. Damages for bunkers were permissible but modest due to lack of direct evidence. The correct measure of loss is the profit STX would have earned but for reliance, and the matter is remitted for proper evidence on loss of profit.

Court Disposition

Appeal allowed in part

Orders

  • ['The appeal be allowed in part.' "The respondent's damages claim be remitted to the primary judge to receive evidence on loss of profit caused by the breach." "The respondent pay the appellant's costs of the appeal, to be taxed if not agreed."]