Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57

Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57

The primary judge was correct to vary the damages to offset the rent that Dib Group would have had to pay under the head lease, with the result that Dib Group's loss was measured by what it would have received under the sublease less what it would have paid under the head lease. The credibility findings and refusal to find misleading or deceptive conduct or reliance were upheld on appeal; the appeal was allowed in part to account for repair costs agreed at $7,300. The cross-appeal failed on all grounds.

Jurisdiction
Australia
Judgment Date
03 May 2011
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
['variation of Orders' 'assessment of Damages for Repudiation' 'misleading and Deceptive Conduct' 'credibility of Witnesses' 'appeal and New Trial' 'reliance on Representations']
['practice and Procedure' 'damages' 'trade Practices' 'evidence'] ['variation of Orders' 'assessment of Damages for Repudiation' 'misleading and Deceptive Conduct' 'credibility of Witnesses' 'appeal and New Trial' 'reliance on Representations']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the primary judge erred in assessment of damages for repudiation of lease' 'Whether the primary judge had power to vary the judgment or order under Federal Court Rules' 'Whether representations made amounted to misleading or deceptive conduct under Trade Practices Act' 'Whether the findings on credibility could be challenged on appeal' 'Whether reliance on alleged representations was established']

Ratio Decidendi

The primary judge was correct to vary the damages to offset the rent that Dib Group would have had to pay under the head lease, with the result that Dib Group's loss was measured by what it would have received under the sublease less what it would have paid under the head lease. The credibility findings and refusal to find misleading or deceptive conduct or reliance were upheld on appeal; the appeal was allowed in part to account for repair costs agreed at $7,300. The cross-appeal failed on all grounds.

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • ['The appeal be allowed in part.' 'The order made on 2 August 2010 be varied by substituting for the amount "$133,026.50", the amount "$140,326.50".' 'There be no order as to the costs of the appeal.' 'The cross-appeal be dismissed.' "The cross-appellant pay the cross-respondent's costs of the cross-appeal."]