Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163

Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163

The respondent failed to establish on the balance of probabilities that he lost a real or non-negligible opportunity to increase the growth of his practice as a consequence of the appellant’s breach, and the assessment of damages by the primary judge was without a proper evidentiary or reasoned basis, requiring the orders to be set aside and judgment entered for the appellant.

Jurisdiction
Australia
Judgment Date
17 May 2005
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed; verdict and orders of Delaney DCJ set aside; judgment for appellant; costs to appellant with certificate under the Suitor's Fund Act 1951 if qualified.
Legal Topics
['assessment of Damages' 'loss of Opportunity' 'implied Warranty' 'breach of Contract']
['contract Law' 'consumer Law' 'damages'] ['assessment of Damages' 'loss of Opportunity' 'implied Warranty' 'breach of Contract']

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ["Whether the respondent lost an opportunity of real value as a result of the appellant's failure to include his details in the Yellow Pages, constituting breach of contract and section 74 of the Trade Practices Act 1974" 'Whether damages for loss of a chance or opportunity are recoverable in the circumstances' 'Whether there was evidence of actual loss or a chance of non-negligible value']

Ratio Decidendi

The respondent failed to establish on the balance of probabilities that he lost a real or non-negligible opportunity to increase the growth of his practice as a consequence of the appellant’s breach, and the assessment of damages by the primary judge was without a proper evidentiary or reasoned basis, requiring the orders to be set aside and judgment entered for the appellant.

Court Disposition

Appeal allowed; verdict and orders of Delaney DCJ set aside; judgment for appellant; costs to appellant with certificate under the Suitor's Fund Act 1951 if qualified.

Orders

  • ['Appeal allowed.' 'Set aside the verdict and orders of Delaney DCJ entered and made on 24 October 2003 and in lieu thereof enter judgment for the appellant.' "The respondent to pay the appellant's costs of the proceedings in the District Court and of the summons for leave to appeal and the appeal, with respect to...