Slinger & Anor v Southern White Pty Ltd

(2005) 92 SASR 303; [2005] SASC 267

Supreme Court of South Australia

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Interrogate

Catchwords

1. Trade and Commerce
2. › Misleading or deceptive conduct
3. › Fair Trading Act 1987 (SA)
4. › Conduct by omission or silence
5. › Duty to disclose or reasonable expectation of disclosure
6. › Sale of business
7. › Whether failure to update financial information constituted misleading and deceptive conduct
8. › Whether conduct capable of misleading and deceiving
9. › Nature of audience to be considered
10. › Reliance
11. › Fair Trading Act 1987 (SA), ss 54, 56, 84
1. Damages
2. › Measure of damages
3. › Misleading or deceptive conduct
4. › Difference between price paid and value received
5. › Loss of profit
6. › Whether both heads of damages recoverable
7. › Double compensation
8. › Distinction between contractual and tortious measure of damages
9. › Fair Trading Act 1987 (SA), s 84
10. › Misrepresentation Act 1972 (SA), s 7
1. Sale of Land and Business
2. › Vendor's statement
3. › Obligation to update
4. › Change of circumstances between service and contract
5. › Whether vendor's statement defective
6. › Land and Business (Sale and Conveyancing) Act 1994 (SA), ss 8, 10, 15

Quick Take

In a claim for misleading and deceptive conduct in the sale of a business, a plaintiff who recovers the difference between the price paid and the value received (capital loss) cannot also recover loss of profit based on projected earnings that were not the subject of a contractual warranty, as this constitutes double compensation. The principle against double recovery applies to claims under the Fair Trading Act 1987 (SA) s 84 and the Land and Business (Sale and Conveyancing) Act 1994 (SA) s 15, notwithstanding that damages under those provisions are not confined by analogy with contract or tort.