Where damages for misleading and deceptive conduct in the sale of a business include an award for overpayment of goodwill (capital loss), continuing trading losses cannot be recovered in addition unless they represent losses not already compensated by the capital loss award. Losses incurred in an initial period of disruption, before the purchaser can stabilise the business, may be recoverable as additional damages. Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) does not exclude the Act merely because an intentional act is found incidentally; s 34A(1)(a) is the relevant provision excluding proportionate liability where the concurrent wrongdoer intended to cause the economic loss.
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