Bunnings Group Limited v CHEP Australia Limited (No 2)

[2011] NSWCA 384

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Conversion
3. › Assessment of damages
4. › Quantification where precise evidence unavailable
5. › Robust assessment
6. › Whether [name withheld] v [name withheld] principle confined to cases where wrongdoer made proof difficult
1. Restitution
2. › Restitution following variation of judgment on appeal
3. › Interest on restitutionary sum
4. › Whether pre-judgment or post-judgment rate applicable
5. › Whether special circumstances justified departure from court-prescribed rates
1. Practice and Procedure
2. › Costs
3. › Costs of trial and appeal
4. › Successful appellant on appeal but respondent successful at trial
5. › Whether costs order below should be disturbed
1. Practice and Procedure
2. › Amendment
3. › Leave to amend notice of appeal
4. › Restitution claim not expressly included
5. › No prejudice to respondent

Quick Take

The [name withheld] v [name withheld] principle permitting robust assessment of damages extends beyond cases where the wrongdoer has made proof more difficult; it applies more broadly where the nature of the wrong makes precise quantification impossible. The usual practice of the NSW Court of Appeal is to award restitutionary interest at pre-judgment court-prescribed rates on sums paid under judgments subsequently varied on appeal, unless special circumstances are demonstrated, and merely pointing to the parent company's cash deposit returns is insufficient to establish special circumstances.