Vieira v O'Shea

[2012] NSWCA 21

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Evidence
4. › Findings of fact by trial judge
5. › Construction of contract
6. › Whether open to appellate court to reassess construction of contract based on findings of fact made by trial judge
7. › Fox v Percy [2003] HCA 22
1. Contract
2. › Construction
3. › Identifying contract terms
4. › Contract for advice prior to purchase
5. › Use of language of the contracting parties
6. › Whether contract terms should be formulated using language actually used between the parties
1. Contract
2. › Breach
3. › Contract to recommend only suitable assets for purchase
4. › Whether recommendation of asset with known defects constituted breach
5. › Whether plaintiff required to prove what he would have done had contract been performed
1. Damages
2. › Contract
3. › Time for assessment
4. › Whether assessed at time of breach or at some other date
5. › Circumstances in which plaintiff locked in to holding asset
6. › Mitigation of loss

Quick Take

Where a contract requires an adviser to recommend only assets meeting specified criteria, a recommendation of an asset that does not meet those criteria is a breach of contract, and the plaintiff need not prove what they would have done had the contract been performed — it is sufficient that no recommendation would have been made. Damages for breach of contract involving the acquisition of an asset the plaintiff would not otherwise have acquired may be assessed at the date when the plaintiff could reasonably have sold the asset, rather than at the date of breach, where the plaintiff was 'locked in' to holding the asset.