Where misleading or deceptive conduct causes a creditor to defer recovery of a debt, the loss is properly characterised as a lost commercial opportunity to recover the debt, to be valued by reference to the degree of probabilities or possibilities of recovery — not on the civil standard of proof. [name withheld] where recovery was more probable than not, the value of the lost opportunity should be discounted for contingencies rather than assessed at 100% of the debt. The [name withheld] v [name withheld] rule does not permit inferences to be drawn that are not themselves available on the evidence before the Court; the absence of evidence cannot be used as positive evidence.
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