Nicholson v Hilldove Pty Ltd & Ors

[2014] VSCA 158

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Damages
2. › Contractual damages
3. › Loss of opportunity
4. › Contract for sale of business
5. › Repudiation by vendor
6. › Whether purchaser lost opportunity to sell contract to highest bidder
7. › Whether evidence established any party prepared to pay for nomination as purchaser
1. Appeal
2. › Appeal from findings of fact
3. › Standard of appellate review
4. › Whether primary judge's findings were wrong
5. › Natural limitations of appellate court proceeding on the record

Quick Take

A plaintiff claiming loss of opportunity to sell a contract must prove on the balance of probabilities that they would in fact have pursued that course of action. Where the evidence establishes the plaintiff would have taken a different course (here, nominating a specific entity as purchaser), the claimed loss of opportunity fails at the threshold. Additionally, evidence of what a third party would have paid for a contract must address the true terms of that contract; evidence of willingness to pay based on a misunderstanding of the contract's terms does not establish the claimed loss.