A mortgagee exercising power of sale over property with separately tradeable water allocations must refer to those water allocations and their tradability in advertisements for sale; failure to do so breaches the duty under s 85(1) of the Property Law Act 1974 (Qld). Once breach of the advertising duty is established, the mortgagor need not prove that any identifiable purchaser would have paid more; the consequential damage is the sale at less than market value. However, a failure to consider a separate sale of a water allocation does not give rise to consequential damage if, had the mortgagee taken expert advice, it would have been justified in not pursuing that option. The correctness of the Investec v Glodale approach — that no causal link between breach and loss need be shown — was expressly left open.
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