Oneflare Pty Ltd v Chernih

[2017] NSWCA 195

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Witness evidence
3. › Cross-examination
4. › Rule in Browne v Dunn
5. › Whether adverse credibility findings denied procedural fairness
6. › Whether truthfulness of witnesses sufficiently put in issue by affidavit evidence, opening statements and cross-examination
1. Contract
2. › Construction
3. › Informal and partly oral contract
4. › Objective theory of contract
5. › Meaning of 'aggressive' strategy in context of search engine optimisation services
6. › Whether instruction to pursue 'aggressive' strategy entailed non-compliant link building
1. Contract
2. › Remedies
3. › Damages
4. › Assessment of hypothetical past revenue
5. › Discount for uncertainty
6. › Whether drawing of inferences favourably to plaintiff required in all cases of uncertainty
7. › Whether discount for endogeneity, competition and counterfactual conduct appropriate

Quick Take

The rule in Browne v Dunn does not require that dishonesty be specifically put to a witness in cross-examination where the truthfulness of the witness's evidence has been made plain by competing affidavit evidence, opening statements and the general course of cross-examination. The Armory v Delamirie principle of resolving uncertainties in favour of a plaintiff whose loss was caused by the defendant's wrong does not require inferences to be drawn favourably to the plaintiff in all cases involving uncertainty expressible as a range of outcomes.