Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd

[2020] NSWCA 223

NSW Court of Appeal

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Interrogate

Catchwords

1. Contracts
2. › Misleading conduct under statute
3. › Misleading or deceptive conduct
4. › Representations
5. › Loss
6. › Causation
7. › Whether misleading conduct was a material cause of loss where loss flowed from third party's decision
8. › Whether inference of causation available in absence of direct evidence of third party's motivation
9. › Trade Practices Act 1974 (Cth), ss 52, 82
1. Contracts
2. › Misleading conduct under statute
3. › Remedies
4. › Measure of damages
5. › Loss of opportunity
6. › Assessment of discount for contingencies
7. › Whether assessment of damages for loss of opportunity is discretionary in character
8. › Trade Practices Act 1974 (Cth), s 82
1. Contracts
2. › Misleading conduct under statute
3. › Remedies
4. › Remoteness of damage
5. › Whether loss must be foreseeable at least in a general way under s 82 of the Trade Practices Act 1974 (Cth)
6. › Trade Practices Act 1974 (Cth), s 82

Quick Take

Practitioners pursuing misleading or deceptive conduct claims where loss flows from a third party's decision (such as a financier enforcing security) should note that causation can be established by inference from the totality of the evidence without direct evidence of the third party's motivation, provided the inference is overwhelming rather than merely conjectural.