H & Q Cafe Pty Ltd v Melbourne Cafe Pty Ltd & Anor

[2023] VSCA 200

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Consumer Law
2. › Misleading or deceptive conduct
3. › Damages under s 236 of Australian Consumer Law
4. › Measure of damages for purchase of business induced by misleading conduct
5. › Difference between purchase price and true value at date of acquisition
6. › Whether trial judge erred in finding plaintiff failed to prove loss
7. › Whether post-acquisition evidence necessary component of assessment
8. › Whether burden of proof correctly applied
9. › Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch 2), s 18, s 236
1. Appeal
2. › Application for leave to appeal
3. › County Court to Court of Appeal
4. › Assessment of damages as exercise of discretion
5. › Standard of appellate review
6. › Whether trial judge's assessment vitiated by error
7. › Whether appellate court should reassess damages
1. Evidence
2. › Assessment of expert evidence
3. › Duty of trial judge to critically evaluate expert evidence
4. › Uncontradicted expert evidence
5. › Best evidence rule
6. › Probative value of lodged tax return versus draft amended tax return
1. Evidence
2. › Burden of proof
3. › Facts peculiarly within knowledge of wrongdoer
4. › Evidential burden shifting to defendant
5. › Effect of destruction of evidence by wrongdoer
6. › Blatch v Archer principle

Quick Take

Post-acquisition trading evidence is not a prerequisite for proving loss in ACL damages claims for business acquisitions; the focus must be on the true value at the date of acquisition, and where the wrongdoer has destroyed evidence, slight evidence may suffice to shift the evidential burden.