APIR Systems Limited v Donald Financial Enterprises Pty Limited [2009] FCAFC 45

FEDERAL COURT OF AUSTRALIA

APIR Systems Limited v Donald Financial Enterprises Pty Limited [2009] FCAFC 45

TRADE PRACTICES AND RELATED MATTERS – whether primary judge erred in finding that respondent suffered loss or damage by misleading conduct of appellants – test in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 – not open to appellants to raise issue as ground of appeal as issue not raised by appellants at first instance – in any event, primary judge applied correct test in determining loss and damage TRADE PRACTICES AND RELATED MATTERS – no error demonstrated in finding of non-disclosure of material fact COSTS – no error of principle in primary judge's decision to make "Bullock" or "Sanderson" costs order – appellants cannot rely on Calderbank offer or other open offers where offers were found by primary judge not to be commensurate with the orders made INTEREST – appellants sought to limit interest to date on which settlement offer was made – award of pre-judgment interest is to compensate successful plaintiff for loss of use of money – no error of principle demonstrated by appellants as basis for interfering with primary judge's order – appeal dismissed Corporations Act 2001 (Cth) ss 1325, 1041H Trade Practices Act 1974 (Cth)ss 82, 87 APIR Systems Limited v Donald Financial Enterprises Pty Ltd [2008] FCA 1448 referred to Aristotite v Gladstone Park Shopping Centre Pty Ltd (1984) 2 FCR 334 applied Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 applied Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 referred to Coulton v Holcombe (1986) 162 CLR 1 applied Henville v Walker (2001) 206 CLR 459 referred to House v The King (1936) 55 CLR 499 referred to HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 followed Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 referred to Murphy v Overton Investments Pty Limited (2004), 216 CLR 388 followed Potts v Miller (1940) 64 CLR 282 referred to Wardley Australia Limited v Western Australia (1992) 175 CLR 514 referred to Whitaker v Commissioner of Taxation (1998) 82 FCR 261 applied