Kestrel Holdings Pty Ltd v APF Properties Pty Ltd [2009] FCAFC 144

FEDERAL COURT OF AUSTRALIA

Kestrel Holdings Pty Ltd v APF Properties Pty Ltd [2009] FCAFC 144

NEGLIGENCE – proposed purchase of three rural properties by joint venture – joint venture included vendors and purchasers – valuer engaged by accountants acting for purchasers – whether valuer owed a duty of care to purchaser in preparation of valuations – whether valuer was negligent in preparation and presentation of valuations

TRADE PRACTICES – misleading and deceptive conduct – whether representations by vendor company through one of its directors to valuer were misleading and deceptive – whether the valuer relied on those representations – whether representations made by vendor company and relied upon and set out by valuer in valuations were representations by valuer – whether vendor company liable to purchaser for misrepresentations as well as valuer being liable for misrepresentations

DAMAGES – contribution – concurrent liability of valuer and vendor company – contribution claimed between valuer and vendor company – assessment of relative culpability DAMAGES – damages for misleading and deceptive conduct and negligent misstatement – consideration of the assessment of damages by primary judge – appropriate measure of damages when the purchaser is not induced to enter into a transaction, but is induced to pay a higher price than it would otherwise have paid – interest calculated under O 35A r 7A(1) of the Federal Court Rules as measure of or substitute for damages for losses consequential upon payment of higher price

COSTS – appeal of valuer and of vendor each successful in part – appropriate order as to costs

Civil Liability Act 2002 (Tas) Part 9A Fair Trading Act 1990 (Tas) s 14(1) Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) Part IVA Wrongs Act 1954 (Tas) s 3