Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55

FEDERAL COURT OF AUSTRALIA

Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55 Citation: Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55

Appeal from: Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2010] FCA 1028

Parties: CASTEL ELECTRONICS PTY LTD ACN 074 561 087 v TOSHIBA SINGAPORE PTE LTD REG NO 197401688Z

File number: VID 1080 of 2010

Judges: KEANE CJ, LANDER AND BESANKO JJ

Date of judgment: 20 April 2011

Catchwords: DAMAGES – foregone opportunity – whether primary judge erred by failing to consider whether the opportunity to pursue distributorship agreement was foregone by reason of reliance on representations alleged to have been misleading and deceptive – whether primary judge erred in not considering whether the opportunity remained available to the appellant after it had pursued alternative arrangements – whether opportunity had value. DAMAGES – damages arising from the supply of defective goods in breach of contract – whether appellant entitled to recover the costs of retaining sales and administrative staff who would not have continued to have been employed but for the supply of defective products in the absence of direct evidence that those employees would not have been retained – whether the court can infer this fact from principles of ordinary business practice. PRACTICE AND PROCEDURE – appeals – circumstances in which an appellate court is entitled to reverse the findings of a primary judge in relation to a witness' credibility – whether primary judge obliged to make express findings as to the reliability of witnesses where findings of fact are contrary to that witness' evidence. EVIDENCE – admissibility of expert evidence – forensic accountant report – whether evidence of a forensic accountant in relation to the loss or damage suffered by a company is opinion evidence or direct evidence of the financial state of the company – whether forensic accountant had specialised knowledge based on his training, study or experience – basis rule – whether the applicant has proved the underlying assumptions on which the expert's opinion is based – whether report admissible in circumstances where the respondent raised no objection to the applicant's failure to tender the basic financial information relied upon by the expert. CONTRACT – determination of contractual claims - whether each contract must be considered individually – whether primary judge entitled to treat multiple contractual claims as a single claim in circumstances where the breaches were substantially the same and occurred over a short period of time. CONTRACT – scope of Articles 35(3) and 77 of the United Nations Convention on Contracts for the International Sale of Goods – the circumstances in which art 35(3) excludes liability of a seller for the lack of conformity of goods the subject of the contract where the buyer knows of such lack of conformity – onus of proof to prove mitigation of loss under art 77 – whether art 77 requires a claimant to plead and positively prove that it has mitigated its loss – whether onus of proof cast upon party in breach by art 77 satisfied by that party asserting non-compliance by the claimant with its obligation to mitigate its loss.