Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) [2019] FCAFC 167

FEDERAL COURT OF AUSTRALIA

Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) [2019] FCAFC 167 Appeal from: Wyzenbeek v Australasian Marine Imports Pty Ltd (No 2) [2018] FCA 1517

File number: NSD 2081 of 2018

Judges: RARES, BURLEY AND ANASTASSIOU JJ

Date of judgment: 27 September 2019

Catchwords: CONSUMER LAW – misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) – misleading representation that yacht would be suitable for ocean voyages – where yacht not constructed to be capable of ocean voyages DAMAGES – causation – assessment of loss and damage – construction of "loss or damage" under s 4K of Trade Practices Act – remedies under ss 82 and 87 of Trade Practices Act – rule in Potts v Miller (1940) 64 CLR 282 and approach in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 – "no transaction" case – where representee would not have purchased yacht if misrepresentation not made – where yacht not as represented – where misleading conduct was a cause of the loss or damage suffered – where representor claimed no damage caused because representee would have paid similar sums on another yacht – whether either party required or entitled to allege or prove other courses of action open – whether appropriate for the court to consider hypothetical counterfactual scenario DAMAGES – assessment of loss and damage – where asset was a non-income producing vessel – where appellants continued to use vessel after becoming aware of misrepresentation – whether court required to take account of benefit derived from use of the vessel – where claim is for economic loss and not loss of enjoyment – measure of damages for non-income producing vessel DAMAGES – assessment of loss or damage – costs incurred in owning and operating vessel – where appellants incurred significant costs repairing and upgrading vessel – whether appellants entitled to damages for consequential loss in a "no transaction" case