Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121

Federal Court of Australia Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 Appeal from: Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291

File number(s): QUD 521 of 2023

Judgment of: BROMWICH, THAWLEY AND O'SULLIVAN JJ

Date of judgment: 18 September 2024

AUSTRALIAN CONSUMER LAW – appellant alleges misleading and deceptive conduct in relation to the sale of Bluewater Square Shopping Centre – where trial judge found that the respondents did not engage in misleading and deceptive conduct, appellant did not rely on any misleading conduct and the appellant did not suffer any damage – held that respondents engaged in misleading and deceptive conduct in representing that Centre tenants were not in arrears of rent and had no relevant history of arrears in rent – held that the appellant sustained damage because of the respondents' conduct – damaged quantified on appeal – appeal allowed AUSTRALIAN CONSUMER LAW – where second respondent pleaded apportionable claim against first respondent – where respondents concurrent wrongdoers – damage apportioned between respondents EVIDENCE – where appellant alleges that trial judge relied on expert accounting evidence which relied on untested hearsay evidence in the form of annotations to business records – annotations objected to – annotations should have been rejected where controversial PROCEDURAL FAIRNESS – where trial judge declined to consider appellant's submissions about why various conclusions of expert in connection with actual rent arrears position were wrong or should be qualified, including on the basis that hearsay annotations were inadmissible and unreliable – appeal court able to consider and address the submissions on appeal – submissions mostly made out – actual arrears position quantified on appeal Catchwords: EVIDENCE – assessment of credibility – trial judge treated reliance evidence with "caution" on the basis that such evidence must be treated with caution because it is self-serving and hypothetical – observations about whether such evidence must be treated with "caution" EVIDENCE – assessment of credibility – trial judge treated evidence of an employee of the appellant with "caution" because employee was considered to have an interest in the outcome of the litigation – interest in outcome of litigation not identified – observations about whether evidence of an employee of a party must be treated with "caution" EVIDENCE – assessment of credibility – one part of opinion evidence of expert witness considered by trial judge to be unexplained – lack of explanation considered to go to more than the reliability of the evidence – where expert's explanation for opinion not referred to by trial judge DAMAGES – assessment of market value by reference to opinions of experts adopting broadly the same methodologies – discussion of proper approach to determination of value – discussion of duty of court to form and act on its own opinion of value – role of expert is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the court to form its own independent judgment by the application of these criteria to the facts proved in evidence DAMAGES – determination of real or true value of Centre with the assistance of expert opinion evidence on market value – loss or damage because of misleading conduct determined