Murphy v Overton Investments Pty Ltd [2004] HCA 3

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

JOHN JAMES MURPHY & ANOR APPELLANTS

AND

OVERTON INVESTMENTS PTY LIMITED RESPONDENT

Murphy v Overton Investments Pty Ltd

[2004] HCA 3

5 February 2004

S78/2003

ORDER

1. Appeal allowed with costs. 2. Set aside pars 5(viii), (ix), (x) and (xi) of the orders made by the Full Court of the Federal Court on 22 June 2001 and, in lieu thereof, order that: 3. Appeal allowed with costs. 4. Remit the applications in Matters N159 of 1999 and N946 of 1999 to the trial judge for consideration of the assessment of damages and interest to be allowed to the appellants conformably with the reasons given by this Court, and entry of judgment accordingly. 5. Costs of the original trial and of the further proceedings on remitter to be in the discretion of the trial judge.

On appeal from the Federal Court of Australia

Representation:

R J Ellicott QC with G A Moore for the appellants (instructed by The Aged-Care Rights Service Inc)

J C Kelly SC with A J McInerney for the respondent (instructed by Gadens Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Murphy v Overton Investments Pty Ltd

Trade Practices – Remedies – Misleading conduct – Lease for unit in retirement village – Lessee liable to pay proportionate part of all expenditure incurred in operating village – Estimate of likely expenditure given to prospective lessees – Estimate misleading – Estimate did not include all expenditure being incurred in operation of the village – Accepted that respondent engaged in conduct in contravention of Pt V of the Trade Practices Act 1974 (Cth) – Relief available under Pt VI of the Trade Practices Act – Whether appellants suffered "loss or damage" within meaning of ss 82 and 87 of the Trade Practices Act – Whether "loss or damage" confined to economic loss – Whether incurring unexpected expenditure can be loss or damage – Whether "loss or damage" is necessarily singular – Whether loss or damage constituted only by any diminution in value of the lease – Whether increased future contributions could be awarded as damages.