Berry v CCL Secure Pty Ltd [2020] HCA 27

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ

BENOY BERRY & ANOR APPELLANTS

AND

CCL SECURE PTY LTD RESPONDENT

Berry v CCL Secure Pty Ltd [2020] HCA 27 Date of Hearing: 3 June 2020 Date of Judgment: 5 August 2020 S315/2019

ORDER

1. Appeal allowed.

2. Set aside orders 1 and 2 made by the Full Court of the Federal Court of Australia on 4 June 2019 and, in lieu thereof, order that, in place of order 2 made by Rares J on 17 August 2018, there be judgment for the appellants in the sum of $27,078,507, plus interest pursuant to statute.

3. The respondent pay the appellants' costs of the appeal to the Full Court of the Federal Court of Australia and to this Court.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC with C S Ward SC and P F Santucci for the appellants (instructed by Marque Lawyers)

G K J Rich SC with J L Roy and J E Taylor for the respondent (instructed by Arnold Bloch Leibler)

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

CATCHWORDS

Berry v CCL Secure Pty Ltd

Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means.

Words and phrases – "balance of probabilities", "counterfactual lawful termination", "deliberate contravention", "evidential burden", "lawful means alternative", "legal burden", "misleading or deceptive conduct", "notice of termination", "presumption against wrongdoers", "real (not negligible) possibility", "recovery of damages for lost commercial opportunities", "reversal of onus of proof".