Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Limited (Quantum of Damages and Costs) [2020] NSWSC 1163

Supreme Court New South Wales

Medium Neutral Citation: Kenxue Pty Ltd ATF The Susan Investment Trust v Westpro Finance Pty Limited (Quantum of Damages and Costs) [2020] NSWSC 1163 Hearing dates: 12, 13, 14, 15, 18 and 19 May 2020 Decision date: 27 August 2020 Jurisdiction: Equity Before: Rein J Decision: See [28] Catchwords: CONTRACTS — Remedies — Damages – Plaintiff had established liability of Defendants for breach of contract, misleading and deceptive conduct and unconscionable conduct in respect of a transaction by which the Plaintiff lent approximately $6M to a borrower who defaulted. Plaintiff had led evidence in support of a claim for loss of use of the money lent in addition to the loss of the capital. The Court had held that the Plaintiff could recover the lost profit on a commercial real estate in which the Plaintiff's evidence was that it would have invested but could not recover both that lost real estate profit and interest pursuant to s 100 of the CPA: see [2020] NSWSC 1146. Plaintiff sought to obtain a judgment based on s 100 interest and the loss of capital rather than the loss of the real estate profit and loss of capital. The Defendants contended that the Plaintiff could not obtain interest pursuant to s 100. The interest pursuant to s 100 claimed was significantly higher than the loss of real estate profit – HELD: because the Plaintiff had by its evidence established what it would have done had the impugned transaction not gone ahead and what that would have yielded, s 100 interest could not be awarded or alternatively as a matter of discretion should not be awarded. Legislation Cited: Civil Procedure Act 2005 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Screenco Pty Ltd v R L Dew Pty Ltd [2003] NSWCA 319; 58 NSWLR 720 Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494 Henville v Walker [2001] HCA 52; 206 CLR 459 Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264; 326 ALR 556 Westpac Banking Corporation v Jamieson [2015] QCA 50; [2016] 1 Qd R 495 MPB (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 Texts Cited: Nil Category: Principal judgment Parties: Kenxue Proprietary Limited as trustee for the Susan Investment Trust (Plaintiff) Westpro Finance Pty Limited (First Defendant) Andre Kemp (Second Defendant) Representation: Counsel: Mr D Williams SC with Mr N Riordan (Plaintiff) Mr M McCulloch SC with Mr R Notley (First and Second Defendants)