Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust; Taylor v LK Group Investments Pty Ltd [2023] NSWCA 204

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust; Taylor v LK Group Investments Pty Ltd [2023] NSWCA 204 Hearing dates: 01 December 2022 Date of orders: 01 September 2023 Decision date: 01 September 2023 Before: Mitchelmore JA at [1]; Simpson AJA at [128]; Basten AJA at [129] Decision: (1) Appeals allowed in part. (2) Vary order 1 made on 9 March 2022 to delete $1,012,500 and replace it with $27,330 (being 80 per cent of $34,162.50). (3) Vary order 3 made on 9 March 2022 to delete $1,012,500 and replace it with $27,330 (being 80 per cent of $34,162.50). (4) The appeals are otherwise dismissed. (5) The cross-appeals are dismissed. (6) With respect to the costs of the appeals, the cross-appeals and the costs order made below, the parties are to provide within 14 days of the date of these orders either- (a) short minutes of agreed orders, or (b) written submissions of no more than 5 pages, each party having a further 14 days to reply, with costs to be determined on the papers. Catchwords: DAMAGES — misleading or deceptive conduct — contractual warranties and other representations — ownership or control of intellectual property — "no transaction" case — whether respondents would have entered into transaction if true position known — adequacy of reasons on no transaction case DAMAGES — assessment of damages — misleading or deceptive conduct — expert evidence on damages — correctness of assumption that company was not a going concern — whether error as to assumption affected applicability of expert's preferred damages scenario CONTRACTS — contractual warranties – misleading or deceptive conduct — representation as to future matter — whether contractual warranty a representation as to future matter CORPORATIONS — damages — apportionment of damages — whether corporation was concurrent wrongdoer — where contractual warranties "jointly and severally" provided by corporation and directors Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12GF, 12GR Civil Liability Act 2002 (NSW), Pt 4 Competition and Consumer Act 2010 (Cth), ss 87CB, 87CD Corporations Act 2001 (Cth), ss 1041H, 1041I, 1041L Cases Cited: Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) (2006) 67 NSWLR 341; [2006] NSWCA 282 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 AVWest Aircraft Pty Ltd (as trustee for AVWest Aircraft Trust) v Clayton Utz (A Firm) (No 2) [2019] WASC 306 BB Australia Pty Ltd v Danset [2017] NSWSC 1307 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts; HSBC Bank Ltd v Abboud; Potts v National Australia Bank Ltd [2022] NSWCA 165; (2022) 405 ALR 70 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Robinson v 470 St Kilda Road Pty Ltd (2018) 263 FCR 572; [2018] FCAFC 84 Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154 Smith v Zhang [2012] NSWCA 142; 60 MVR 525 Stone v Chappel (2017) 128 SASR 165; [2017] SASCFC 72 Tomanovic v One Australia Pty Ltd [2015] NSWCA 11 Travel Compensation Fund v Tambree (2006) 224 CLR 627; [2006] HCA 69 Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (2019) 272 FCR 373; [2019] FCAFC 167 Category: Principal judgment Parties: 2022/96995 Andrew George Taylor (First Appellant) John Thomas Charles Wilkinson (Second Appellant) Stav Investments Pty Ltd (ACN 166 722 845) as trustee for the Stav Investments Family Trust (Respondent)