ANTONIADES v KYRIACOU and ORS [1997] NSWCA 24

ANTONIADES v KYRIACOU and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, POWELL and COLE JJA 20 November 1997, 18 December 1997 [1997] NSWCA 24

negligent misrepresentation - calculation of damages — consequential loss and capital gain.

FACTS

The first respondents relied on statements made by the second respondent and the conduct of their solicitor, the appellant, in their purchase of a property from which they sought to conduct a wedding reception business, that attached to the property were existing use rights. These rights were not made out in proceedings in the Land and Environment Court to restrain the first appellants from carrying out their wedding reception business. The first respondents sold the property and the appellant appeals that part of damages calculated to effectively bestow a "super profit" on the first respondent and the contributions between the appellant and second respondent. The Council cross-appealed that his Honour erred in his finding of reliance.

HELD

(1) There is no operation of any claim for capital gain in the calculation of quantum: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 followed.

(2) Per Cole JA: The issue of capital gain in the calculation of consequential loss was not raised below and should not be raised on appeal.

(3) His Honour Dunford J made no error in calculating the apportionment of responsibilities of the appellant and second respondent.

(4) The decision by his Honour Dunford J not to calculate the rent collected by the first respondents as set off to the quantum of damages is correct as the rent almost exactly matched the losses of the company from which rent was collected.

(5) The cross-appellants claim must fail because his Honour accepted the cross-defendants evidence which he is entitled to do, and that was redolent of reliance.