Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163

New South Wales Court of Appeal

CITATION: Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163

HEARING DATE(S): 12 October 2004

JUDGMENT DATE: 17 May 2005

JUDGMENT OF: Tobias JA; McColl JA; McClellan AJA

DECISION: (1) Appeal allowed; (2) Set aside the verdict and orders of Delaney DCJ entered and made on 24 October 2003 and in lieu thereof enter judgment for the appellant; (3) Order that the respondent pay the appellant's costs of the proceedings in the District Court and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: DAMAGES - Assessment of damages - Damages for loss of a chance or opportunity - Doctor contracted to have his details listed in Yellow Pages - Details not listed in breach of contract and in breach of implied warranty in contract pursuant to Trade Practices Act 1974 s 74 - Claimed damages for loss of opportunity to increase growth of practice - Whether doctor had lost "an opportunity of real value" as a consequence of the breach - Assessment of the value of a lost opportunity

LEGISLATION CITED: Trade Practices Act 1974

Carolan v AMF Bowling Pty Limited t/as Bennetts Green Bowl (Unreported, Supreme Court of New South Wales, Court of Appeal, Kirby P, Sheller and Cole JJA, 16 November 1995) Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 CASES CITED: Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Daniels v Anderson (1995) 37 NSWLR 438

Sensis Pty Limited PARTIES: Roger McMaster-Fay

FILE NUMBER(S): CA 40129/03

A: M R Elliott COUNSEL: R: J S Drummond

A: Mallesons Stephen Jaques, Sydney SOLICITORS: R: Bateman Batters, Penrith