Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26

New South Wales Court of Appeal

CITATION: Bonny Glen Pty Limited v Country Energy [2009] NSWCA 26

HEARING DATE(S): 3 February 2009

JUDGMENT DATE: 24 February 2009

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 87; Macfarlan JA at 88

(1) Appeal allowed. (2) Cross-appeal allowed. DECISION: (3) Order Country Energy to pay Bonny Glen's costs of the appeal. (4) Order Bonny Glen to pay Country Energy's costs of the cross-appeal, and Bonny Glen to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. (5) Judgment for Bonny Glen against Country Energy for $381,985.65 in lieu of $59,785.65, to take effect as at 31 August 2007. (6) Direct that there be written submissions as to the costs of the proceedings below, by Bonny Glen within 14 days, by Country Energy within a further 14 days, and any submissions strictly in reply within a further 7 days.

CATCHWORDS: TORTS – Negligence – Economic loss – Damage to property and independently-caused economic loss – Economic loss caused by action taken by plaintiff in response to situation created by defendant's negligence – Test of reasonableness – Whether loss of a kind that was foreseeable – Basis of calculation of damages. - PROCEDURE – Primary judge dismisses plaintiff's claim but determines quantum of damages – Plaintiff appeals – Defendant challenges quantum of damages – Whether cross-appeal is correct procedure.

LEGISLATION CITED: Supreme Court Act 1970, s 101 UCPR 51.2, 51.17, 51.40

CATEGORY: Principal judgment

Banco de Portugal v Waterlow and Sons Limited [1932] AC 452 Caltex Oil (Australia) Pty Limited v The Dredge Willemstad [1976] HCA 65; (1976) 136 CLR 529 Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159 CASES CITED: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Perre v Apand Pty Limited [1999] HCA 36; (1999) 198 CLR 180 Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 Tarabay v Leite [2008] NSWCA 759 Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627