Gagner Pty Ltd trading as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413

New South Wales Court of Appeal

CITATION: Gagner Pty Ltd trading as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413

HEARING DATE(S): 2 October 2009

JUDGMENT DATE: 16 December 2009

JUDGMENT OF: Campbell JA at 1; Macfarlan JA at 165; Sackville AJA at 166

(1) Appeal allowed. (2) Set aside the judgment in the court below. (3) Direct the parties, within 14 days (excluding legal vacation) of the date of delivery of these reasons for judgment: (a) to provide to each judge hearing this appeal agreed short minutes of the orders necessary to give effect to these reasons for judgment, other than the order for costs; DECISION: (b) in the event that agreement is not possible, to provide to each judge hearing this appeal their respective written submissions about the orders that should be made to give effect to these reasons for judgment, other than concerning costs; (c) to file any evidence on which either seeks to rely bearing on the question of costs. (4) Direct the Appellant to provide to each judge, and to the Respondent, within 14 days (excluding legal vacation) of the date of delivery of these reasons for judgment, its written submissions about the costs orders that should be made. (5) Direct the Respondent, within 24 days (excluding legal vacation) of the date of delivery of these reasons for judgment, to provide to each judge and to the Appellant, its written submissions about costs. (6) Reserve further consideration of the orders appropriate to give effect to these reasons for judgment, and costs.

CATCHWORDS: DAMAGES – tort – negligence – damage to property – whether damages are payable if a plaintiff undertakes more extensive rectification work than was strictly necessary to make good the damage – whether rectification work was reasonable – whether award of damages was theoretical – application of Bellgrove v Eldridge (1954) 90 CLR 613 to tortious damage to property – DAMAGES – goods and services tax (GST) – whether an award of damages should include the amount of GST that is part of the price of goods and services acquired to make good the damage when the plaintiff is registered for GST purposes – role of ability to receive an input tax credit in deciding whether an allowance for GST should be included in damages – whether consistent with compensatory principle – TAXES AND DUTIES – goods and services tax (GST) – whether an award of damages should include the amount of GST that is part of the price of goods and services acquired to make good the damage when the plaintiff is registered for GST purposes – role of ability to receive an input tax credit in deciding whether an allowance for GST should be included in damages – whether award of damages for tortious damage to property is itself subject to GST