McCrohon v Harith [2010] NSWCA 67

New South Wales Court of Appeal

CITATION: McCrohon v Harith [2010] NSWCA 67

HEARING DATE(S): 4 November 2009

JUDGMENT DATE: 8 April 2010

JUDGMENT OF: McColl JA at 1; Campbell JA at 142; Handley AJA at 143

DECISION: 1. Appeal allowed with costs. 2. Order that order 1 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the respondents have judgment in the sum of $152,691.97 together with interest thereon from 20 March 2009 in accordance with section 101 of the Civil Procedure Act 2005 (NSW). 3. Order that order 2 of the orders made on 23 March 2009 by Smart AJ in the Court below be varied so that the appellants pay the respondents' costs in the Court below as agreed or assessed on the ordinary basis other than those costs incurred by the respondents in relation to the award of damages in the amount of $22,694 for the decrease in the respondents' party-party costs. 4. Cross-appeal dismissed with costs.

CATCHWORDS: CONTRACT – breach – damages – time for assessment – relevance of post-breach events - TORT – breach of duty of care – damages – time for assessment – relevance of post-breach events - FIDUCIARY DUTY – breach – equitable compensation – time of determination of quantum - DAMAGES – contract – tort – breach of fiduciary duty – whether innocent party entitled to choose most advantageous remedy - CONTRACT – breach – damages – deprivation of opportunity – standard of proof applicable where innocent party seeks to establish future possibilities and past hypothetical situations - CONTRACT – breach – damages – where evidence called by innocent party fails to provide rational foundation for proper estimate of damages - EVIDENCE – admissibility of evidence from innocent party as to conduct if breach of contract had not occurred – s 5D Civil Liability Act 2002 (NSW) - PROCEDURE – notice of appeal – status of amended notice of appeal filed without leave after judgment reserved - PROCEDURE – submissions – where limited leave granted to submit further submissions on certain points after judgment reserved – where further submissions exceed scope of leave granted without further leave applied for or given