Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1058

New South Wales Supreme Court

CITATION : Assafiri v The Shell Company of Australia Limited [2010] NSWSC 1058

HEARING DATE(S) : 16/08/10, 17/08/10, 18/08/10, 19/08/10, 23/09/10, 24/08/10, 25/08/10, 26/08/10

JUDGMENT DATE : 23 September 2010

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

DECISION : Mr Assafiri is entitled to damages for misleading or deceptive conduct and breach of contract, calculated in the manner set out at [217], [265] and [272]. Parties to bring in short minutes of order.

CATCHWORDS : CONTRACTS – construction of lease – where lease required lessee to deliver up land free of all improvements and to remediate land so that it could be put to its highest and best use – whether 'highest and best use then permitted under the zoning of the land' includes a lawful existing use – whether it includes potential attribute of subfloor excavation or basement – what was 'highest and best use' within meaning of lease – whether land was in condition such that lessee sufficiently complied with obligations under lease or later agreement – whether lessee provided lessor with independent expert certificate that lessee had complied with obligations under lease – whether any negligent misrepresentations made. - TRADE PRACTICES – whether lessee engaged in misleading or deceptive conduct – Trade Practices Act 1874 s 52. - DAMAGES – whether damages recoverable for misleading or deceptive conduct – whether damages recoverable for negligent misrepresentation – whether damages recoverable in respect of any breach of lease or later agreement – whether lessor failed to mitigate loss – remoteness of loss – nature and amount of any loss and damage suffered.

Contaminated Land Management Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW) LEGISLATION CITED : Environmental Planning and Assessment Regulation 2000 (NSW) Fairfield Local Environmental Plan 1994 State Environmental Planning Policy No. 55 – Remediation of Land Uniform Civil Procedure Rules