LM Investment Management Limited (In Liquidation) (Receivers appointed) v BMT & Assoc Pty Limited [2015] NSWSC 1902

Supreme Court New South Wales

Medium Neutral Citation: LM Investment Management Limited (In Liquidation) (Receivers appointed) v BMT & Assoc Pty Limited [2015] NSWSC 1902 Hearing dates: 2 to 4 November 2015, 7 and 9 December 2015 Decision date: 18 December 2015 Before: Ball J Decision: See paragraphs 92 and 93 of this judgment. Catchwords: BUILDING AND CONSTRUCTION – claims by lender against firm of expert quantity surveyors in contract, tort and Trade Practices Act 1974 (Cth) s 52 – implied contractual obligation to provide services with reasonable care and skill – alleged duty of care in relation to economic loss caused by negligent valuation of works

TORTS – negligence – apportionment of responsibility and damages – whether claim apportionable – whether the borrower was a concurrent wrongdoer within meaning of the Civil Liability Act 2002 (NSW) s 34 – whether plaintiff guilty of contributory negligence

DAMAGES – measure and remoteness of damages in actions for tort – remoteness and causation – where money advanced by lender on the basis of negligent valuation and misleading or deceptive conduct – lender entitled to recover difference between what was lent and what would have been lent had defendant's wrongful conduct not Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 Kenny & Good Pty Limited v MGICA (1992) Limited [1999] HCA 25; (1999) 199 CLR 413 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 Category: Principal judgment Parties: LM Investment Management Limited ACN 077 208 461 (In Liquidation) (Receivers appointed) (First Plaintiff) The Trust Company (PTAL) Limited ACN 008 412 913 (Second Plaintiff) BMT & Assoc Pty Limited ACN 079 247 751 (Defendant) Representation: Counsel: MLD Einfeld QC with SE Gray (Plaintiffs) FP Hicks with VN Misra (Defendant)