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  4. Interchase Corporation Limited v ACN 010 087 573 Pty Ltd - [2001] QCA 191

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Interchase Corporation Limited v ACN 010 087 573 Pty Ltd[2001] QCA 191

Reported at [2003] 1 Qd R 26

Interchase Corporation Limited v ACN 010 087 573 Pty Ltd[2001] QCA 191

Reported at [2003] 1 Qd R 26

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Interchase Corporation Limited v ACN 010 087 573 Pty Ltd & Ors [2001] QCA 191

PARTIES:

INTERCHASE CORPORATION LIMITED
ACN 010663993
(plaintiff/respondent)
v
ACN 010 087 573 PTY LTD (formerly known as COLLIERS JARDINE (QLD) PTY LTD)
(first defendant)
MICHAEL GEORGE TIDBOLD
(second defendant)
GROSVENOR HILL (QUEENSLAND) PTY LTD (formerly known as HILLIER PARKER (QUEENSLAND) PTY LTD) ACN 009882142
(third defendant/first appellant)
BRIAN MOFFAT WAGHORN
(fourth defendant/second appellant

FILE NO/S:

CA No 4273 of 2000

CA No 6267 of 2000

CA No 6268 of 2000

SC No 520 of 1994

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14-16 February 2001

JUDGES:

McMurdo P, McPherson and Thomas JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1.Appeal no 4273 of  2000 against the judgment given on 18 April 2000 dismissed with costs.

2.Appeal no 6267 of 2000 against the judgment given on 23 June 2000 and 28 June 2000 dismissed with costs including reserved costs.

3.Appeal no 6268 of 2000 against the judgment given on 23 June 2000 dismissed with costs including reserved costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AFFECTING PARTICULAR PROFESSIONS OR OCCUPATIONS – Valuers - where the price of a contract was to be determined by the average of two valuations to be performed by valuers who were not parties to the contract – whether the valuers could be held liable for negligence

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMISSIONS

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – whether the conduct of the plaintiff had contributed to the resulting loss

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – whether damages assessed by the trial judge were excessive

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY

INTEREST – RATE OF INTEREST AND COMPOUND INTEREST – RATE IN OTHER CASES – whether the trial judge’s assessment of interest was correct

Supreme Court Act 1995 (Qld), s 47

Arenson v Arenson [1977] AC 405, followed

Bily v Arthur Young & Co (1992) 834 P 2d 745, distinguished

BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221, considered

Bushwall Properties Ltd v Vortex Properties Ltd [1975] 1 WLR 1649, considered

Cann v Willson (1888) 39 Ch D 39, considered

Colbert v Beard [1992] 2 Qd R 67, considered

Credit Alliance v Arthur Anderson & Co (1985) 483 NE 3d 110, considered

Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241, considered

Finnegan v Allen [1943] KB 425, distinguished

Glanzer v Shepard (1922) 233 NY 236; 135 NE 275, followed

Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 155, distinguished

Gould v Vaggelas (1985) 157 CLR 215, considered

Haines v Bendall (1991) 172 CLR 60, applied

Hedley Byrne & Co v Heller & Partners [1964] AC 465, applied

Hill v Van Erp (1997) 188 CLR 159, considered

Holt v Cox (1997) 23 ACSR 590, considered

Jenkins v Betham (1855) 15 CB 168, considered

Kemp v John Fairfax & Sons Pty Ltd (1952) 69 WN (NSW) 328, distinguished

Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901, followed

Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, followed

Lister v Romford Ice & Cold Storage Ltd [1957] AC 555, considered

Mutual Life & Citizens Assurance Co v Evatt (1968) 122 CLR 556, considered

Reid Hewitt & Co v Joseph [1918] AC 717, considered

Serisier Investments Pty Limited v English [1989] 1 Qd R 678, followed

Ultramares Corporation v Touche (1931) 174 NE 441, considered

Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, distinguished

Wylie v The ANI Corporation Limited [2000] QCA 314, Appeal No 4092 of 1999, 4 August 2000, considered

COUNSEL:

D B Fraser, with T W Quinn for the appellants

D Jackson, with J McKenna and K Barlow for the respondent

SOLICITORS:

Ebsworth & Ebsworth for the appellants

Allen Allen and Hemsley for the respondent

  1. McMURDO P: I have read the reasons for judgment of McPherson JA in which the relevant facts and issues are set out. 
  1. The appellant, Hillier Parker, owed the respondent, Interchase Corporation Limited, a duty of care and on the facts found by the learned primary judge, which were open on the evidence, the appellant breached that duty, causing the respondent to suffer loss.
  1. The discrepancies identified by the appellant between the letter of retainer sent to Hillier Parker and cl 14.1 of the Development Agreement entered into between the respondent and Property Estates Queensland Pty Limited were inconsequential in the scheme of things; the valuation supplied by the appellant was a valuation under cl 14.1 of the Development Agreement. Having been informed of the purpose of the valuation, any successful disclaimer would have to be in the clearest of terms; the disclaimer did not relieve the appellant of its liability in this case. I agree that the appellant's appeal against liability must fail.
  1. The appeal against quantum and against the finding that the respondent was not contributorily negligent must also fail.
  1. The appeal against the learned primary judge's award as to interest is without substance. In determining the appropriate simple interest rate, the learned primary judge did not err by taking into account commercial rates which are compound rates; this does not offend s 47(3)(a) of the Supreme Court Act 1995.  Nor did the learned primary judge err in taking into account the applicable interest rates in Schedule J of the New South Wales Supreme Court Rules as one relevant factor in determining the appropriate interest rate in this case.
  1. The costs order that the appellant, Hillier Parker, pay the respondent's costs of and incidental to the proceedings against Hillier Parker was appropriate; it leaves to the registrar to consider all relevant matters, including the defence on quantum by Colliers Jardine Pty Ltd, in assessing the precise amount of costs payable by Hillier Parker under that order.
  1. Nor was there any judicial error in the learned primary judge's refusal to make an order as to the costs of the appellant/fourth defendant, Mr Waghorn, who was successful at trial.
  1. Subject to the following brief observations, I agree with the reasons of McPherson JA in reaching all these conclusions and have nothing I wish to add.
  1. Like McPherson JA, I am not presently finally persuaded that Williams v Natural Life Health Foods Ltd[1] correctly states the law in Queensland as to whether employed professionals are personally liable for their professional work as an employee.  Of course, each case will invariably turn largely on its own facts.  The separate but perhaps related issue of whether the contract of employment ordinarily implies a term that an employee will carry out the employment with due care and skill was recently considered and answered affirmatively by this Court in Wylie v The ANI Corporation Limited.[2]  But nor am I convinced that Lister v Romford Ice & Cold Storage[3] accurately reflects the law in Queensland in the 21st century as to whether an employer who is vicariously liable may recover indemnity against an employee for breach of the implied term of the contract of employment that an employee will carry out the employment with due care and skill: see Wylie.[4]  As there was no appeal on this question, it is unnecessary to further consider it here.
  1. I agree with the orders proposed by McPherson JA as to the three appeals.
  1. McPHERSON JA: Broadly stated, this appeal concerns the common law liability in tort of valuers for negligent valuation. The principal issues can, I think, be adequately considered here without referring to much of the detailed evidence canvassed in the comprehensive reasons of the learned trial judge.  The appeal is brought by the third defendant, conveniently referred to as Hillier Parker, against a judgment for $12,278,642, which with the addition of interest from 21 July 1988 until judgment on 19 April 2000, came to a total of $28,416,477, in favour of the plaintiff Interchase Corporation Limited. There is a second appeal by Hillier Parker and another by the fourth defendant Brian Waghorn, both brought by leave against a further order or orders made on 23 and 28 June 2000, which disposed of the costs of the action.  The appeals were by consent heard together.
  1. The valuations in question were prepared and delivered by the first defendant Colliers Jardine, acting by its employee Michael Tidbold, who is the second defendant; and by the third defendant Hillier Parker acting by its employee the fourth defendant Brian Waghorn. Before the trial of the action, interlocutory judgment was by consent entered against the defendants Colliers Jardine and Tidbold with damages to be assessed, which at the trial were determined against Colliers Jardine in the sum of $13,528,642 and interest. They took no active part in the appeal. The trial proceeded against the third defendants Hillier Parker and Waghorn; and the claim against Waghorn was dismissed. His appeal is confined to the order denying him his costs of the action.
  1. Both valuations were of the retail shopping centre located in the Queen Street Mall in Brisbane's inner city and known as the Myer Centre. At the time when the relevant events began unfolding in May 1987, freehold title to the land on which the Myer Centre was being constructed was already registered in the name of the plaintiff Interchase. It was a publicly listed company, now in liquidation, which was floated in July 1987, and which, with Property Estates Limited ("PEL") and Property Estates (Qld) Pty Limited ("PEQ"), were all members of the Chase Group, of which Chase Corporation (Australia) Pty Ltd ("CCA") was the holding company. PEQ was a wholly owned subsidiary of PEL, which in turn was a wholly owned subsidiary of CCA. It also owned 52% of the issued share capital of Interchase.
  1. On 7 May 1987 Interchase as the "Proprietor" entered into a written contract, described as the Development Agreement, with PEQ as the "Developer", together with PEL ("Property Estates") and CCA, which was designated in the contract as Chase Australia. The purpose of the contract was to transfer from Interchase to PEQ responsibility, including existing contracts, for completing the construction and fitting out of the Myer Centre and filling it with trading tenants by the completion date. In return for PEQ's assuming and carrying out those functions, Interchase was to pay as the "Development Sum" an amount of $360 million, which was to be adjusted in accordance with cll 10A.1 and 10A.2 of the contract. Those two provisions, which are headed Development Sum - Calculation, are as follows:

"10A.1If the Completion Valuation Amount is less than $425,000,000 the Development Sum shall be reduced by an amount equal to the difference between $425,000,000 and the Completion Valuation Amount.

10A.2If the Completion Valuation Amount is greater than $425,000,000 the Development Sum shall be increased by an amount equal to twenty five percent (25%) of the difference between $425,000,000 and the Completion Valuation amount."

By cl 1.1 of the contract, Completion Valuation Amount was defined to mean:

"the average of the amounts which according to the Completion Date Valuations are the value of the Centre as at the Date of Practical Completion."

  1. The Completion Date Valuations meant the valuations obtained pursuant to cl 14 of the contract.  Clause 14 of the contract was in the following terms:

"14.1Each of Developer and Proprietor a reasonable time before the anticipated Date of Practical Completion shall commission a Qualified Valuer (hereinafter called "the Valuers") to determine the market value of the Centre as at the Date of Practical Completion. Each Valuer in carrying out such valuation may if he considers it appropriate have regard to the Rental Guarantee contained in clause 13 hereof and to any transfer of ownership to financiers which Proprietor may have made in respect of any plant and equipment therein and to Myer's rights under clause 36.1 of the Myer Lease Agreement.

14.2Each party shall bear the whole of the cost of the valuation so commissioned by it.

14.3Each of Proprietor and Developer shall furnish both Valuers with all information which either Valuer considers relevant to its valuation.

14.4Each of Proprietor and Developer shall direct the Valuer commissioned by it to send a copy of its Valuation direct to the other party."

In return for payment of the adjusted Development Sum, the Developer PEQ was to deliver possession of the completed Centre: cll 2.2.1 and 2.2.16. By the Rental Guarantee contained in cl 13 PEQ guaranteed that the net income from the Centre in the first year of trading would not be less than $32.9 million.

  1. The reason for adopting this method of fixing the Development Sum was no doubt related to the fact that the Proprietor Interchase and the Developer PEQ were members of the same group of companies. If public suspicions about the integrity of a group intercompany transaction like that were not to be excited, it was essential that the amount of the Development Sum that was to be paid by Interchase should be, and be seen to have been, arrived at in an independent and impartial manner. Hence the provision in cl 14 for ascertaining the sum payable by obtaining two separate valuations and averaging their amounts under cl 1.1. Having first received fee quotations from the valuers, separate retainer letters, dated 14 April 1988, which it was agreed would be drafted in similar terms, were sent by PEL on behalf of PEQ to Hillier Parker and by Interchase to Colliers Jardine appointing each of them to carry out a valuation of the Centre. The basis of the valuation as stated in those letters was to be the full market value of the freehold property at the date of practical completion of the development expected in mid-April 1988. Further, in carrying out the valuation, all leases "in place" were to be taken into account, and "all deals" done between valuation and completion of the valuer's report, as well as a guarantee from the holding company CCA to Interchase that net income in the first year would be at least $32.9 million. The letters contained an assurance that specified information and documents would be furnished to the valuers, and various documents, including what was called a leverage lease, were enclosed.
  1. On 17 May 1988 a letter of valuation (ex 36) was delivered by Waghorn of Hillier Parker to Mr Burgess, the Queensland manager of PEL, who passed it on to Mr Ryan, who was the managing director of Interchase. Subject to the valuation report, which followed and confirmed it on 8 July (ex 2), the Myer Centre was valued by Hillier Parker at practical completion at a figure of $490 million. On the following day a letter (ex 37) was delivered by Colliers Jardine valuing the property at $500 million. It too was confirmed by their ensuing valuation report dated 15 July 1988 (ex 70). The effect of the contractual provisions referred to was to average the two values of $490 million and $500 million to a mean of $495 million, which then became the Completion Valuation Amount as defined in cl 1.1. Because that Amount was more than the sum of $425 million referred to in cl 10A.2, the provisions of that clause operated to increase the Development Sum by 25% of the difference ($70 million) between $425 million and $495 million, which produced an increase of $17.5 million. Adding that amount under cl 10A.2 to the base figure of $360 million resulted in an adjusted Development Sum payable by Interchase under the contract of $377.50 million. Taken with sums already pre‑paid "on account", the full amount together with some interest was paid by Interchase in the period that followed.
  1. The amount of $17.5 million, of which some $10.45 million had been prepaid before completion, formed one ingredient in the loss claimed to have been suffered by Interchase and it paid full amounts in instalments during the period to 10 October 1988. If the defendants had not been negligent in their valuations, as Hillier Parker was found to have been, the plaintiff would not have become liable to pay any additional amount under cl 10A.2. That sum was, however, only part of the loss it claimed to have suffered through the defendants' negligent valuations. Extensive evidence was adduced at the trial about the value of the Myer Centre at completion date and of the negligence of Hillier Parker in arriving at the valuation figure of $490 million. Including Mr Waghorn himself, no fewer than six valuers were called by the defendants. In the end, however, the learned trial judge preferred the evidence of a Mr Brian Cox, which was that, properly assessed, the value of the Centre at the time in question was $380 million.
  1. While accepting his evidence and conclusions generally, her Honour nevertheless considered that, in some particulars, his valuation was unduly conservative or pessimistic. Using Mr Cox's valuation as a foundation, but making certain upward adjustments to it, the learned trial judge arrived at a figure of $410 million as the amount which ought to have been determined to be the value of the Centre by a reasonably skilled and careful valuer in mid-1988. That figure fell well short of the Completion Valuation Amount of $495 million on the basis of which the contract had been settled. If the Amount had been $410 million, it would have brought into operation the provisions of cl 10A.1 of the contract by which the Development Sum was to have been reduced by an amount equal to the difference between $410 million and $425 million. Instead, therefore, of having had to pay more, as it did, to complete the contract, Interchase would have had to pay considerably less, and so would have been entitled to a refund of some millions of dollars. Making allowance for the fact that much of it would not have been readily recoverable or recovered from PEQ or on guarantees from other members of the increasingly insolvent Group as they were becoming, the learned trial judge severely discounted it before dividing it to reflect the proportion in which the first and third defendants' valuations had combined to produce the loss. It was on that footing that the amount of $28,416,477 million including interest, for which judgment was entered against Hillier Parker was arrived at.
  1. Her Honour's finding of negligence against Hillier Parker has not been challenged on appeal, nor, except in certain limited respects, has her acceptance of the expert evidence of Mr Cox as the starting point for her conclusion about the value of the Myer Centre. The figure she reached of $410 million, or the steps by which she arrived at it, are disputed; but assuming the correctness of that figure, her method of calculating the amount of damages is accepted, and was in fact agreed by counsel at the trial and on appeal. Some complaint was made by Hillier Parker that the amount awarded was appropriate only to a contractual measure of damages, whereas the liability, if any, of Hillier Parker was in tort, and so confined to damages assessed on a restitutionary basis. But, while the correctness of the underlying legal principle is not in doubt, the complaint that the award somehow offended it is misconceived. What Interchase was compensated for was not any loss of profit or other advantages it might have expected to receive if the valuations had been correct, but simply the disbursements or outlays that it made in consequence of the defendants' negligence. Had the Hillier Parker valuation not been negligently fixed above the $425 million mark, the provisions of cl 10A2 of the contract would not have been activated, and on completion Interchase would not have paid as much as it did; on the contrary, it would have been entitled to and, as the learned judge found, would have received something back from PEQ as a refund. To the extent that, through the negligence of the defendant, this did not happen, Interchase was left out of pocket and so was entitled to look to Hillier Parker to restore it to the position it would have been in had there been no negligence. Interchase has never suggested that Hillier Parker had contracted to bring in a valuation at $425 million, or that the damages it claimed were to be assessed on any such basis.
  1. The principal question on appeal is whether Hillier Parker owed a common law duty of care to Interchase. Valuers, appraisers, surveyors and the like belong to a class whose business it is to give professional opinions or advice. Opinions about a matter as intangible and (dare one say) evanescent as market value are always likely to be contentious especially during periods of fluctuating economic conditions. As a result, in cases where their valuations serve to fix the price or consideration to be paid by one contracting party to another, they are, as has been said, liable to be "shot at by both sides": Arenson v Arenson [1977] AC 405, 418. Partly for that reason, a somewhat wider margin of error is permitted them before they are found to have been negligent in valuing the subject matter: see Holt v Cox (1997) 23 ACSR 590, 596 (Mason P, with whom Priestley JA agreed). For some time, indeed, they were regarded by the courts as legally immune from claims by either party for negligence in performing what was said to be the quasi-arbitral or quasi-judicial function of solving by their valuation a dispute or difference between the parties. See Finnegan v Allen [1943] KB 425. Whether any such immunity prevails when a valuer is appointed to arbitrate a genuine dispute about value does not fall to be considered here. Between Interchase and PEL in mid-1988 there was no pre-existing "dispute" about the value of the Myer Centre that was capable of being submitted to arbitration. See Re Carus-Wilson and Greene (1886) 18 QBD 7; and (1986) 60 ALJ 8, at 9-10, to which an immodest reference may be not impermissible. The decision in Finnegan v Allen was followed by Kemp v John Fairfax & Sons Pty Ltd (1952) 69 WN (NSW) 328 in circumstances resembling those here; but where as in this instance valuers are retained to determine the market value of a subject matter for the purpose of fixing the price, those decisions can no longer be considered good law in the light of the more recent decision of the House of Lords in Arenson v Arenson [1977] AC 405. The reasoning of their Lordships in that case is, to my mind, persuasive, and, so far as Queensland is concerned, Finnegan v Allen [1943] KB 425 and other decisions in that tradition should not be followed here. Indeed, that view of the law now seems to have been accepted in New South Wales: see Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, 335 (McHugh J).
  1. Starting with the decision of the Exchequer Court in Jenkins v Betham (1855) 15 CB 168; 139 ER 384, if not before it, valuers have at the suit of the party who retained them been held legally liable for negligently carrying out their valuations. That was a case in which an incoming rector, who was to receive from the outgoing  incumbent (or his estate) compensation for dilapidations to the rectory, was held to be entitled to recover damages from the defendant who had negligently valued the dilapidations on a wrong basis. It resembled the matter before us in that the amount of compensation was arrived at in conjunction with another firm of valuers or surveyors retained by the outgoing rector, but differs from it in that the defendant in Jenkins v Betham was the valuer retained by the plaintiff himself. Whether, in the absence of a contract, the other valuers could also have been successfully sued by the plaintiff was an experiment which, in the days before Hedley Byrne & Co v Heller & Partners [1964] AC 465 recognised a tort of negligently causing economic loss, few were bold enough to try. In England, the first successful claim of any such kind was made in Cann v Willson (1888) 39 Ch D 39 against a valuer engaged by an intending mortgagor, on the faith of whose negligent valuation the mortgagee made a loan, which proved not to be recoverable. The decision of Chitty J in that case suffered a series of vicissitudes. It was overruled in Le Lievre v Gould [1893] 1 QB 491, only to be resurrected in Lord Denning's dissenting judgment in Candler v Crane Christmas & Co [1951] 1 KB 164, 181‑182, and finally restored to authority in Hedley Byrne & Co v Heller & Partners [1964] AC 465, 488, 500, 509, 523, 535, where the reasoning in Le Lievre v Gould was in its turn disapproved in the House of Lords.
  1. The decision in Cann v Wilson squarely raised the issue of liability for negligence independently of contract; but it was not one where the valuer had been engaged to fix the price between parties. In the meantime, however, the question had crossed the Atlantic to New York, where in Glanzer v Shepard (1922) 233 NY 236; 135 NE 275, the operator of a public scale was held liable for negligence in providing to the buyers of some bags of beans, at the request of the seller who employed him, a certificate of weight that was inaccurate and caused loss to the buyers, who bought the beans by weight and paid for them on the faith of the correctness of the certificate. Only a few years later, and in apprehension of creating a potential liability for negligent misstatements "in an indeterminate amount for an indeterminate time to an indeterminate class", the decision was reconsidered by the same Court and its reasoning restricted in Ultramares Corporation v Touche (1931) 174 NE 441.
  1. In distinguishing the position of the defendant auditor in the latter case, Cardozo CJ explained that delivering the weighing certificate to the buyer in Glanzer v Shephard was not merely one possibility among many, "but the end and aim of the transaction" which, his Honour said, was as "certain and immediate and deliberately willed" as the making of a contract that would benefit another (174 NE 441, 445). In subsequent cases involving liability of company auditors for negligence in passing published accounts, in reliance on which investors and others have acted to their detriment, appellate courts in New York and California have required something "equivalent to contract" as a prerequisite to recovery; and the element of foreseeability of, or injury to, the potential plaintiff has been held in California to be "but one factor to be considered in the imposition of negligence liability": Bily v Arthur Young & Co (1992) 834 P 2d 745, 761-762. In delivering the reasoning of the California Supreme Court in that case, Lucas CJ referred with approval (834 P 2d 745, 754) to an earlier statement of the New York Court of Appeals in Credit Alliance v Arthur Anderson & Co (1985) 483 NE 2d 110, 118, holding it to be a prerequisite in determining auditor liability to third parties for negligence that:

"(1)the accountant must be aware that the financial reports were to be used for a particular purpose or purposes; (2)  in furtherance of which a known party or parties was intended to rely; and (3)  there must be some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that parties' reliance."

By this means the presence of "linking conduct" has now assumed some significance as one of the possible criteria for imposing a duty of care in such cases. The associated idea that, for duty of care to arise, the relationship must be "equivalent to contract", was accepted by Lord Devlin as far back as Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465, 530.

  1. In Australia the approach to liability for negligent misstatement in the absence of a contractual relationship between the parties has proceeded along somewhat similar lines. Liability for economic loss, in the absence of physical lesion by the defendant to the plaintiff or his property, is a recognised form of tort. See Caltex Oil Australia Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529; Perre v Apand (1999) 198 CLR 180.  The negligent act giving rise to it may consist of a statement, a representation or advice that is false or wrong: see Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556, 572-573, adopted in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340, at 355-356, 371-372. But mere foresight that a member of an unascertained class might rely on it and thereby suffer loss is by itself not sufficient. See Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241. In every case, it is, according to Brennan CJ, necessary to establish that the maker of the statement knew or ought reasonably to have known that it would be communicated to the plaintiff, either individually or as a member of an identified class; that it would be "very likely" to lead the plaintiff to enter into a transaction of the kind in question; and "very likely" that the plaintiff would do so in reliance on the information or advice, and thereby risk incurring economic loss if the statement was untrue or the advice unsound: Esanda v Peat Marwick. In the same case, Gummow J, in the course of reviewing the American authorities went some way to recognising that the reasoning in Bily v Arthur Young & Co (1992) 834 P 2d 745 offered assistance in resolving the issues in the Esanda case (188 CLR 241, 307); and, although McHugh J was perhaps less enthusiastic (188 CLR 241, 280), both his Honour and Gummow J have since referred with evident approval to "equivalent to contract" in describing the source of the duty owed by a valuer to a financier with whom he was not in contractual relations but whom he expected would rely on his opinion. See Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901, 911, 917-918. Not long before, in Hill v Van Erp (1997) 188 CLR 159, 233-234, Gummow J had also referred with favour  to the concept of "linking conduct" adopted in the California decision.
  1. If some concept such as linking conduct or contractual equivalence is adopted here, Interchase has firm ground on which to base its claim for damages against Hillier Parker for their negligent valuation of the Myer Centre in 1988. Interchase was not simply one person among many who could possibly be foreseen as likely to act on the defendants' valuations. It was one of only two who were directly and immediately affected by delivery and receipt of the valuation. Although Mr Waghorn was avowedly not conversant with the precise terms of the Development Agreement entered into on 7 May 1987, he was, her Honour found, "fully aware of the purpose of the valuation when Hillier Parker was retained in April 1988".  There is no reason for doubting the correctness of this finding. Although at the trial Mr Waghorn was at first disposed to dispute the extent of his knowledge, he was confronted with sworn answers given by him on an earlier occasion. In 1993 he had been publicly examined in the liquidation of Interchase, when he admitted he was aware of the purpose for which the valuation was wanted; that Colliers Jardine was doing a valuation as well; and that the purpose was to arrive at an average of the two valuations, so as to fix "the amount of the bonus, as it were, to be paid to the builder". As Mr Waghorn also acknowledged, he knew that was so when he began work on the valuation, even if it was only later that he discovered that the other valuer was Colliers Jardine. In rejecting his denials, the learned trial judge observed:

"The Hillier Parker files were replete with detailed information about the Development Agreement and its terms for fixing the Development Sum … These are all documents which it can be readily inferred Mr Waghorn would have read when commencing work on The Myer Centre valuation for November 1987. His knowledge is Hillier Parker's knowledge … but other senior members of the firm certainly were aware of the purpose of the valuation."

  1. With these findings undisturbed, I do not think it necessary to analyse in further detail the principles enunciated in Bily v Arthur Young & Co concerning the liability of auditors and accountants. The present case is not one in which Hillier Parker or the other defendants are charged with having made a statement to a class of persons knowing that some of them would or might be likely to rely on it and suffer loss if it was incorrect. The duty of care alleged by the plaintiff in these proceedings is of a much more direct character than is commonly encountered in cases involving negligent opinions or advice on which someone has chosen to act. That is so because it was the very act of the defendants in delivering their valuations that directly affected and altered the legal rights and duties of the parties to the Development Agreement. It did so by bringing them into binding contractual relations with each other. The process by which this takes place was explained by Fullagar J in a passage in his reasons for judgment in Hall v Busst (1960) 104 CLR 206. Having said that in a contract for the sale of land and improvements, there could not be a binding contract unless three essential elements were the subjects of concluded agreement, his Honour went on (104 CLR 206, 222):

"The three essential elements are the parties, the subject matter and the price. If, but only if, these are fixed with certainty, the law will supply the rest.  When it is said that the price must be fixed with certainty, it is not, of course, meant that it must be fixed at a specified figure.  It will be sufficient if the sale is for a price or value fixed by a name or described person. In such a case, if the named or described person dies or cannot or will not fix the price or value, the contract cannot, as a general rule, be enforced, but, if and when he does fix the price or value, there is a concluded contract".

  1. Those principles apply here. Interchase was already the proprietor of the Myer Centre at the time the contract was entered into, so that the Development Agreement was not in terms a sale of land. It is more accurate to describe it as a contract for the delivery of possession of land in an improved and fully developed condition in exchange for payment of an amount to be fixed. See cl 2.2.1. What was left unspecified was the precise amount that was to be paid for its delivery in that condition. The procedure for ascertaining it is set out in the provisions for valuing the subject matter contained in cll 14, 10A.1 and 10A.2, read with the definitions in cl 1.1 of the Development Agreement. Before that procedure was carried out, there was no concluded contract, or at any rate none that was immediately enforceable without something in the nature of a declaration or an order for specific performance: Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, 606. On receipt of the valuations, the contract was at once completely concluded and the parties were, without further action on their part, legally bound by its terms. If, in this context, the metaphor of "linking conduct" is helpful, the valuations were the final link which, when supplied, forged the contractual chain between the parties to the Development Agreement.
  1. No more direct or immediate link in terms of foreseeability or otherwise can readily be imagined than that between these valuers and the parties who engaged them to carry out their valuations. It was not that each party was to obtain independently of the other a valuation that either might choose to consider, exchange, and act upon in arriving at the adjusted Development Sum. On the contrary, each was bound by cl 14 of the contract to obtain a valuation and deliver it to the other. Once delivered, the valuations operated of their own force under the contract to fix the price or Development Sum. By that means (which the respondents in their written outline described as "automatic crystallisation") Interchase became forthwith bound to pay PEQ the amount of the adjusted Development Sum which the combined negligence of Colliers Jardine and of Hillier Parker had contributed to fixing at $495 million.
  1. Judged by the criterion of "contractual equivalence", the transaction came about as close as can be to a contract without being one in fact or in law. The parties jointly chose the two valuers from a list and it seems to have been largely a matter of chance that Hillier Parker, which had previously valued the Myer Centre in 1986 and 1987, was allocated to PEQ and Colliers Jardine to Interchase rather than vice versa. Their fees were shared by the parties, who engaged them under retainers which it was agreed would be in the same terms. They were each to deliver copies of their individual valuations to the other party. From the outset, they, or certainly Hillier Parker, knew what the purpose and the consequences of their doing so would be. The arrangement resembled that in Glanzer v Shephard, with this difference that, unlike the buyer in that case, no additional act or element of reliance on the valuation was needed for Interchase to be affected by the defendants' negligence.  If Glanzer v Shephard is good law, as it is widely considered to be, then Hillier Parker, although not in direct contractual relations with Interchase, owed it a duty of care.
  1. Turning to specific authority, there are judicial statements and decisions in Australia that support the existence of a duty. In Holt v Cox (1997) 23 ACSR 590, 596, Mason P and Priestley JA accepted that the expert who negligently determines a valuation will be held liable in damages to the party suffering loss in consequence of the expert's valuation. In Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, 315, McHugh JA considered it "now settled" by Sutcliffe v Thackrah [1974] AC 727 and Arenson v Arenson [1977] AC 405 that "an action for damages for negligence will lie against a valuer to whom the parties have referred the question of valuation if one of them suffers a loss as the result of his negligent valuation". The decision of Wootten J in B.T. Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 is to that effect. There the successful plaintiffs were, as trustees for others, unit holders in a trust who suffered losses in consequence of the defendant's negligent valuation of the units. Although having no contract with the defendant, they recovered damages for breach of the common duty of care.  The decision in Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 73 ALJR 901 (affirming 77 FCR 307 (Full Court), and  Lindgren J in 130 ALJR 313) was given in favour of a financier who, in reliance on the defendant's negligent over-valuation, had lent too much on the security of residential land at Hunters Hill. In the High Court, liability was conceded; but, in analysing the measure of damages, Gaudron J (at 905-906), McHugh J (at 911), and Gummow J (at 917-918), all regarded the valuer as being liable in negligence for the resulting loss. The case was one of reliance, in which the plaintiff's task of establishing a duty of care was simplified by an express invitation from the valuer to rely on the valuation; but the decision stands as authority that, apart from any binding contractual relationship between the parties, there may be liability on the part of a valuer for loss caused by a negligent valuation. Expressing it in another way, the interest of Interchase in receiving a careful valuation of the subject matter is one that is protected by the law of tort.
  1. I therefore agree with the learned trial judge that, in the circumstances disclosed here, Hillier Parker came under a duty to exercise reasonable care in their valuation of the Myer Centre for the breach of which they were liable in damages to Interchase. This is, of course, subject to Hillier Parker's other defences to the claim against them. Broadly described, the first main submission is that the valuation delivered by Hiller Parker did not comply with the requirements of the Development Agreement and so was not capable of giving rise to a duty of care. In this context, it is to be recalled that the plaintiff's case is presented not as one of "reliance" on a valuation, but on the footing that the valuations, having on delivery the effect ascribed to them by the Development Agreement of obliging Interchase to pay the additional amount on completion, took immediate effect to the detriment and loss of Interchase by binding it to do so. Placing heavy emphasis on the allegations in paras 11 and 22 of the plaintiff's amended statement of claim that Hillier Parker had been retained as one of the valuers to provide a completion date valuation "pursuant to clause 14" of the Development Agreement, the defendants submitted that no such valuation had been delivered. The nature and detail of what was comprehended by the defence was not, as it should have been, specifically pleaded but concealed under bare denials or non-admissions in the defence. However, as it was developed at the trial and on appeal, Hillier Parker relied on a series of alleged "disconformities" between, on one hand, provisions and requirements of the Development Agreement and, on the other, of the retainers given to the defendants by the contracting parties. As a consequence, it is said, what they had produced were not valuations under or "pursuant to" the Development Agreement.
  1. The first of the alleged disconformities is that cl 14.1 called for each of the Developer (PEQ) and the Proprietor (PEL) to commission a qualified valuer to determine the market value of the Centre at the Date of Practical Completion. Having regard to this provision, Hillier Parker argues that it is fatal to their valuation that the letter of retainer they received was sent by PEL and not by PEQ. It was, however, plainly open to PEQ with the assent of Interchase to send its own retainer to Hillier Parker by PEL as its agent, and the trial judge found that that was what it had done. Given that PEQ was a wholly owned subsidiary of PEL with a common board of directors and the same Brisbane office, the inference is compelling that it was in fact the arrangement made. All of the parties were co‑operating in obtaining independent valuations for the purpose of closing the contract and none of them was aiming to scuttle it.
  1. The second disconformity alleged was that cl 14.1 of the Development Agreement required the valuers to be commissioned to determine market value "at the date of practical completion", but that neither of them was retained to do so by reference to a specific date. Each of the letters of retainer directed them in terms to value "as at the date of practical completion" without identifying it, beyond saying that the date would be advised and was expected to be "prior to mid-April 1988". From the standpoint of the terms of cl 14.1, there was nothing wrong with that. In fact the date of actual completion turned out to be 18 April 1988, which was advised to Colliers Jardine but not to Hillier Parker. In their valuation letter of 17 May 1988 (ex 36) Hillier Parker reported it to be their opinion "today" that the Centre had a value "as at practical completion" of $490 million. Elsewhere, in the same letter, they said they had formed their opinion of the value of the property "as at practical completion, namely 12th May 1988"; and in their confirming valuation report of 8 July 1988 they said their opinion of the value of the Centre "on completion as at 15th May 1988 is considered to be" $490 million. Why there was this series of different dates was not explained; but at the trial, her Honour found that the range was sufficiently limited to make the precise date immaterial. The valuation would, the expert witnesses agreed, be the same for all of them. That being so, the valuation delivered by Hillier Parker could properly be considered a valuation at practical completion irrespective of its exact date or of what Hillier Parker might have thought that date to be. The valuation was as valid for 18 April 1988 as it was for any of the other dates referred to.
  1. The third point revolved around the provisions of the second sentence of cl 14.1, the terms of which have been set out. It authorised each valuer, "if he considers it appropriate" in performing its valuations to have regard to the rental guarantee in cl 13 and to any transfer of ownership of plant and equipment which Interchase might have made to financiers. The plant and equipment were, we were informed, items in the Centre, such as escalators, air conditioning and the like,  that were held under leasing agreements from financiers. A reason for the provision in cl 14.1 was, as I understand Mr Fraser's submission now to be, that the possibility was foreseen that, on a hypothetical future sale, the lessor of the equipment might demand a premium for giving its consent to a transfer of the premises, which was why the valuers were authorised to take it into account.  Only Mr Brett thought it relevant and he raised the point at a late stage in the defendants' case. The point fails if one considers such a lease as analogous to a mortgage which the vendor would be required to clear off the title at settlement. What the valuers were valuing was the Myer Centre and not the vendor's interest in it. More broadly, the complaint is that Mr Waghorn was not told of the discretion that cl 14 conferred on the valuers, but (as reflected in the letter of retainer dated 14 April 1988) was simply provided with a copy of what was called the leverage lease agreement "for your reference" together with other documents. This was said to constitute a departure from the terms of cl 14.1. In fact, in preparing his valuation, Mr Waghorn took his own legal advice on the question, on which he acted, to the effect that the lease was to be ignored in valuing the premises. Her Honour found that that view of the matter accorded with the consensus of opinion among the expert valuers at the trial, who uniformly ignored  it as a factor in their valuations; but, in any event, it was the advice received by Mr Waghorn from his own solicitor, and not what was in, or omitted from, the letter of retainer, that led Mr Waghorn to ignore the leverage lease. He in fact approached it as a matter that was for him to determine, which shows that he considered it was appropriate to take it into account even if, having done so, he decided on the advice he received that it should be disregarded.
  1. The rental guarantee mentioned in cl 14.1 was the subject of a similar submission. Clause 14.1 left it to the valuer's considered judgment whether or not "to have regard" to the rental guarantee. The retainer letters, on the other hand, expressly instructed the valuers that their valuations were to "take into account" the Chase Corporation guarantee that the net income for the first year would be at least $3.29 million. A direction "to take into account" a guarantee is not inconsistent with a discretion to "have regard to it" if considered appropriate; and, as Mr Fraser acknowledged on appeal, it in fact had no impact on Mr Waghorn's valuation or the amount of it. Because he considered the rents that tenants in the Centre were liable to pay were sustainable at their full value, the rental guarantee did not affect his calculations or his conclusion about the value of the Centre. On his view, it was not going to be necessary for Interchase to call on the guarantee to make good any shortfalls in rent in the first year.
  1. The fourth disconformity identified by Hillier Parker arose out of the provision in cl 14(4) that each of the Proprietor Interchase and the Developer PEQ should direct the valuer commissioned by it to send a copy of its valuation direct to the other party. The direction included in the letter of retainer to Colliers Jardine was that a copy of their report should be submitted to CCA (the holding company Chase Corporation), which was found by her Honour to accord with an arrangement made between Interchase and PEQ. A similar direction intended for incorporation in the retainer letter to Hillier Parker was, by clerical or secretarial oversight, omitted from that letter; and, having received a copy of the Hillier Parker valuation from PEL, Interchase did not insist on another copy being delivered to it. Her Honour's finding was that this requirement in cl 14(4) of the Development Agreement had thus been waived by Interchase. In my opinion it was entitled to waive it. One would expect it to be receipt of the valuation rather than giving the direction to send it that was critical. It was the advent of the Valuation Receipt Date that generated the obligation to pay: cl 103.1.4, and it is defined in the Agreement as the date by which both Proprietor and Developer receive copies of both Completion Date Valuations. Except as an assurance of authenticity (about which there was no issue), the precise source from which the parties received their copies of the valuations is surely of little or no consequence.
  1. The fifth discrepancy concerns the relevance or otherwise to the valuation of events taking place between the date of the valuation, which was 17 May 1988, and the completion of the Hillier Parker report, which was 8 July 1988. The retainer letters advised that the valuation was to take into account "all deals done" between the valuation date and the report. This was said to be fatal to the valuation because it was not authorised by cl 14.1 of the Development Agreement, which provided for the valuers to determine "market value" at practical completion date. This formula was, as a matter of legal principle, said to preclude resort to events occurring after the valuation date. It was, however, plainly open to the parties if they chose, to prescribe a particular method for carrying out the valuation and, having regard to the finding that they had agreed to the letters being sent in that form, there can be no question about what was intended. As it is, there is nothing to suggest that the inclusion of this provision had the slightest impact on the valuation amount arrived at by Hillier Parker or the approach adopted in arriving at it. Both Mr Cox, who was the expert called by Interchase, and Mr Brett for Hillier Parker took account of trading figures after 18 April 1988; and her Honour made a specific finding that the expert valuers agreed that there was no difference in value between 18 April, 15 May or July 1988.
  1. Finally, the further complaint was made that cl 14.3 required the parties to furnish both valuers with all information that either of them considered relevant. Hillier Parker, it was said, was not informed of this provision in the retainer letter of 14 April or otherwise. In point of fact, the letter in question advised that "all building details", meaning by that all details of the Myer Centre building, that were required would be made available and enclosed various documents relating to it. Mr Waghorn (who was already thoroughly conversant with the Centre development from his earlier association with it) was, as Mr Fraser acknowledged on appeal, not refused any information he sought, and he would not have gone about his task in a different way if he had been aware of the precise terms of cl 14.3. It was not suggested that there was any other information that he might have asked for if he had been aware of that provision.
  1. Much time and effort was expended at the trial and on appeal in pursuing these details. Their legal significance is said to be that, as a consequence, there was no valuation from Hillier Parker pursuant to cl 14.1 that was capable of generating a Completion Valuation Amount having the effect of adjusting and fixing the Development Sum pursuant to 10A of the Development Agreement. A logical result of that submission must be that the Sum of $490 million was never fixed in that way or at all; that the Development Agreement never became a binding contract; and that the parties simply settled the transaction, paid the adjusted sum, and delivered possession without any contract at all but quite independently of the Development Agreement. The fact that, in doing so, they used the defendants' valuation was, so the argument proceeds, irrelevant to liability because the case for Interchase depends not on "reliance" but on the circumstance that the Development Agreement operated according to its terms to fix the Development Sum.
  1. The starting point of Hillier Parker's submission in this area is the decision in Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455. It involved a rent review clause in an eight-year lease under which rent payable after the first three years was to be adjusted by agreement or, failing agreement, was to be 10% p.a. of the mean of separate valuations made by valuers appointed as to one  by the lessee and the other by the lessor. Valuations were obtained in that way but neither party informed the other of its having done so or provided a copy of the valuation obtained.  The lessor nevertheless claimed that, using those valuations, a mean between them could be established, and on that footing issued a statutory notice of demand for the unpaid rent increase  with a view to winding up the lessee.  The High Court held that the provision in the rent review clause that a valuer be "appointed" by each party imported a requirement that the appointment be notified to the other party, which had not been done (153 CLR 455, 471-472). Given that, as a result, no valuations had within the meaning of the lease taken place at all, the matter fell directly within the principle quoted from Hall v Busst (1960) 104 CLR 206, 222, that it is only when a price or value is agreed or fixed that there is a binding contract.  In Gollin & Co Ltd v Karenlee Nominees Pty Ltd the rent increase had neither been agreed nor fixed. The provisions of the rent review clause, their Honours said (153 CLR 455, 469)

"provided the only agreed means for ascertaining the rent for the last five years of the lease. The provisions of the clause were not capable of being unilaterally waived by any one party."

  1. Hillier Parker's reliance on the decision in Gollin v Karenlee is, in my view, misplaced. Apart from the fact that it knew that valuers were being appointed, it was a decision in proceedings between the contracting parties themselves, in which the question was whether an indebtedness was created from non-payment of an alleged rent increase that in its turn depended on a procedure being carried out which had not taken place. By contrast, the valuation process here was carried out through to completion to produce a Completed Valuation Amount which under cl 10A.2 fixed the Development Sum payable by Interchase. Not unreasonably, the parties themselves regarded the letters received on 17 and 18 May as containing "valuations" which they accepted as valid and effective for the purpose of cl 14 of their contract. They accordingly became bound to complete the Development Agreement, which in due course they did.  Having acted in that way they were bound by the terms of that Agreement. See Brogden v Metropolitan Ry Co (1877) 2 App Cas 666. It was not for Hillier Parker, who were not a party to the contract or entitled to invoke its terms, to insist that Interchase and PEQ were not so bound. To countenance that would mean that no provision, however trivial, of such a contract would ever be capable of being varied by agreement between the parties to it; or, looking at it in another way, if the contract were varied, any valuation obtained under it would cease to be a valuation for the purposes of the contract. That is not the approach adopted towards attempts to set aside valuations on the ground of error: Legal & General Life of Australia v A. Hudson Pty Ltd (1985) 1 NSWLR 314, affd (1986) 61 ALJR 280; or on the ground of immaterial departures from instructions: Wickham Properties Pty Ltd v Astor Motel Pty Ltd [1994] 1 Qd R 211, 222; and see also Jones v Sherwood Computer Services [1992] 1 WLR 277, 288.  It is, I consider, also inconsistent with the passage, quoted above from the reasons of the High Court in Gollin & Co v Karenlee Nominees (153 CLR 455, 469), in which the emphasis falls naturally on the inability of any one party to waive the provisions of the rent review clause unilaterally. One would not have expected their Honours to include the word "unilaterally" if waiver or variation by both parties was also precluded.
  1. It is, however, possible to detect in the submissions of Hillier Parker the glimmer of another version of the same complaint. It is that Interchase and PEQ arrived at the Completion Valuation Amount not in accordance with the precise procedure prescribed in the contract but, to some extent at least, partly by agreement between them. The submission was not expressed in exactly that form but it appears to bear that character. Even so, it is difficult to see why, simply because the exact procedure was not followed, the valuation delivered by Hillier Parker could not be said to "determine the market value of the Centre" within the meaning of cl 14.1. None of the "disconformities" relied on went to jurisdiction or authority to value the subject-matter; and in carrying out their valuations the valuers were neither bound by, nor concerned to ensure compliance with, the mechanical details of the contract under which their valuations would operate to fix the Valuation Amount. It is enough for the purposes of their liability in tort that Hillier Parker knew that, when delivered, its valuation would have that effect. Their function was to prepare their valuations and deliver copies of them, leaving it to the parties to decide whether what they had received conformed to the contract between them. It was not a matter that the valuers were retained to determine. Despite the minor and immaterial "disconformities", the valuation letters exs 36 and 37 answered the description of "valuations" within the meaning of the Development Agreement, and the parties reasonably accepted them as such.
  1. The point is, however, related to another of Hillier Parker's submissions, which is that Interchase sacrificed an opportunity of escaping from the contract. Because the valuation did not, as it was claimed, precisely conform to the requirements of the Development Agreement, it would, so the argument ran, have been open to Interchase to refuse to proceed with the transaction. Not having done so, it could not now complain it had suffered loss in paying the adjusted Development Sum under the contract, instead of refusing to proceed with it and demanding the return of money already paid. In consequence, Interchase was, wholly or in part, the author of the loss it claimed to have sustained. At the trial, this was treated as raising an issue of causation. It might equally perhaps have been regarded as raising a question of mitigation of damages. Interchase might, it was argued, have rescinded or repudiated the Development Agreement but had elected not to do so. The fact that it was evidently not aware at the time of the various disconformities now identified or if its supposed power to rescind was, according to the appellant's argument, of no account. It could have discovered its right to do so by careful study of the Development Agreement and so identified the deficiencies in the various steps that had been taken under it in obtaining the valuations.
  1. Whether the matter is approached as one of causation or mitigation, it is a question in the end of the reasonableness of the plaintiff's conduct. Interchase was not obliged in the interests of the defendants to take action that might injure its own interests: James Finlay & Co v N V Kwik Hoo Tong [1929] 1 KB 400, 410, 415, 418. Its commercial interest dictated that it should perform and complete, rather than attempt to repudiate, the contract into which it had entered, and which at the time it no doubt supposed to be favourable to its future. It had no reason for thinking otherwise, and even if it had known of the "disconformities", it was not required to rescind or repudiate the Development Agreement as a favour to Hillier Parker, which did not suggest that it do so. Matters might well have been different if, before settlement or completion, Interchase had become aware that the valuation had been carried out negligently, although even then it would, in the state of prevailing authority, have been confronted with an almost impossible task in having the valuation set aside. See Legal & General Life v A Hudson (1985) 1 NSWR 314.  In the end, however, the simple fact is that this hypothetical right of rescission played no part in causing or contributing to the loss sustained by Interchase when it paid the adjusted Development Sum and refrained from claiming a refund of payments already made. The conclusion may be confirmed by imagining that in Glanzer v Shephard the plaintiff buyer had a right of rescission arising out of, say, the seller's delivery of beans that did not precisely answer  the contract description. If the buyer had chosen to keep those beans, it would not have relieved the defendant certifier of liability for negligently certifying their weight that the buyer had failed to exercise his right of rejection for disconformity. The right of rejection would have been quite unrelated to the certifier's negligence. Hillier Parker is in the same position. The supposed "disconformities" are not shown to have caused or contributed in any way to the negligent valuation or its amount or to the loss that resulted from its failure to use care in valuing the Centre.
  1. The second principal matter of defence raised by Hillier Parker relies on a disclaimer or exemption contained in their valuation letter (ex 36) dated 17 May 1988. After setting out the basis on which the valuation had been arrived at and foreshadowing delivery of the full valuation report that in fact confirmed it, the penultimate paragraph of that letter proceeded:

"This document, in common with the full report aforesaid, is for the use only of the party to whom it is addressed and for no other purpose. No responsibility is accepted to any person who may use or rely on the whole or any part of the content of this letter or the subsequent valuation report."

  1. The primary question is whether a disclaimer of this kind operated to relieve Hillier Parker from its duty to Interchase to take care in valuing or their liability for breach of it. It might be capable of affecting liability in more than one way. It might serve as notice to anyone proposing to act on the valuation of Hillier Parker's claim to exemption from liability; or it might serve as a positive restriction of the duty of care that would otherwise attach. The alternatives are not necessarily distinct or mutually exclusive, but in Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465, where a disclaimer was given effect, Lord Reid accepted that it would not operate to protect from liability a third party who was not aware of it ([1964] AC 465, 483). In Mutual Life & Citizens Assurance Co v Evatt (1968) 122 CLR 556, 570, Barwick CJ, in doubting whether the representor may always exempt himself, said that:

"the fact of such a reservation, particularly if acknowledged by the recipient, will in many instances be one of the circumstances to be taken into consideration in deciding whether or not a duty of care has arisen …"

  1. In the present case Hillier Parker's valuation was in terms "addressed" to Mr G Burgess, Chase Corporation Australia Property Group, Queensland. That might well be regarded as covering all companies in the Group, which included Interchase as well as PEQ by which Hillier Parker had been retained. In any event, a restriction of the "use" of the valuation to the addressee only was not readily capable of being given effect against Interchase once it was known, as it was to Hillier Parker, that their valuation would fix the amount of the adjusted Development Sum as between that company and PEQ. If that indeed involved a "use" of the valuation, it would have required much clearer words than those adopted in the disclaimer to protect Hillier Parker from the consequences of its being used for the sole purpose for which they knew it was intended. Its common law duty of care extended at least to that particular function or "use" of the valuation. It is, however, principally on the second sentence of the disclaimer that reliance is placed. It purports to exempt Hillier Parker from responsibility to "any person who may use or rely on" the whole or any part of the letter of valuation. As has been said more than once in these reasons, the plaintiff's case is not that Interchase relied on the valuation, but rather that the valuation, once received by the parties to the contract, operated of its own force to fix the amount under cl 10A of the Development Agreement. For that reason, I doubt whether it can properly be said that Interchase "used" the valuation letter. Simply receiving it as it did can scarcely be described as "using" it, and, once received, the contract functioned of its own accord to impose on Interchase, without any further action or option on its part, the obligation to pay the adjusted Development Sum.
  1. In deciding as she did that the disclaimer did not avail Hillier Parker, the learned judge at trial did not in all respects approach the question in precisely this way. She held that, because Hillier Parker and Mr Waghorn knew the purpose of the valuation, they could not have contemplated that Interchase, which would be bound by the average of the valuations, would come within the description of a third party acting in reliance on it. This was in part a reference to the final valuation report furnished on 8 July 1988 (ex 2), which embodied as one of its "terms and conditions" a statement that "Hillier Parker does not … assume any responsibility to any person other than the Client … for negligence ..". Her Honour disposed of this on the basis that it could not alter Hillier Parker's earlier acceptance of the retainer without any such reservation of liability, and that "the fuller disclaimer in the report could not operate retrospectively to exclude liability".
  1. Her Honour's conclusion on the interpretation of the disclaimer in the valuation letter is, in my respectful opinion, correct. It derives support from the decision of Wootton J concerning a somewhat similarly worded disclaimer in B T Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221, 236. In reaching that decision, his Honour was influenced by the consideration that, construing the disclaimer so as to exempt the valuer from liability to "third parties" directly affected by it (who were those for whom the units there were held in trust) would deny responsibility on the part of the valuer for the known purpose of the valuation, which "in the nature of things" was bound to affect those whose interests were being valued. I would, for my part, be prepared to go even further in the present case. A price‑fixing valuation conducted on the footing that the valuer is liable in negligence to one party, but not the other, would be open to suspicion of bias of a kind that would naturally tend to attract "shots" from one side. The valuer's function may, as Arenson establishes, not be quasi-judicial; but it is also plain, as Maule J observed in argument in Jenkins v Betham (1855) 15 CB 168, 186; 135 ER 384, 392, that "each of the parties [has] a vested right in a certain quantity of skill in each surveyor". It is a right which one would expect the law to protect; and it is to my mind doubtful if a valuer, employed as Hillier Parker was here, to value in a price-fixing role is free to bargain with one party to a valuation, to whom liability for negligence exists under the retainer, for immunity from suit at the instance of the other party.  To maintain an impartial balance, both parties or neither of them should have the right to "shoot at" the valuer.  In determining the scope of the duty of care resting on a valuer who acts to make such a valuation, it is a factor militating against giving effect to the disclaimer relied on by Hillier Parker that it does not operate evenly between the parties. If Hillier Parker is correct about the disclaimer, it remained liable to PEQ but was relieved of liability to Interchase. To lawyers, if not to valuers, that is a state of affairs that is pregnant with a potential for matters to go wrong.
  1. From what has been said, it follows that her Honour was correct in holding Hillier Parker liable to Interchase for negligent valuation and also in deciding that the disclaimer did not protect them from that liability. To that extent the appeal against the decision of the primary judge on liability must fail. The next major question concerns the amount of damages, which were assessed at $12,278,642 with interest to be added. As has already been mentioned, that amount was arrived at by ascertaining the difference between the sum that was paid by Interchase under the contract in consequence of the negligent valuation of $490 million made by Hillier Parker and the amount that would have been paid under the contract had the Centre been valued at the correct value, as it was found to be, of $410 million. The amount of that difference was then subjected to a substantial discount to take account of the risk or probability that the overpayment would not have been recovered in full at the date it should have been repaid, which was held to have been 21 July 1988. The amount of damages awarded depended directly on whether the value of $410 million had been correctly determined by her Honour at the time.
  1. On the valuation issue, the learned judge preferred the evidence of Mr Cox to that of the defendant's principal expert Mr Brett, who arrived at a value of $440 million. However, in reaching her conclusion about value, she had regard to Mr Brett's opinion and that of a Mr Willington in a report on the Myer Centre prepared in the year before the Hillier Parker valuation, as well as to valuation evidence of a Mr Weir, who was called by the defence. Mr Cox considered that the value in mid‑1988 was $380 million and, while generally accepting his evidence and opinion, her Honour considered it to be in some respects too conservative. After making adjustments to rectify that state of affairs, she arrived at a figure of $411 million which, when rounded down to $410 million, she found to have been the value at the relevant time in mid-1988. The adjustments made consisted, firstly, of an increase in income from car park rental in the Centre, and, secondly, the reduction to 7% overall in the capitalisation rate, which in Mr Cox's valuation averaged out at 7.43% for the whole Centre. Although both adjustments favoured Hillier Parker and brought the value closer by $30 million to the defendant's figure of $490 million, both adjustments were said to have involved errors in method. 
  1. Her Honour's recalculation started with Mr Cox's valuation figures and it is necessary to compare the two. Because Mr Cox considered that a gross rental income of $4,250,000 from the car park was "significantly above market, and above the level supportable by the turnover", he reduced it to $3,335,000, which in net terms would generate a rent of $3,000,000. Her Honour considered that in making that reduction, Mr Cox was being unduly pessimistic, and she preferred his original figure of $4,250,000, which produced an additional net rental income of $915,000. Adding that figure to Mr Cox's capitalised net income figure for the whole Centre of $27,877,000 increased it to $28,792,110, to which the judge applied the capitalisation rate of 7% instead of the rate of 7.75% that Mr Cox had used for his calculations of the car park rental. In addition, her Honour formed the opinion that Mr Cox had been too pessimistic in his treatment of some of the specialty tenancies in the tavern area. They were Butlers, the Albert Street specialities, and Berties Tavern, where he had reduced the anticipated rental income and again applied a high capitalisation rate. It was partly because of the lower values assigned to these premises by Mr Cox that her Honour chose to impose a lower capitalisation rate of 7% (which was supported by Mr Weir's valuation), instead of the average rate which, in the case of Mr Cox was 7.43% across the whole building, and in the case of Mr Brett was 7.32%.
  1. Although all of these adjustments were favourable to Hillier Parker, it was submitted that they had been wrongly applied by her Honour. First, it was said that her Honour was mistaken in applying a capitalisation rate of 7% generally to rental income from all parts of the Centre instead of applying separate capitalisation rates to the rental income from different areas in the building, which was said to be the method preferred by most of the valuers. It was, however, not shown what difference, if any, might have resulted from using one method rather than the other, and, as Interchase was quick to point out, Mr Waghorn himself had used a single rate in the Hillier Parker valuation of 1988. Without some indication that it made a tangible difference to the result, and in what amount, it is difficult to see where this criticism leads.
  1. Apart from that point, Hillier Parker's real complaint is that her Honour's adjustment process ignores the rental guarantee, which, if the net income was only $27 or $28 million, would come into effect under cll 14.1 and 13 once the total income from the Centre fell below $33.9 million. In making his valuation Mr Cox had on that account added amounts totalling $3.8 million ($3,432,019 and $446,124), which, it was said, had been ignored in her Honour's calculations. The fact is, however, that if that amount is added back into her Honour's calculation it becomes necessary also to deduct an amount of $4,037.768 which Mr Cox had debited for Owner Contributors to Promotions. To maintain consistency, it is necessary either that both items be ignored, or both be included. Hillier Parker's model does not adopt that course. There is therefore no justification for the assertion that her Honour's adjusted valuation figure involved an error of the order of some $4 million by omitting the value of the rental guarantee.
  1. Some further specific criticisms of Mr Cox's valuation may be briefly mentioned. One, which has already been considered in relation to the alleged "disconformities", is that he ran his valuation through to 30 June 1988 and used information available up to that date, instead of calculating it at the practical completion date of 18 April 1988 or 15th (or 18th) May,  which was adopted by Mr Waghorn in the Hillier Parker valuation. As to that, both Mr Cox and Mr Brett in their valuation reports and evidence used information that was not available until after 18 April, and the other valuers also proceeded on that footing. When cross‑examined about it, Mr Cox said it would make no difference to his valuation whether April, May or even July 1988 was taken as the valuation date, and her Honour made a specific finding to that effect. Indeed, the trading figures for the first three weeks from 18 April, which were especially favourable, were not available until mid-May, and they had a substantial upward impact on the value of the Centre. To have excluded them from the comparisons being made by Mr Cox and Mr Brett would have falsified the Hillier Parker valuation to an even greater extent. The other matter that attracted criticism was the six "bogus" leases. They were in a part of the building for which no permanent tenants had been secured, but which, when the Centre opened, were fitted out to look as if they were occupied. This is plainly more serious, but its impact, if any, on the Hillier Parker valuation was not quantified, and it had no impact on the comparative valuations tendered at trial. The valuers proceeded on the footing that the space in question was available for leasing at commercial rentals which led her Honour to conclude that the significance of the six leases was only slight. Without more specific evidence on the point, together with some attempt to quantify its effect in money terms, it is not possible to say what effect those leases might have had in the assessment of value or of the damages awarded.
  1. Reference to that matter leads on naturally to the question of contributory negligence. Hillier Parker claimed that, if negligent, the conduct of Interchase and PEQ had contributed to the resulting loss and that some reduction in the damages was called for. Particulars of the alleged contributing conduct were given in para 10(a) of the consolidated further and better particulars, where 27 matters are itemised. Several of them are simply a repetition of the "disconformities" considered elsewhere in these reasons. Other were matters about which Interchase was not proved to have known. Some were plainly untenable. The learned judge considered that the material was not sufficient to justify findings of contributory negligence against Interchase. It is difficult to disagree with this conclusion; even if minded to interfere with her Honour's conclusion there is nothing in the evidence on which to base a determination of the proper proportion or amount by which the damages awarded should be reduced to reflect the plaintiff's supposed share in the responsibility for the loss sustained. Contrary to the submission made in the appellant's reply, there is no comparison between the facts of this case and that of an injured passenger travelling in a motor vehicle who knows that the driver is intoxicated.
  1. My conclusion is that the damages awarded are not shown to have been incorrectly assessed at the trial. The plaintiff's claim for interest was the subject of separate submissions made after 2 February 2000, when her Honour published provisional reasons for her conclusion that the plaintiff's claim should succeed. She delivered a further set of reasons dealing with interest on 18 April 2000, which was the date on which judgment was given in the action. Damages against Hillier Parker were assessed at $11,994,988, to which was added an amount of $303,654 representing loss of what was described as "contractual interest" paid by Interchase under the provisions of the Development Agreement that, but for the negligence of the defendants, would not have been due or paid. Incorporating the interest awarded, the calculation in her Honour's reasons is as follows: 
Colliers Jardine (ACN 010 087 573 Pty Ltd)$
Judgment +13,224,988
Contractual Interest +303,654
Statutory Interest 
  • 21 July 1988 to 30 June 1995 at 12 percent
11,279,511
  • 1 July 1995 to 8 February 2000 at 10 percent
 
(not brought up to judgment as a limit of $20m)  6,241,707
 31,049,900
Hillier Parker (Grosvenor Hill (Queensland) Pty Limited) $
Judgment + 11,974,988
Contractual Interest +303,654
Statutory Interest 
  • 21 July 1988 to 30 June 1995 at 12 percent
10,237,359
  • 1 July 1995 to 8 February 2000 at 10 percent
5664,995
  • 9 February 2000 to 18 April 2000 at 10 percent
     235,480
 28,416,477

Hillier Parker challenge the amount of statutory interest awarded, and they do so essentially on two grounds; that is, that the period for which interest was awarded commences too early, and that the learned judge awarded interest at too high a rate.

  1. The expression "statutory interest" in the calculation refers to interest under s 47 of the Supreme Court Act 1995, formerly s 72 of The Common Law Practice Act of 1867. It has its source in the now superseded Law Reform (Miscellaneous Provisions) Act 1934 (Eng.) and is in the same terms as the analogous provision in s 94 of the Supreme Court Act (NSW), but differs in one respect from comparable provisions in some other States. In an action for damages like this, s 47(1) authorises the Court to include in the sum for which judgment is given:

"… interest at such rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of judgment."

The section confers a discretion which, it is settled, is to be exercised judicially with a view to compensating the successful plaintiff for the injury or loss sustained: see Haines v Bendall (1991) 172 CLR 60, 63. The purpose or function of an award of interest under the section is restitutionary. It is not to punish the defendant but to compensate the plaintiff for being kept out of the money represented by the judgment sum in the period between accrual of the cause of action and judgment: Batchelor v Burke (1981) 148 CLR 448, 455; Grincelis v House (2000) 74 ALJR 1247, 1250. In a perfect world, a defendant who injured a plaintiff would immediately recognise the wrong done and pay the amount of compensation required to make good the loss.  For reasons that are self-evident, that never happens in practice, and the justification for awarding interest is, as s 47 recognises, to compensate for the delay in payment between the time when the cause of action arises and the date of judgment: Thompson v Faraonio (1979) 54 ALJR 231, 233. In substance, the interest awarded is, it has been said, itself "in the nature of damages": Haines v Bendall (1991) 172 CLR 60, 66.

  1. Applying these principles, the learned judge arrived at the amount of statutory interest to be awarded from the date at which the cause of action accrued in favour of the plaintiff, which she held to be 21 July 1988, being seven days after the Valuation Receipt Date at which the adjusted Development Sum became payable by Interchase under the contract, until judgment on 18 April 2000.
  1. There is no doubt that the Development Sum was contractually payable on 21 July 1988. The first point at issue in this part of the appeal is whether her Honour ought, as Hiller Parker contends, to have begun the calculation and award of interest from 30 June 1993 instead of 21 July 1988. The reason advanced is that Interchase was said to have delayed in instituting and prosecuting the proceedings to recover damages, in which the writ was not issued until 13 April 1994. It is, to my mind, not immediately apparent why, as a matter of justice, that delay should operate to defeat or reduce a plaintiff's right to receive interest as compensation or damages for the whole of the period during which the amount was not paid. Quite apart from the loss to the plaintiff, the defendant has had the benefit of the money, and may be assumed to have put it to good use. In giving the reasons of the Full Court in Serisier Investments Pty Limited v English [1989] 1 Qd R 678, 679, Thomas J (as he then was) referred to circumstances in which it would sometimes be unfair to order a defendant to pay interest for the whole period between accrual of the cause of action and the date of judgment. Among the examples given by his Honour was the case "where the plaintiff has been guilty of unreasonable delay in prosecuting the claim".  In Serisier, the trial judge had awarded interest from the date of accrual of the cause of action, and had done so despite a delay of four years and four months between issue of the writ and the commencement of the trial.  Observing that it was an area in which the trial judge "must be allowed a wide discretion and in which appeal courts are reluctant to intervene" ([1989] 1 Qd R 678, 680) his Honour said he was not prepared to decide that the judge had erred in failing to limit the period over which pre-trial interest had been allowed. The same appears to be true of the present case.
  1. In the reasons delivered on the matter of statutory interest, her Honour referred to a statement of Moffitt P in Bennett v Jones [1977] 2 NSWLR 355, 367, to the effect that the power to award interest ought not to be used as an instrument of policy in the public interest to procure expeditious settlement or prosecution of claims, even if it might incidentally have that effect where delay by one party caused detriment to the other. After referring to that decision and to some competing observations in the South Australian case of Duke Group Ltd v Pilmer (1999) 31 ASCR 213, her Honour went on to record that, although Serisier Investments Pty Limited v English [1989] 1 Qd R 678, 679, recognised that delay was a factor to be taken into account, it was only "unreasonable delay" that would lead to a reduction in the period for which interest was awarded. Having found that no such delay had been shown on the part of Interchase, and in the absence of any particular detriment to the defendant calling for compensation that was less than full, her Honour decided not to reduce the period during which interest was to be awarded but to award it on the judgment sum for the whole period from 21 July 1988 until 18 April 2000.
  1. Section 47(1) expressly contemplates that an award of interest may be made for the whole period from accrual of the cause of action until judgment, and there can, in consequence, be no principle or rule requiring it to be restricted to something less. For Hillier Parker to succeed in displacing this element in the interest award, it must therefore go the length of showing that her Honour was bound to find unreasonable delay on the part of Interchase. At the trial Interchase provided a detailed explanation of the reasons why the proceedings were not instituted or brought to trial sooner than they were. It is enough to say here that the main reason was lack of funds due to the plaintiff's insolvency and liquidation, to which the negligence of the defendants must in some measure itself have contributed. It was plainly within the limits of a proper exercise of the discretion conferred by s 47 for her Honour to hold that Interchase should be compensated in full for its loss by awarding interest on the damages assessed for the whole period from 1988 to 2000. As in Serisier Investments v English, the decision is one with which this Court ought to be reluctant to interfere. I can find no error that would justify our doing so.
  1. What remains for consideration is the rate at which interest was awarded during that period. Her Honour applied a rate of 12% p.a. for the period from 21 July 1988 to 20 June 1995, and a reduced rate of 10% from then until judgment. The reduction to 10% was adopted to take account of somewhat lower rates of interest that prevailed "overall" from about 1 July 1995, which can scarcely be a matter for complaint by Hillier Parker. In speaking of rates "overall", her Honour was referring to "ordinary commercial rates" of interest which, in Gould v Vaggelas (1985) 157 CLR 215, 275, were held to be the appropriate measure to apply in awarding statutory interest in Queensland. Evidence was provided to her Honour of the market rates being paid on investments throughout the period. Between 30 June 1988 and 30 June 1999 the average rate for 180 day bills was 8.63%, and to 31 December 1999 it was 8.49%. Hillier Parker submits that her Honour ought to have adopted those rates instead of those she applied. The fallacy is that they are compound rates of interest, whereas those she applied to the judgment sum are based on a conversion of those rates to simple interest terms. At common law the practice has always been to express interest on judgment sums at simple interest rates: McGregor on Damages (14th ed. 1980), para. 479.  When the avowed purpose is to allow commercial rates of interest, it is plainly quite erroneous to base the award on compound interest rates as if they represent simple interest rates. Converted to simple interest, the average rate for the whole of the period in question were, as material before her Honour showed, in excess of 13% pa, so that the lower rates of 12% and 10% adopted by her Honour were favourable to the defendants.
  1. Hillier Parker nevertheless submits that to convert a compound interest rate to an effective simple interest rate contravenes s 47(3)(a) of the Supreme Court Act 1995, which precludes "the giving of interest upon interest" under the section, or  is merely a subterfuge aimed at circumventing that prohibition. No authority was cited in support of that proposition. In England (where the corresponding provision was superseded in 1981) Oliver J in Bushwall Properties Ltd v Vortex Properties Ltd [1975] 1 WLR 1649, 1660, said that the equivalent of s 47(1)(a) was "clearly aimed at the sort of case where an interest bearing debt is sued for, for instance, a mortgage or an instalment of interest in arrears", which is far removed from the character of the claim made here. In Queensland, a simple interest rate of 12% pa has generally been applied under s 47 since about 1985 or earlier. See Serisier Investments Pty Limited v English [1989] 1 Qd R 678, 681, and in Gould v Vaggelas (1985) 157 CLR 215, 275, a rate of 12% was held to accord with ordinary commercial rates. In New South Wales, the applicable interest rate, which is no more than an appropriate guide, is now fixed in the light of current conditions under schedule J to the Supreme Court Rules (71 ALJ 514, 520: D1 Cassidy QC) and has averaged 13.04% between July 1988 and February 2000. There is no reason why the learned judge should not have made reference to those rates in the course of deciding on rates to be adopted in this instance. They gave some indication of rates which have been used and allowed in practice both in Queensland and New South Wales, and afforded a measure of comparison with the commercial rates of which evidence was adduced before her.  I see no justification for concluding that, in awarding interest at the rates she chose, her Honour exercised her discretion wrongly by simply following that practice and ignoring the evidence before her. She was not required to attain perfection or precision, and, as it happens, the rates of 12% and 10% that were applied erred on the side of the appellant by comparison with what appeared from the evidence before her to have been the prevailing average commercial rate of 13% and more during the period in question.
  1. Apart from matters more or less of principle like these, there were two specific items of interest awarded in an amount which it was submitted was excessive. They were or arose out of: (a) the payment in advance by Interchase of an amount of $15 million on 29 March 1998 in anticipation of the valuations, which were expected to produce an upward adjustment in the Development Sum; and (b) payments by Interchase of further amounts totalling $4.65 million between 22 July and 17 October 1988 in satisfaction of its contractual obligation at 21 July to pay the balance of that Sum as adjusted. If the defendant had not been negligent in valuing the Myer Centre, those amounts would not have been paid or, if paid, would have been refundable to Interchase. There was an agreement between Interchase and other members of the Chase Group, which is recorded in a letter dated 15 March 1988, that, in the event of its becoming necessary to make refunds of prepayments, the sums refunded would carry interest at the rate (which was the Bill Rate) specified in cl 10B.3 of the Development Agreement. Applying that rate, her Honour arrived at a total of $607,307 which, when divided between Colliers Jardine and Hillier Parker, emerged as the figure $303,654 that is designated Contractual Interest in the table in her Honour's reasons delivered on 21 March 2000.
  1. Except as to an amount of $50,000, those payments by Interchase were proved to the satisfaction of the learned trial judge. Hillier Parker's complaint in respect of both of (a) and (b) is that while, apart from their negligence, the amount might not have been paid or payable and would have been recoverable at the Valuation Receipt Date, they could not in fact have been refunded or recovered on 21 July 1988 but only on some later date. For that reason, her Honour ought not to have calculated interest on those amounts from 21 July 1988 without making some discount or allowance for that delayed recovery factor.
  1. As regards the amount (a) of $15 million, the submission mistakes the scope of the discounting process that her Honour was carrying out in relation to that ingredient in the damages award. As her reasons for judgment recognise, a refund to Interchase of the prepayment of $15 million would have been "slow in coming in" and "there would have been no more than a 50% chance [of receiving it] which calculates to a figure of $7.5M". Her Honour was engaged in assessing and compensating Interchase for loss of the chance of receiving the full amount of $15 million at 21 July 1988 (which was when it should have been refunded) and in doing so discounted it by 50% to arrive at the amount of $7.5 million. A discount of that kind and degree is designed to arrive at a damages amount that will in fact compensate the plaintiff for its loss at the date at which it ought to have been received. It accordingly takes account of the difficulties, delays and contingencies that might have prevented full recovery at that date. Once that comprehensive discount had been applied here, interest fell to be calculated and awarded on the discounted damages sum without subjecting it to any further discount.
  1. In relation to amount (b), which was part of the balance of the adjusted Development Sum that was paid in a series of instalments after 21 July 1988, it is true that some allowance should have been made for the fact that the sum of $4.5 million was not paid as a single sum on 21 July 1988 but at intervals during a period extending to 10 October 1988. Logically perhaps the appropriate course might have been to base the calculation on the interest that has been paid by Interchase itself under the Development Agreement by reason of its own delay in paying that sum; but in the context of the total amount of damages awarded the difference is not substantial. As it is, Hillier Parker's submission is, as I understand it, not that the judgment sum should now be reduced by the amount of that difference whatever it may be, but rather that it demonstrated an error on her Honour's part in assessing interest which has the consequence of invalidating the whole of the interest award (cf grounds 28 and 29 of the amended notice of appeal, and para 12.27 of the appellant's written outline). However, a discrepancy as trivial, in relative terms, as that complained of would not invalidate the discretionary exercise as a whole or justify interfering with it on appeal. For the reasons which have already been given, her Honour's award of interest proceeded in accordance with established principles and involved no error of a kind that makes it liable to be set aside.
  1. The final question on appeal concerns the order for costs made by the primary judge. Judgment was given against the first defendant Colliers Jardine for an amount which, with the addition of statutory interest, was by agreement limited to $20 million, and the proceedings against the second defendant Mr Tidbold were discontinued before trial. The action continued against the other two defendants Hillier Parker and Mr Waghorn as regards liability, and against all three including Colliers Jardine on the issue of quantum. On liability, the plaintiff succeeded against the third defendant Hillier Parker, but failed against the fourth defendant Waghorn. Orders for costs were made on 23 June 2000 after the question of interest had been determined and judgment had been given in the proceedings. Both the third defendant Hillier Parker and the fourth defendant Mr Waghorn have appealed by leave against the orders for costs made in respect of the proceedings against them. The third defendant Hillier Parker was ordered to pay the plaintiff's costs of and incidental "to the proceedings against the third defendant" to be assessed. The leave granted in relation to that order was restricted to appealing against the refusal to limit the plaintiff's costs against it. In the case of Mr Waghorn, it was ordered that there be no order as to costs of the fourth defendant. Leave to appeal was granted without any restriction as to subject matter.
  1. The order that Hillier Parker pay the plaintiff's costs of the proceedings against it is precisely what might have been expected. In what turned out to be a very lengthy trial occupying many sitting days between April and September 1999, Interchase succeeded in its claim for damages against Hillier Parker at a hearing at which every issue was contested by Hillier Parker but without success.
  1. On the propriety of the order for costs against it, I have not found Hillier Parker's submission altogether easy to follow; but it appears to be capable of being reduced substantially to two matters of complaint. One is that her Honour was wrong in failing to limit the costs ordered to be paid by Hillier to those items of costs incurred by the plaintiff with respect to work done solely for advancing the plaintiff's claim against the third defendant, together with one half of the "general costs" of the proceedings. By general costs is meant "costs incurred by the plaintiff necessary for the purpose of advancing the proceedings against all the defendants". Specific examples of such costs that are given are instructions to sue and to issue the writ, as distinct from costs incurred in serving particular defendants. In my opinion, however, the order made by her Honour sufficiently caters for matters of that kind by restricting the order to "costs of and incidental to the proceedings against the third defendant". It was not necessary that her Honour should have adopted the expression "general costs" to give effect to the incidence of costs which she had in mind, and I see no ambiguity in the formula used to give effect to it.
  1. The submission that the order should have been limited to half of those "general costs" seems to me to be strangely at odds with the complaint about the terms of the order that was in fact made and with the obvious intention that inspired the order, which was that the third defendant should pay those (but only those) costs that were incurred by the plaintiff in the proceedings against that party. The order in that form seems to me to provide precisely what Hillier Parker was and is asking for. There is, however, a further basis on which it is submitted that some other order should have been made. It is that originally the first and second defendants were sued as joint tortfeasors with the third and fourth defendants. As a result, those two sets of defendants issued contribution notices to each other. Only at a late stage of the proceedings was it acknowledged by the plaintiff that those two sets of defendants, the first and second, and the third and fourth, were in law liable as independent concurrent tortfeasors, and not jointly and severally for the damage inflicted. As a result, the claims for contribution between them became unnecessary and were discontinued.
  1. The costs thrown away in that futile exercise, as it turned out to be, were the subject of a special order requiring the third defendant to pay to the first and second defendants their costs of and incidental to the contribution proceedings, with a right of indemnity against the plaintiff. The third defendant will in the end have a right to set off the amount of those costs against the amount of its own liability for costs to the plaintiff. The plaintiff's action in abandoning its claim that the third defendant was a joint tortfeasor with the first and second defendants may, however, have been responsible for Hillier Parker's impression that it should somehow not be liable for the whole of the costs of the proceedings against it. If that is being advanced as a reason for further limiting, by half or in some other way, the costs awarded against the third defendant Hillier Parker, then in my opinion it is contrary to authority. Where two or more defendants conduct separate defences to an action and judgment goes against all:

"the law is that each of them is liable for the damages awarded by the judgment, and each of them is liable to the plaintiff for all costs taxed on his behalf as properly incurred by him in the maintenance of the action, except as to costs caused by him by so much of the separate defence of any defendant as is, and can only be, a defence for that defendant as distinct from the other defendants."

See Stumm v Dixon & Co (1889) 22 QBD 529, 533-534, applied in Thiess Watkins White Constructions Ltd v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452, 453, where Cooper J (at 454) said that the general rule that costs against two or more persons are joint and several "is not disturbed unless, and only to the extent that, one defendant conducts a distinct defence which incurs costs which cannot be attributed to the joint conduct of the defendants in the defence of the action".

  1. In the present case Hillier Parker and Waghorn were the only defendants who conducted defences at the trial. Separate judgments were given against the first defendant Colliers Jardine and the fourth defendant Hillier Parker each for an amount that effectively was about half of the total damages sustained by Interchase. Before trial Colliers Jardine consented to judgment with damages to be assessed, or, in other words, it abandoned its defence on liability and submitted to having the quantum of that liability assessed by the judge at trial, thereafter limiting its appearance at the trial to defending the contribution proceedings between it and Hillier Parker. On any view of its participation in the trial as a whole, it pursued no separate defence or defences special to it and occasioned no additional costs in defending the proceedings for which, under the order made by her Honour, the third defendant may now be required to pay.
  1. Hillier Parker also submitted that Interchase had started out with a claim for $64 million damages against all defendants, which succeeded at the trial to the extent only of about $12 million or $13 million against each, with interest to be determined. It is not uncommon in negligence or other actions for the plaintiff to claim an amount of damages that exceeds what is really capable of being substantiated at the trial. The remedy of a defendant against excessive claims in amount is to pay into court or to make an offer of such an amount that, if the plaintiff recovers less, results in its having to bear the cost of the proceedings. In the course of this trial Hillier Parker made an offer or offers, which, however, fell well short of the amount for which judgment was later given. It had no influence or effect on the costs awarded against Hillier Parker, which, as has been said more than once, were limited to the plaintiff's costs of the proceedings against that defendant. No reason has been shown for considering that in making that order her Honour exercised her discretion wrongly. Hillier Parker has failed to show that, within the terms of the restricted leave to appeal that was given, her Honour refused to limit the plaintiff's costs against it, or that her Honour's discretion as to costs miscarried in any other respect that is relevant. The third defendant's appeal against the order for costs must be dismissed with costs.
  1. The remaining question is Mr Waghorn's appeal against the order that there be no order with respect to his costs. That order was made in proceedings against him in which the claim by Interchase was held to have failed and was dismissed. The reason for that failure was a finding that Waghorn had not assumed personal responsibility for the valuation he had carried out and which had been signed, and so authenticated by him, in the name of Hillier Parker. Following the decision in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, 836, her Honour held that Mr Waghorn was accordingly not liable for the ensuing damages. I have some serious misgivings about that decision as well as others in which it has been followed. Hillier Parker was held liable to Interchase in tort because Mr Waghorn was personally negligent in carrying out his valuation of the Myer Centre, for which Hillier Parker as his employer or principal was in law vicariously responsible to Interchase. Vicarious liability proceeds on the footing that the individual wrongdoer and the person who is vicariously liable are joint tortfeasors. To say that the principal or employer is legally responsible but that the actual wrongdoer is not, seems to me to be an inversion of the whole doctrine. The growing support for it in decisions outside Australia has recently been the subject of a critical examination by Mr Peter Watts in (2000) 116 LQR 525. It is fundamentally opposed to the decision of the House of Lords in Lister v Romford Ice & Cold Storage Ltd [1957] AC 555, where it was held that an employer who is liable only vicariously may recover indemnity against the employee for breach of an implied term in his contract of employment that he will use reasonable care and skill in performing the duties of his employment.
  1. The legal liability of Mr Waghorn as fourth defendant is, however, not now in issue because there is no appeal against the decision dismissing him from the proceedings. He succeeded at trial in defeating the claim and the proceedings against him, and that result must be firmly kept in mind in determining the incidence of costs of those proceedings against him. Her Honour rejected a submission that he should recover costs against the plaintiff, and instead ordered that there be no order as to costs in the proceedings between Interchase as plaintiff and the fourth defendant Waghorn. Having obtained leave to appeal against that costs order, Mr Waghorn now contends that, having succeeded in the proceedings, the order should have been that the plaintiff pay the costs of the action.
  1. By the time the order was made, costs were governed by the Uniform Civil Practice Rules and in particular by Rule 689(1), which provides:

"689(1).Costs of a proceeding are in the discretion of the court but follow the event, unless the court considers another order is more appropriate."

Her Honour concluded that this was a case in which "another order" was more appropriate, and in the exercise of that discretion she ordered that there be no order as to costs between Interchase and Mr Waghorn.

  1. There is no doubt that Rule 689(1) conferred a discretion to make such an order, but Mr Waghorn submits that the learned judge went wrong in taking into account various impermissible or irrelevant factors. Matters specifically referred to by the learned judge were that the basis on which the fourth defendant had been found not to be liable was that he had not assumed personal responsibility for the third defendant's valuation which he had carried out; that his defence at the trial had been conducted jointly with the third defendant Hillier Parker through the same solicitors and counsel; that it was not possible to identify in any commonsense way any separate costs which might have been incurred by Mr Waghorn over and above those incurred by Hillier Parker; that nothing had been put before the Court to suggest that he had any personal responsibility for the costs incurred in his defence; and that it was common knowledge that an insurer had conducted the proceedings on behalf of those defendants.
  1. Whether, as Mr Waghorn submits, some or all of those were matters not properly taken into account, the fact remains that, apart from the order that was made, there were only two orders that might have been adopted with respect to Mr Waghorn's costs. Having succeeded in defeating the plaintiff's claim, it would not have been a proper exercise of discretion to order that he pay the plaintiff's costs of the proceedings. That left for consideration, the possibilities: (1) that the plaintiff Interchase might be ordered to pay the whole of Waghorn's costs; and (2) that Waghorn might be awarded the costs of issues on which he succeeded but ordered to pay the plaintiff's costs on issues on which Interchase had succeeded. Since he had defended and contested every issue at this lengthy trial, and had failed on all but the limited question on which he succeeded, the result of adopting the second of those alternatives would, it might be thought, have been unduly favourable to him and correspondingly unjust to the plaintiff. On behalf of Interchase it was submitted to the learned judge that a more appropriate order was to award it the costs of issues on which it succeeded; or alternatively that there be no costs of the proceedings between it and Mr Waghorn, which was the order that found favour with her Honour.
  1. For this purpose it becomes necessary to consider the extent of the power of a judge to award costs of issues under Rule 689(1), as well as the way in which it may be exercised. The Rule speaks, in the first place, of costs of proceedings being in the discretion of the court but as following the "event" unless the court otherwise orders. The word "event" in a context like this has spawned an immense amount of authority. Before the Judicature Act and rules, the guiding principle applied in Chancery was that costs were in the discretion of the court, while at common law, where trials took place with a jury, it was that costs followed the event. Under the Judicature Act and rules, the pre-Judicature principles were preserved in what in Queensland became O 91, r 1, which adopted O LXV, r 1 of the English rules of 1875 including the second proviso to that rule providing that costs follow the event "unless … the Court shall for good cause otherwise order". Despite far-reaching later changes in the corresponding English rules governing costs, O 91 r 1 remained in the original form until the UCPR came into force on 1 July 1999.
  1. The impact of the second proviso was considered by Lord Finlay LC in Reid Hewitt & Co v Joseph [1918] AC 717, where a successful plaintiff had been awarded costs of the action, although he had succeeded on only one of two issues at the trial.  Following a lengthy survey of the authorities, his Lordship concluded that the "event" was not simply the result or outcome of the action, which in that instance his Lordship considered, would produce "such injustice that it would call for a special order under the proviso to correct it" ([1918] AC 717, 731). The words "follow the event" were to be read "distributively", by which his Lordship meant that, where there were two or more issues or questions in the action, each of them was, or gave rise to, an "event" for which the costs were to be determined separately. So, in Reid Hewitt & Co v Joseph, the order substituted on appeal ([1918] AC 717, 744) was that the defendants should have the costs of the issue on which they had succeeded. From Lord Finlay's approving reference to the decision in Ellis v Desilva  (1881) 6 QBD 521, it is clear that he did not regard what he was saying as confined to the costs of actions tried with a jury. Ellis v Desilva concerned a reference to arbitration in which, like Rule 589(1), the formula used was that costs should "follow the event". See also Colbert v Beard [1992] 2 Qd R 67, 69-71, where Thomas J discussed this question and came to a similar conclusion on the subject of "issues"
  1. These authorities show that the structure and language of the new Rule 689(1) has not introduced any marked change in the practice governing awards of costs in Queensland. Costs are, as they were before, in the discretion of the court. They follow the "event" which, when read distributively, means the events or issues, if more than one, arising in the proceedings unless the court makes some other order that is considered "more appropriate". It is not by this intended to suggest that there has been a reversion to a regime under which costs of separate issues must now be determined. The practice of doing so was responsible for so much litigation in England that the rule was eventually altered to place costs within the general discretion of the court or judge: see Judicature Act 1925, s 50(1). Rule 689(1) may fairly be regarded as producing the same result as prevailed before it came into force, although it now does so in somewhat different language and is structured in a slightly different way. Few civil matters are now tried by jury in Queensland, and it ought not to be assumed that, by introducing the new rule in a form that now omits reference to such trials, a fundamental change in the practice of awarding costs was intended.
  1. Even if I am mistaken about this interpretation of Rule 689(1), it would not assist the fourth defendant Waghorn in the present case. On all issues except one he was completely unsuccessful, and they were the questions that absorbed time and costs at the trial. Her Honour would have been justified in ordering Mr Waghorn to pay the costs of those issues. Instead, she ordered that no costs be awarded to either of the parties to those proceedings. By doing so, she saved Mr Waghorn the expense of what would certainly have been a vast liability in costs of those issues, as well as the ordeal and expense of having those costs assessed. If we were to exercise the discretion afresh on appeal, I might well follow the same course as her Honour. I would certainly not order Interchase to pay the costs of the whole action simply because, in the end, the claim against Mr Waghorn was dismissed. It was not the specific result that in this case constituted the "event" in the proceedings. To regard it as the "event" would, as Lord Finlay recognised in the case referred to, cause such injustice as to call for the exercise of the power conferred by Rule 689(1) of making "another order", which was the course her Honour adopted. In consequence, the fourth defendant has no reason to complain about the order with respect to costs in his case, and his appeal against it should be dismissed with costs.
  1. The result of these reasons and conclusions is that in my opinion the appeal of the third defendant Hillier Parker against the judgment given on 18 April 2000 should be dismissed with costs. In addition, the appeals by both that defendant and the defendant Brian Waghorn against the orders for costs made on 23 June 2000 should also be dismissed with costs including reserved costs.
  1. THOMAS JA: I have the advantage of having read the proposed reasons of McPherson JA. 
  1. The learned trial judge's conclusion in this particular case was that the respondent has a valid claim for economic loss arising from the negligence of a valuer with whom it was not in a contractual relationship. One is, of course, well aware of the dangers of too readily extending the boundaries of claims for pure economic loss. However, the conclusion in favour of liability in the present case in my view survives the application of the main factors that can be identified in the various reasons delivered in Perre v Apand Pty Ltd.[5] In particular, the closeness of the relationship between the appellant and respondent, the respondent's direct vulnerability to loss unless the valuation was made with due care, the apparent absence of multiple consequential claims, the control available to the appellant and the ready foreseeability that the respondent would directly suffer loss are all circumstances that combine to support the existence of a duty of care. 
  1. The learned trial judge has put together the specific building blocks supplied by the evidence in this case and concluded that the correct result was a finding of liability. A similar exercise undertaken by McPherson JA leads to the same result. Reference to the factors identified in Perre permit a broad overview to be taken, and it suggests that the resulting edifice is sound.  I have no wish to widen the boundaries of pure economic loss claims, but identify the present case as revealing an actionable breach of duty.
  1. In a recent decision, Tepko Pty Ltd v Water Board[6], a majority of the High Court[7]  considered that no actionable duty of care was owed by a water board which supplied a developer with a preliminary costs estimate of a water supply connection to the proposed subdivision.  That decision is a further example of the need to identify the duty from the particular facts of the case.[8]  Gleeson CJ, Gummow and Hayne JJ concluded that the Board reasonably lacked foresight respecting the vulnerability of the developer.[9]  Gauldron J considered that the Water Board should not be taken to have known that the developer intended to act upon the cost estimate for any purpose let alone a serious purpose, and that the developer's reliance upon it was not reasonable in the circumstances.[10]  The minority took a different view of the facts, concluding that the Board must have known that the developer wanted the information for a serious purpose, namely the organisation of his business affairs and that it was inconceivable that it would not believe that the developer would not rely on what he was told.[11]  On any view of the facts, and particularly on the majority view, Tepko is a very different case from the present one.  Both Tepko and the present case are examples of the case by case identification of whether a duty situation arises consistently with the rather broad principles mentioned in Perre v Apand and other cases that deal with liability for pure economic loss.
  1. With respect to the appellant's submissions that there are various "disconformities" between the conduct of the contracting parties and the strict requirements of the contract, I am unable to see that they are material to the ultimate issues. If an erroneous instruction had affected the valuation so that it had some consequence in the assessment of damages it may have been material to that question. However, the evidence shows that there was no such effect. I do not think that in the circumstances the disconformities have any bearing on the determination of whether a duty was owed by the appellant to the respondent or whether the duty was breached. The matters relied on by the appellant in its extensive submissions do not rob the valuation of its character as a valuation pursuant to the contract that was foreseeably relied on by the contracting parties as a factor in fixing the contract price.
  1. Further, in the circumstances described by McPherson JA, it could not reasonably be said that the respondent should have taken such action as was available to it to avoid the use of the appellant's valuation in fixation of the contract price. Nor can it be said that the taking of such action would be likely to have been other than disastrous for Interchase. The alleged disconformities are typical of loose commercial conduct by parties obviously intent upon carrying out their contract, sometimes doing so without strict compliance with all of its terms. The relevant acts were plainly accepted by both contracting parties, and reasonably so, as acts effecting the performance of this particular phase of the contract.
  1. Other than reserving my position on the additional alternative view expressed by McPherson JA in paragraph 50 of these reasons for concluding that the valuer's disclaimer was not effective in relation to anyone other than its client, I agree entirely with what his Honour has written and have nothing useful to add.
  1. I agree with the orders proposed by McPherson JA in relation to each of the three appeals.

Orders

1.Appeal no 4273 of  2000 against the judgment given on 18 April 2000 dismissed with costs.

2.Appeal no 6267 of 2000 against the judgment given on 23 June 2000 and 28 June 2000 dismissed with costs including reserved costs.

3.Appeal no 6268 of 2000 against the judgment given on 23 June 2000 dismissed with costs including reserved costs.

Footnotes

[1]  [1998] 1 WLR 830.

[2]  [2000] QCA 314, Appeal No 4092 of 1999, 4 August 2000, [11]-[13], [50].

[3]  [1957] AC 555.

[4]  [15]-[19].

[5]  [1999] 198 CLR 180.

[6]  [2001] HCA 19, 5 April 2001.

[7]  Gleeson CJ, Gummow, Hayne and Gauldron JJ, McHugh, Kirby and Callinan JJ dissenting.

[8]  Ibid para 8.

[9]  Ibid para 50.

[10]  Ibid paras 86, 87.

[11]  Ibid paras 157, 167.

Close

Editorial Notes

  • Published Case Name:

    Interchase Corporation Limited v ACN 010 087 573 Pty Ltd

  • Shortened Case Name:

    Interchase Corporation Limited v ACN 010 087 573 Pty Ltd

  • Reported Citation:

    [2003] 1 Qd R 26

  • MNC:

    [2001] QCA 191

  • Court:

    QCA

  • Judge(s):

    McMurdo P, McPherson JA, Thomas JA

  • Date:

    25 May 2001

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2000] QSC 1308 Feb 2000Judgment for the plaintiff against the first and third defendants; claim against the fourth defendant dismissed; third and fourth defendants' cross-claims against the first and second defendants: White J
Appeal Determined (QCA)[2003] 1 Qd R 2625 May 2001Appeals dismissed: McMurdo P, McPherson JA, Thomas JA

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Arenson v Casson Blackman Rutley & Co (1977) AC 405
4 citations
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Cite 1 - (1977) AC 405
Cite 2 - (1977) AC 405
Cite 3 - (1977) AC 405
Cite 4 - (1977) AC 405
Batchelor v Burke (1981) 148 CLR 448
1 citation
Jump To
Cite 1 - (1981) 148 CLR 448
Bennett v Jones (1977) 2 N.S.W. L.R. 355
1 citation
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Cite 1 - (1977) 2 N.S.W. L.R. 355
Bily v Arthur Young & Co (1992) 834 P 2d 745
4 citations
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Cite 1 - (1992) 834 P 2d 745
Cite 2 - (1992) 834 P 2d 745
Cite 3 - (1992) 834 P 2d 745
Cite 4 - (1992) 834 P 2d 745
Black v S Freedman & Co (2000) 116 LQR 525
1 citation
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Cite 1 - (2000) 116 LQR 525
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
1 citation
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Cite 1 - (1982) 149 CLR 600
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
1 citation
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Cite 1 - (1877) 2 App Cas 666
BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221
3 citations
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Cite 1 - [1983] 3 NSWLR 221
Cite 2 - [1983] 3 NSWLR 221
Cite 3 - [1983] 3 NSWLR 221
Bushwall Properties v Fortex Properties (1975) 1 WLR 1649
2 citations
Jump To
Cite 1 - (1975) 1 WLR 1649
Cite 2 - (1975) 1 WLR 1649
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529
1 citation
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Cite 1 - (1976) 136 CLR 529
Candler v Crane Christmas & Co [1951] 1 KB 164
1 citation
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Cite 1 - [1951] 1 KB 164
Cann v Willson (1888) Ch D 39
2 citations
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Cite 1 - (1888) Ch D 39
Cite 2 - (1888) Ch D 39
Colburt v Beard [1992] 2 Qd R 67
2 citations
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Cite 1 - [1992] 2 Qd R 67
Cite 2 - [1992] 2 Qd R 67
Credit Alliance v Arthur Anderson & Co (1985) 483 NE 2d 110
1 citation
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Cite 1 - (1985) 483 NE 2d 110
Credit Alliance v Arthur Anderson & Co (1985) 483 NE 3d 110
1 citation
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Cite 1 - (1985) 483 NE 3d 110
Duke Group Ltd v Pilmer (1999) 31 ASCR 213
1 citation
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Cite 1 - (1999) 31 ASCR 213
Ellis v Desilva (1881) 6 QBD 521
1 citation
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Cite 1 - (1881) 6 QBD 521
Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241
4 citations
Jump To
Cite 1 - (1997) 188 CLR 241
Cite 2 - (1997) 188 CLR 241
Cite 3 - (1997) 188 CLR 241
Cite 4 - (1997) 188 CLR 241
Finnegan v Allen (1943) KB 425
3 citations
Jump To
Cite 1 - (1943) KB 425
Cite 2 - (1943) KB 425
Cite 3 - (1943) KB 425
Glanzer v Shepard (1922) 233 NY 236
2 citations
Jump To
Cite 1 - (1922) 233 NY 236
Cite 2 - (1922) 233 NY 236
Glanzer v Shepard (1922) 135 NE 275
2 citations
Jump To
Cite 1 - (1922) 135 NE 275
Cite 2 - (1922) 135 NE 275
Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455
4 citations
Jump To
Cite 1 - (1983) 153 CLR 455
Cite 2 - (1983) 153 CLR 455
Cite 3 - (1983) 153 CLR 455
Cite 4 - (1983) 153 CLR 455
Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 155
1 citation
Jump To
Cite 1 - (1983) 153 CLR 155
Gould v Vaggelas (1985) 157 CLR 215
3 citations
Jump To
Cite 1 - (1985) 157 CLR 215
Cite 2 - (1985) 157 CLR 215
Cite 3 - (1985) 157 CLR 215
Grincelis v House (2000) 74 ALJR 1247
1 citation
Jump To
Cite 1 - (2000) 74 ALJR 1247
Haines v Bendall (1991) 172 CLR 60
3 citations
Jump To
Cite 1 - (1991) 172 CLR 60
Cite 2 - (1991) 172 CLR 60
Cite 3 - (1991) 172 CLR 60
Hall v Busst (1960) 104 CLR 206
3 citations
Jump To
Cite 1 - (1960) 104 CLR 206
Cite 2 - (1960) 104 CLR 206
Cite 3 - (1960) 104 CLR 206
Hedley Byrne & Co. Ltd. v Heller & Partners (1964) A.C. 465
6 citations
Jump To
Cite 1 - (1964) A.C. 465
Cite 2 - (1964) A.C. 465
Cite 3 - (1964) A.C. 465
Cite 4 - (1964) A.C. 465
Cite 5 - (1964) A.C. 465
Cite 6 - (1964) A.C. 465
High Court in Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 73 ALJR 901
3 citations
Jump To
Cite 1 - (1999) 73 ALJR 901
Cite 2 - (1999) 73 ALJR 901
Cite 3 - (1999) 73 ALJR 901
Hill v Van Erp (1997) 188 CLR 159
2 citations
Jump To
Cite 1 - (1997) 188 CLR 159
Cite 2 - (1997) 188 CLR 159
Holt & Anor v Cox (1997) 23 ACSR 590
3 citations
Jump To
Cite 1 - (1997) 23 ACSR 590
Cite 2 - (1997) 23 ACSR 590
Cite 3 - (1997) 23 ACSR 590
James Finlay & Co. v N. V. Kwik Hoo Tong H. M. [1929] 1 KB 400
1 citation
Jump To
Cite 1 - [1929] 1 KB 400
Jenkins v Betham (1855) 15 CB 168
3 citations
Jump To
Cite 1 - (1855) 15 CB 168
Cite 2 - (1855) 15 CB 168
Cite 3 - (1855) 15 CB 168
Jenkins v Betham (1855) 139 ER 384
1 citation
Jump To
Cite 1 - (1855) 139 ER 384
Jenkins v Betham (1855) 135 ER 384
1 citation
Jump To
Cite 1 - (1855) 135 ER 384
Jones v Sherwood Computer Services Plc. [1992] 1 WLR 277
1 citation
Jump To
Cite 1 - [1992] 1 WLR 277
Kemp v John Fairfax & Sons Pty Ltd (1952) 69 W.N. (N.S.W.) 328
2 citations
Jump To
Cite 1 - (1952) 69 W.N. (N.S.W.) 328
Cite 2 - (1952) 69 W.N. (N.S.W.) 328
Kenny & Good v MGICA 1992 Ltd (1997) 77 FCR 307
1 citation
Jump To
Cite 1 - (1997) 77 FCR 307
Le Lievre v Gould [1893] 1 QB 491
1 citation
Jump To
Cite 1 - [1893] 1 QB 491
Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314
4 citations
Jump To
Cite 1 - (1985) 1 NSWLR 314
Cite 2 - (1985) 1 NSWLR 314
Cite 3 - (1985) 1 NSWLR 314
Cite 4 - (1985) 1 NSWLR 314
Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1986) 61 ALJR 280
1 citation
Jump To
Cite 1 - (1986) 61 ALJR 280
Legal & General Life v A Hudson (1985) 1 NSWR 314
1 citation
Jump To
Cite 1 - (1985) 1 NSWR 314
Lister v Romford Ice & Cold Storage Co Ltd (1957) AC 555
3 citations
Jump To
Cite 1 - (1957) AC 555
Cite 2 - (1957) AC 555
Cite 3 - (1957) AC 555
MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALJR 313
1 citation
Jump To
Cite 1 - (1996) 140 ALJR 313
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556
3 citations
Jump To
Cite 1 - (1968) 122 CLR 556
Cite 2 - (1968) 122 CLR 556
Cite 3 - (1968) 122 CLR 556
Perre v Apand Pty Ltd (1999) 198 CLR 180
2 citations
Jump To
Cite 1 - (1999) 198 CLR 180
Cite 2 - (1999) 198 CLR 180
Re Carus-Wilson & Greene (1886) 18 QBD 7
1 citation
Jump To
Cite 1 - (1886) 18 QBD 7
Re Carus-Wilson and Greene (1986) 60 ALJ 8
1 citation
Jump To
Cite 1 - (1986) 60 ALJ 8
Reid Hewitt & Co. v Joseph (1918) AC 717
4 citations
Jump To
Cite 1 - (1918) AC 717
Cite 2 - (1918) AC 717
Cite 3 - (1918) AC 717
Cite 4 - (1918) AC 717
San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340
1 citation
Jump To
Cite 1 - (1986) 162 CLR 340
Serisier Investments Pty Ltd v English [1989] 1 Qd R 678
5 citations
Jump To
Cite 1 - [1989] 1 Qd R 678
Cite 2 - [1989] 1 Qd R 678
Cite 3 - [1989] 1 Qd R 678
Cite 4 - [1989] 1 Qd R 678
Cite 5 - [1989] 1 Qd R 678
Stumm v Dixon & Co. (1889) 22 QBD 529
1 citation
Jump To
Cite 1 - (1889) 22 QBD 529
Sutcliffe v Thackrah (1974) AC 727
1 citation
Jump To
Cite 1 - (1974) AC 727
Tepko Pty Ltd v Water Board [2001] HCA 19
1 citation
Jump To
Cite 1 - [2001] HCA 19
Thiess Watkins White Construction Ltd (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452
1 citation
Jump To
Cite 1 - [1992] 2 Qd R 452
Thompson v Faraonio (1979) 54 ALJR 231
1 citation
Jump To
Cite 1 - (1979) 54 ALJR 231
Ultramares Corporation v Touche (1931) 174 NE 441
3 citations
Jump To
Cite 1 - (1931) 174 NE 441
Cite 2 - (1931) 174 NE 441
Cite 3 - (1931) 174 NE 441
Wickham Properties Pty. Ltd. v Astor Motel Pty. Ltd.[1994] 1 Qd R 211; [1991] QSCFC 22
1 citation
Jump To
Cite 1 - [1994] 1 Qd R 211
Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830
3 citations
Jump To
Cite 1 - [1998] 1 WLR 830
Cite 2 - [1998] 1 WLR 830
Cite 3 - [1998] 1 WLR 830
Wylie v ANI Corporation Ltd[2002] 1 Qd R 320; [2000] QCA 314
2 citations
Jump To
Cite 1 - [2000] QCA 314
Cite 2 - [2000] QCA 314

Cases Citing

Case NameFull CitationFrequency
After Mallonland: Testing for a Duty of Care Against Purely Economic Loss (2025) 2 QLJ 185 1 citation
AGL Energy Ltd v Queensland Competition Authority [2009] QSC 1164 citations
Aion Corporation Pty Ltd v Yolla Holdings Pty Ltd [2013] QSC 2164 citations
Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) (No 2) [2017] QSC 2662 citations
Alborn v Stephens [2010] QCA 583 citations
Allianz Australia Insurance Ltd v Swainson [2011] QCA 1792 citations
Asbog Veterinary Services Pty Ltd v Barlow [2020] QDC 1122 citations
Attorney-General v Barnes [2014] QCA 1523 citations
Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd (No 2) [2019] QSC 2493 citations
Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QSC 1223 citations
Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc (No 2) [2009] QSC 2012 citations
Avilake Pty Ltd v Tucker and Anor (No 2) [2012] QCAT 1182 citations
Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd (No 2) [2015] QSC 2031 citation
Berenyi v Maynard [2016] QSC 253 citations
Binaray Pty Ltd v RAMS Financial Group Pty Ltd [2019] QSC 332 citations
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2015] 1 Qd R 228; [2013] QCA 3947 citations
Body Corporate for Nobbys Outlook CTS 14822 v Lawes [2013] QDC 3012 citations
Body Corporate for Ocean Plaza Apartments CTS 5879 v Valuer-General; Body Corporate for Points North CTS 4774 v Valuer-General (No 2) [2025] QLC 172 citations
Bosk v Burgess & QBE Insurance (Australia) Limited [2022] QSC 79 1 citation
Brazier v Pohlmann [2005] QSC 102 citations
Brose v Baluskas (No 2) [2018] QDC 2392 citations
Buchan v Young (No 2) [2020] QDC 2482 citations
Bulsey v State of Queensland [2016] QCA 1585 citations
Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 6) [2016] QSC 2291 citation
Campbell v Turner (No 2) [2008] QCA 1894 citations
Canaipa Developments Pty Ltd v TLC Jones Pty Ltd (No 2) [2021] QSC 3312 citations
Cape Byron Power I Pty Ltd v Downer Energy Systems Pty Ltd [No 2](2023) 14 QR 104; [2023] QSC 7613 citations
Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106957 (No 2) [2019] QDC 2102 citations
Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106957 (No 3) [2019] QDC 2382 citations
Cerutti v Crestside Pty Ltd[2016] 1 Qd R 89; [2014] QCA 3312 citations
Chambers v Brice [2014] QSC 522 citations
Chief Executive Officer of Customs v Powell [2015] QDC 971 citation
Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [No 2] [2024] QSC 642 citations
Commissioner of Taxation v Croft (No 2) [2016] QSC 2831 citation
Consortium Holdings Pty Ltd v Maybell 1 Pty Ltd (No 2) [2015] QSC 971 citation
Cook v Alderson (No.2) [2025] QSC 511 citation
Cook's Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QSC 2201 citation
Day v Humphrey [2018] QCA 3213 citations
De Whalley Farrall v Money (No 3) [2019] QDC 72 citations
Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 3481 citation
Delta Pty Ltd v Mechanical and Construction Insurance Pty Ltd[2019] 3 Qd R 438; [2019] QCA 625 citations
Devpro v Seamark Pty Ltd [2006] QSC 3922 citations
ESR Investment Management 2 (Australia) Pty Limited v AllRoads Pty Ltd (No 2) [2023] QSC 2583 citations
Fick v Groves [2010] QSC 892 citations
Formosa v Maroochy Shire Council (No 2) [2012] QPEC 213 citations
Foxworth Pty Ltd v Polwood Pty Ltd (No 2) [2007] QSC 4032 citations
Fulcher v Knott Investments Pty Ltd [2012] QSC 2322 citations
Furniss v Blue Sky Alternative Investments Limited (No 2) [2021] QSC 1214 citations
GEJ & MA Geldard Pty Ltd v Mobbs (No 3) [2011] QSC 2972 citations
Gladstone Area Water Board v AJ Lucas Operations Pty Ltd [2015] QSC 522 citations
Goomboorian Transport Pty Ltd v Hanson (No 2) [2018] QSC 1821 citation
Gray v Morris[2004] 2 Qd R 118; [2004] QCA 51 citation
Greig v Commissioner of Taxation (No 2) [2010] QSC 2654 citations
Gunderlong Mackay Pty Ltd v Simpkin [No 2] [2025] QSC 48 2 citations
Gympie Regional Council v Tregoning [2017] QPEC 202 citations
Ham v Clarke [2022] QDC 1592 citations
Hamcor Pty Ltd v Marsh Pty Ltd [2013] QCA 3953 citations
Heathcote v Oaky Creek Coal Pty Ltd (No 2) [2021] QSC 2183 citations
Hemelaar v Walsh (No 2) [2017] QDC 1952 citations
Herrod v Johnston[2013] 2 Qd R 102; [2012] QCA 3601 citation
Ide Enterprises Pty. Ltd. v Hale's Engineering Pty. Ltd. (No. 2) [2015] QDC 1042 citations
Imam v Life (China) Company Limited [2021] QSC 1991 citation
IW & CA Price Constructions Pty Ltd v Australian Building Insurance Services Pty Ltd [2017] QSC 782 citations
Keeley v Horton [2016] QCA 2533 citations
Kelly v Slade [2018] QDC 182 citations
Kilvington v Grigg [No 2] [2011] QDC 374 citations
Lancini Properties Pty Ltd v Savills (Qld) Pty Ltd [2009] QSC 323 2 citations
Linwood Group Pty Ltd v Grange Warner Pty Ltd (No 2) [2016] QDC 551 citation
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2021] QSC 1322 citations
Mallonland Pty Ltd v Advanta Seeds Pty Ltd(2021) 7 QR 234; [2021] QSC 744 citations
Mather v Smith (No 2) [2014] QCA 663 citations
McCoombes v Curragh Queensland Mining Limited [2001] QDC 1421 citation
McDermott v Robinson Helicopter Company (No 2)[2015] 1 Qd R 295; [2014] QSC 2138 citations
McIntosh v Linke Nominees Pty Ltd[2010] 1 Qd R 152; [2008] QCA 4105 citations
Mercantile Mutual Health Ltd v Commissioner of Stamp Duties[2003] 2 Qd R 515; [2002] QCA 3561 citation
Mesana Pty Ltd v Zamia Investments Pty Ltd (No 2) [2010] QSC 4511 citation
Midson Construction (Qld) Pty Ltd v Queensland Building and Construction Commission (No 2) [2018] QSC 2863 citations
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 2714 citations
Mio Art Pty Ltd v Mango Boulevard Pty Ltd (No 3) [2013] QSC 953 citations
Mitchell Ogilvie Menswear Pty Ltd v Rapid Edge Pty Ltd [2019] QSC 1368 citations
Motorline South City Pty Ltd v Cosmetic Suppliers Pty Ltd (No 2) [2016] QDC 651 citation
Mr Green Pty Ltd v Broadbeach Bowls & Community Club Inc. (No 2) [2018] QDC 653 citations
Murdoch v Lake [2014] QCA 2691 citation
Murphy Farming Pty Ltd v Gralike (No 2) [2016] QDC 1552 citations
National Management Group Pty Ltd v Biriel Industries Pty Ltd (No 2) [2019] QSC 2764 citations
Nerang Subdivision Pty Ltd v Hutson [No 2] [2024] QSC 10 3 citations
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. (No 3) [2022] QLC 52 citations
Nguyen v Condo [2014] QSC 239 3 citations
Nicholas v Sambrook Grant Lawyers [2017] QDC 3072 citations
Nicholl Holdings Pty Ltd v Maharaj (No 2) [2008] QSC 1332 citations
Peter Carter Transport Pty Ltd v Swansway No. 2 Pty Ltd [2021] QDC 1092 citations
Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd [2013] QCA 3364 citations
Queensland Chamber of Commerce & Industry Ltd v Commissioner of State Revenue (No 2) [2015] QSC 1153 citations
Queensland Industrial Minerals Pty Ltd v Younger [2017] QLC 542 citations
Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd (No 2) [2016] QMC 261 citation
Russell v Queensland Television Pty Ltd (No 2) [2019] QDC 2171 citation
Scanlon v McLeay (No 2) [2018] QDC 593 citations
Sentinel Springwood Retail Pty Ltd v Tomlinson [2021] QDC 2191 citation
Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 2393 citations
Sochorova v Commonwealth [2012] QCA 1521 citation
Solar Panel Xpress Pty Ltd v Wallandale Pty Ltd [2021] QDC 451 citation
Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 393 citations
St George Partnership Finance Limited v Dascam Pty Ltd [2002] QSC 77 1 citation
State Mercantile Pty Ltd v Oracle Telecom Pty. Ltd. (No. 2) [2017] QDC 602 citations
Stewart v Fehlberg (No 3) [2008] QSC 3293 citations
Stewart v Metro North Hospital and Health Service [No 2] [2024] QSC 951 citation
Sunshine Coast Regional Council v Gavin (No. 2) [2021] QPEC 22 citations
Symbolic Resources Pty Ltd v Kingham (No 2) [2021] QSC 406 citations
Thallon Mole Group Pty Ltd v Morton [2022] QDC 2242 citations
Thallon Mole Group Pty Ltd v Morton [No 2] [2022] QDC 2902 citations
The Australian Institute for Progress Ltd v The Electoral Commission of Queensland (No 2) [2020] QSC 174 3 citations
The President's Club Ltd v Palmer Coolum Resort Pty Ltd (No 2) [2020] QSC 11 7 citations
Toohey v Golder (No 2) [2022] QSC 931 citation
Toohey v Golder (No 3) [2022] QSC 1761 citation
Wagners Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Ltd (No 2) [2020] QSC 1631 citation
Wagners Cement Pty Ltd v Boral Resources (Qld) Pty Limited & Anor [2021] QCA 791 citation
Waller Projects Pty Ltd v F.W. Estate Pty Ltd (No 2) [2025] QSC 1001 citation
West v Blackgrove [2012] QCA 3213 citations
Westpac v Commissioner of State Revenue [2004] QSC 192 citations
Wicks v Workers' Compensation Regulator (No. 2) [2021] QIRC 1124 citations
Workcover Queensland v Wallaby Group Ltd [2020] QDC 1882 citations
Wu v Yu [2018] QDC 2281 citation
Zevering v Callaghan[2012] 1 Qd R 194; [2011] QCA 1801 citation
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