Recent developments in commercial damages
By the Hon Justice Ian Pike
As the title of my talk suggests, I propose to delve into some recent cases on commercial damages.
I need to begin however, by defining what I include in the term ‘commercial damages’.
A narrow view of the term would focus on damages recoverable by a commercial entity as a result of a common law wrong, such as a breach of contract or a tort. I have not taken such a narrow view. Rather, I have sought also to look at commercial damages from the other end — namely the damages that may need to be paid by commercial organisations for wrongs they have committed.
Such an inquiry has been brought into sharper focus by the increasing prevalence of class actions or representative proceedings in Australia promoted, at least in part, by legislation, particularly in Victoria, permitting law practices to encourage contingency fees.
Such actions have the potential for significant damages awards against corporations.
Quite often these class actions focus on statutory causes of action, principally under the Australian Consumer Law (ACL).
Late last year the High Court had occasion to consider the proper measure of loss under the ACL in the context of defective products in Williams and Capic.
Such cases are, in my view, properly the subject of any review of cases on commercial damages.
Before dealing with Williams and Capic, I deal relatively briefly with an earlier High Court decision from 2024 — Cessnock City Council v 123 259 932 Pty Ltd (Cessnock), and the cases that have considered it.
Fiduciary duties in a commercial context: from Hospital Products Limited v United States Surgical Corporation to Jaken Properties Australia Pty Ltd v Naaman
By the Hon Fabian Gleeson SC
The focus of this seminar is the circumstances in which a commercial relationship between parties is supplemented by a fiduciary relationship. Reference will be made to the principles stated in the leading High Court cases in the 1980s, and the application of those principles in subsequent High Court and intermediate appellate cases, including in the context of distributorship agreements, joint ventures, proposed business enterprises, stockbroker-client, employee-employer, and former-successor trustees of trading trusts. The discussion assumes an understanding of the remedial significance of the equitable remedies available for breach of fiduciary duty against the fiduciary and the accessorial liability of third parties.
A tale of two tenements: the construction and validity of registered easements
By Seung Chan Rhee and Jerry Leung
What is the proper approach towards construing a registered easement? And when will an easement be invalid for the reason that the rights purportedly conferred are not capable of forming the subject matter of a grant? Both of these foundational questions were recently examined by the New South Wales Court of Appeal in Theunissen v Barter1 and Dickson v Petrie.
Taking free & proceeds under the PPSA: Metal Manufacturers Pty Ltd v Westrac Pty Ltd [2025] NSWCA 97
By Adam Waldman
The recent New South Wales Court of Appeal case of Metal Manufacturers Pty Ltd v WesTrac Pty Ltd (‘Metal Manufacturers’) contains important analysis of the taking free rules, and the meaning of ‘proceeds’, under the Personal Property Securities Act 2009 (Cth) (‘PPSA’). This case note summarises the decision. It then critically analyses its treatment of who is capable of taking free under s46 of the PPSA, and the meaning of the statutory provisions concerning proceeds.
Contract law master class 2025. Part 2 of 2
By Jeffrey Goldberger
• Rectification by construction
• Proprietary and promissory estoppel in Australian and English equity
• The effect of common mistake on contract formation at common law and in equity