Case: Allianz Australia Insurance Limited v GSF Australian Pty Limited [2005] HCA 26 ; (2005) 221 CLR 568
Outcome: applied
is important for this purpose to have regard to the statutory subject, scope and purpose of the Trade Practices Act , as Gummow, Hayne and Heydon JJ observed in Allianz Australia Insurance Limited v GSF Australian Pty Limited [2005] HCA 26 ; (2005) 221 CLR 568 at 597 [99] . Thus, s 2 of the Act states: "The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provisions of consumer protection." Their Honours explained the principles of assessment of loss under s 82 as follows ( Allianz 221 CLR at 597-598 [100]): " [100] In I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 119 [26] ), Gleeson CJ said of the construction of s 82: 'When a court assesses an amount of loss or damage for the purpose of making an order under s 82 , it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part. It is attributing legal responsibility; blame. This is not done in a conceptual vacuum. It is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case. Those requirements are not determined by a visceral response on the part of the judge assessing damages, but by the judge's concept of principle and of the statutory purpose.' The upshot in I &amp; L Securities was the holding stated by Gaudron, Gummow and Hayne JJ ( I &amp; L Securities [2002] HCA 41 ; (2002) 210 CLR 109 at 128 [57] (footnotes omitted)). (See also at 121-122 [33], per Gleeson CJ; at 132 [69] per McHugh J.): '[T]he question presented by s 82 of [the TP Act] is not what was the (sole) cause of the loss or damage which has allegedly been sustained. It is enough to demonstrate that contravention of a relevant provision of [that] Act was a cause of the loss or damage sustained.' (Original emphasis.)" A large number of apartments in the resort were sold after Mustara collapsed. Some were comparable with Ms Tan-Bounkeua's apartment. The pattern that emerged after Mustara's collapse until about mid 2004 was that market prices realised for apartments in the resort were generally greater than the purchase prices. In about mid 2004 they became similar. However, considerable difficulty was experienced in achieving sales of quite a number of units, including Mr Owers'. And, the number of properties which had been listed for sale, but not sold, had increased markedly since the turn of the market in mid 2004. By mid 2005 the market had turned down and almost all the properties in the resort were sold at a price less, and sometimes up to about 25% less, than their acquisition cost. Mr Dupont noted that the more recent sales results were in marked contrast to movements in median sale prices of apartments in Wyong Shire during the period between 2000 and 2007. He said that, although sale prices in the resort were slightly erratic, there was a general weighting indicating an increase in value of apartments in the resort of around 40%-50% from 2000 to the peak of the market in 2004. In comparison, median values of ordinary residential units (without a restriction on use similar to that affecting the resort) in Wyong Shire increased by 84% in the same period. He said that the reduction in values in recent years was partly a result of over supply in The Entrance unit market, as well as a general softening of the property market due to interest rate rises, affordability and macro economic conditions.