Case: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 
Outcome: applied
In HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 the facts are summarised in the headnote. Before purchasing a small shopping arcade, a prospective purchaser obtained advice from a valuer about the local retail tenancy market, but not the value of the arcade itself. The valuer advised that the construction of a new shopping centre nearby was not likely to affect existing retail tenancy levels adversely. Relying on that advice, in April 1997 the purchaser entered into a contract to purchase the arcade. By March 2000, after the opening of the new shopping centre, the arcade had suffered a collapse in gross rental income with a concomitant fall in value. The purchaser tried to sell the arcade without success. 184 While a central aspect of the decision was the notion that loss was not confined to the loss at the time of acting upon the advice and could include evidence of loss ascertainable later in time but referable to the conduct in issue, the High Court made it clear that if the plaintiff had learned the day after entering into the contract, or the day after completing the contract, that the defendant's conduct had been misleading as later found, it could have started proceedings then and there: at [25] and [28]. 185 The High Court, in HTW Valuers , distinguished Wardley Australia on the ground that the case was dealing with risk of loss only: at [29]. That reasoning arises from the fact that Wardley Australia was an indemnity case, so that there was no actual loss unless and until a loss was suffered under that indemnity, which was an event that might never occur. Unlike an asset worth less than was paid for it by reason of misleading or deceptive conduct, an indemnity cannot give rise to a loss until the party providing the indemnity is liable to pay. 188 There is no doubt that when DFE entered into the SSD on 23 January 2004 and paid the sum of $530,000 to APIR in subscribing for 200,000 shares in APIR, it suffered a loss measured by reference to the difference between what it paid in ignorance of the existence of the second heads of agreement and what it, as a rational investor, would have paid, if anything, in the knowledge of the existence of the second heads of agreement; or what was described in HTW Valuers , at [36], by reference to authority, as the 'real value' or 'fair value' or 'what would have been a fair price to be paid ... in the circumstances ... at the time of the purchase'. Similarly, for the 81,904 hares in APIR it purchased from existing shareholders for the sum of $217,045.60. 189 Although the Court is entitled to take into account events after the date of acquisition, when assessing damages by comparing the price and the real value of the asset at the date of the acquisition, in relation to s 82 of the TP Act (see Kizbeau Pty Ltd v W G &amp; B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281) , it must, as the High Court said in HTW Valuers at [40], '... distinguish among possible causes of the decline in value of what has been bought' and, in doing so, embrace the dichotomy of Dixon J in Potts v Miller (1940) 64 CLR 282 at 298. '...If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be "dependent," "extrinsic," "supervening" or "accidental," then the additional loss is not the consequence of the inducement ...'