Assessing damages on an alternative transaction basis December 2015 Publication No. 15-03
1 Introduction In the alternative transaction case, the plaintiff will need to have evidence of what it could and would have done had the contravention not occurred, in order to prove that it has suffered loss in consequence of the contravention. 2 To establish damages it is important to articulate the counter-factual, or but-for, scenario: what would have happened, but for the defendant s conduct? A decision which often confronts a plaintiff is whether to claim damages on a no-transaction basis or an alternative transaction basis. The choice has implications for the evidence required and for the quantum of damages. In a previous edition of Damages Matters, we considered recent decisions of the Federal Court and the Queensland Supreme Court which dealt with cases on a no-transaction basis. That article can be accessed through this link. In this edition, Alex Canale and Anh Nguyen, Associate Directors in our Sydney office, discuss a recent decision of the Victorian Court of Appeal which deals with a damages claim on an alternative transaction basis. In BHP v Steuler; Protec v Steuler 1 the Court of Appeal discussed the differences between an alternative transaction case, and a no-transaction case. The Court also provided some clarity on damage claims based on an alternative transaction theory.
2 Background to the dispute In 1998 and 1999, BHP Billiton (Olympic Dam) Pty Ltd ( BHP ) constructed a copper and uranium solvent plant at its Olympic Dam mine in Roxby Downs. Several concrete tanks at the new plant required a specialised lining to be installed. BHP opted to use a lining manufactured by Steuler Industriewerke GmbH ( Steuler ) and sold to Protech Pacific NSW Pty Ltd ( Protech ) for installation. 3 The lining failed, and BHP brought actions against both Steuler and Protech for misleading and deceptive conduct under the Trade Practices Act 2 for representing that the lining was appropriate. At first instance, the Court had found that the representations made by Steuler and Protech were misleading and deceptive; and in a separate judgment had considered what BHP could recover under s82 of the Act. The Court had found that, although Steuler had made a misleading and deceptive representation, BHP s reliance on it had caused no loss. This decision was unsuccessfully appealed by BHP. Did BHP incur a loss entitling it to damages? The trial judge had found that, despite the unsuitability of the liner for its intended purpose, its use had not caused BHP s loss. The judge found that two fires had occurred after the installation of the liner; and that the second fire (which was found to be a supervening event) had resulted in BHP replacing the liner with fire-retardant material as it had to for fire safety and insurance purposes. Moreover, the judge had held that BHP could not prove what it would have done had it not chosen the liner, and was thus unable to prove its loss.
Transaction or no-transaction? 4 Although the trial judge (Habersberger J) had found 3 that BHP was not entitled to damages, he went on to provide an interesting analysis of how damages would have been assessed, had BHP been entitled to them. In so doing, he drew a distinction between a no-transaction case and an alternative transaction case. In a no-transaction case, the plaintiff claims that, but for the misleading representation, it would not have entered into the transaction at all. In an alternative transaction case, the plaintiff claims that it would either have entered into the same transaction but on different terms (e.g. at a different price), or entered into a different transaction completely. On this distinction, Habersberger J at first instance had said that: In a no transaction case, the comparison is rather easier for the plaintiff to establish because the alternative course of action is simply that the plaintiff would not have entered into the transaction at all, but for the representation. However, in the alternative transaction case, the plaintiff will need to have evidence of what it could and would have done had the contravention not occurred, in order to prove that it has suffered loss in consequence of the contravention. Whether a plaintiff advances its case on a no-transaction or alternative transaction basis will depend on the circumstances of the case. However, the finding above suggests that this choice would also be informed by whether there is evidence of a likely alternative transaction, and its financial consequences. The outcome on appeal In BHP, the Court of Appeal found that: By contrast, the circumstances here are those of an alternative transaction case where the comparison to be drawn is between the set of circumstances a plaintiff is actually in and the alternative set of circumstances that the plaintiff would have been in had the contravening conduct not occurred and the plaintiff engaged instead in a different transaction. The circumstances here fall into the category of alternative transaction cases because [BHP] needed to find a liner for its concrete tanks, whether the liner was made of HDPE, FRP or stainless steel. The decision-making process leading up to the selection of HDPE was aimed at evaluating the competing alternative options; it was not a matter of deciding whether to line the concrete tanks or not. As an alternative transaction case, it is necessary to consider the alternative circumstances, and the costs that would have been incurred had those circumstances materialised, to identify the remaining costs that are the result of the transaction in which the plaintiff actually engaged. In this way, the causal contribution made by the contravening conduct can be disentangled from the causal contribution of the other factors that would have occurred in any event. The Court found that the fire in 2001 would, in any event, have required BHP to replace the lining of the tanks with a fireproof lining. The evidence showed that, had the liner not been represented as suitable, BHP would have selected an alternative liner which would also have been required to be replaced in 2001. BHP was therefore unable to demonstrate that it was worse off by using the infringing liner than it would have been if the infringing representation had not been made, and it had entered into an alternative transaction. Accordingly, the Court found that BHP had not established a sufficient alternative transaction case; and it was not able to demonstrate a loss entitling it to damages.
3 Why does the approach to damages matter? Alternative transaction claim potential for higher damages but not without risk! 5 As Habersberger J had made clear at first instance in BHP, the calculation of damages is somewhat easier in a no-transaction case as the hypothetical alternative is that the plaintiff would not have entered into the transaction at all. In the case of a misleading or deceptive representation, as here, the damages available are the losses suffered as a result of relying on the misrepresentation. While a no-transaction case may be conceptually simpler to establish and calculate, the damages available under an alternative transaction case may be greater in some circumstances. This is because under the alternative transaction scenario the plaintiff may be awarded damages for the loss of opportunity to earn profits under an alternative transaction. An example of damages being awarded for the lost opportunity to pursue a more profitable alternative transaction is the decision in Lovick & Sons Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor. 4 The plaintiff in this matter was induced by misrepresentations to purchase a machine for more than its market value. Slattery J accepted that, if not for the misrepresentations, the plaintiff would have purchased an alternative machine from which it could have earned substantially higher profits than those generated from the machine acquired. There were, therefore, claims for two heads of damages: a. The difference between the price paid for the machine and its actual value (which would have been available in both a no-transaction and an alternative transaction case). b. The difference between the profits earned from operating the machine purchased compared to what could have been earned from the alternative machine (only available under an alternative transaction case). Despite some difficulties with the evidence presented, the Court accepted the plaintiff s claim for loss of profits. The claim for the difference between the price paid for the machine and its actual value was not accepted, however, as the plaintiffs failed to call expert evidence to establish the actual market value of the machine at the time of its acquisition. The Court held that [i]n the absence of expert evidence the inference that the plaintiffs submit the Court should draw is no more than speculation. The BHP and Lovick decisions make it clear that it is important to articulate a claim for damages carefully, having established what evidence there is. In particular, these cases demonstrate that: a. No-transaction claims present a lower evidentiary burden, but can limit the potential quantum of a damages award. b. Alternative transaction claims offer a plaintiff an opportunity to seek recompense for the loss of an alternative, and possibly more profitable, use of the invested funds. However, as demonstrated in BHP, where this is the case, courts will look for evidence to establish that the alternative opportunity would have materialised, and to demonstrate what would have been financial consequences. This enquiry may, in fact, show that the plaintiff s position under the alternative transaction would have been no better than its actual position.
But the evidentiary burden is lower in no-transaction cases 6 The High Court decision in Henville v Walker 5 refers to a no-transaction case. An architect, relying on the advice of the vendor s agent as to selling prices, purchased land and built a small block of units. The Court found that the selling prices advised by the defendant were substantially overstated, and the construction costs estimated by the plaintiff were understated, causing the plaintiff to incur a loss on the development. The evidence showed that, but for the statements made by the agent, the architect would not have entered into an alternative transaction: he would simply not have undertaken any project at all. Damages could, therefore, be awarded to the architect for the losses suffered on the development project. The Court awarded damages as the difference between the higher selling price represented by the defendant and the lower price actually achieved. It is noteworthy that had the plaintiff expressed his claim for damages differently, so as to claim the entire cost of the development, it is likely that he would have been successful in claiming additional damages. This is suggested in obiter by the majority, who indicated that they were prepared to award the plaintiff the full measure of loss incurred through entering into the purchase of the land and the subsequent development. However, as the plaintiff limited his claim to the differences in selling prices, the construction cost loss was not taken into account in the damages awarded. BHP attempted to draw a similar argument as Henville, but the Court of Appeal did not agree that the cases were analogous: We doubt the utility of BHP s reliance on Henville v Walker because there the plaintiff recovered all his losses as he would not have embarked on the project at all were it not for the contravening conduct. In the language used by the judge, Henville v Walker was a no transaction case. It was this that accounted for the need to compare the position of the plaintiff, after the contravening conduct, to the hypothetical circumstance of his not having embarked on the project at all, as Hayne J emphasised. By contrast, the circumstances here are those of an alternative transaction case
4 Conclusion 7 Clarifying whether a claim is based on a no-transaction or an alternative transaction case can minimise evidentiary challenges at a late stage in the litigation process, as well as providing a clear focus on the heads of damages that may be available. The cases discussed in this article demonstrate the importance of clearly articulating the basis of any claim for damages. BHP and Lovick are recent examples of claims for damages advanced on an alternative transaction basis. The contrasting outcomes show the potential risks and rewards of such an approach. A plaintiff pleading an alternative transaction may get higher damages award than one pleading a no-transaction case. But the former plaintiff must demonstrate the likely financial consequences of the alternative transaction. In contrast, the decision in Henville shows how the evidentiary burden is lower in no-transaction cases, but also highlights the need for a plaintiff to claim all elements of its losses. Endnotes 1. [2014] VSCA 338 2. The Trade Practices Act has since been repealed and replaced with the Competition and Consumer Act 2010 (Cth). 3. [2011] VSC 659, [34]. 4. (No 2) [2012] NSWSC 1579. 5. [2001] HCA 52 About the authors Alex Canale Associate Director Sydney +61 2 8257 3098 acanale@kordamentha.com Alex has over eight years of experience in auditing, corporate advisory and forensic accounting. Alex has assisted in the preparation of independent business reviews, expert reports and on commercial engagements across a range of industries. He has been designated a Business Valuation Specialist by Chartered Accountants Australia and New Zealand and has extensive experience understanding complex cash-flows and associated financial metrics. Anh Nguyen Associate Director Sydney +61 2 8257 3074 anguyen@kordamentha.com Anh specialises in dispute analysis, business valuations and financial modelling, with over six years of experience providing forensic accounting and business valuation services to clients. Anh also has a range of experience across financial investigations and fraud risk management, including a secondment to a multinational corporate client.
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