Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

At first instance, the trial judge considered that, on the balance of probabilities, the plaintiffs would have concluded the first Pagini agreement but for the misrepresentations by Poseidon and Sellars. On that basis, the plaintiffs were awarded the benefits represented by the first Pagini agreement, net of the benefits under the second Pagini agreement, evidenced by quantum experts. However, the trial judge then discounted the loss by 40% to reflect the probability that the agreement would not have proceeded due to the precedent conditions not being met. Both the Full Court of the Federal Court and the High Court dismissed appeals by Poseidon and Sellars. The High Court found that, but for the contravening conduct in that case, the plaintiff would have entered into a potentially valuable agreement with a third party and that ‘[a] lthough on the probabilities, [the agreement] would not have been completed, there was a significant chance’ that that would have occurred’. 339

339 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 356.

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