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ARTICLE · 22 AUGUST 2016

Winky Pop v Mobil: Lost opportunities for land developers

Corrs Chambers Westgarth
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Unless a party has very strong prospects of success, it should think twice before pursuing loss of opportunity damages.

AustraliaReal Estate and Construction
Jillian Button (Formerly With Corrs Chambers Westgarth)
Jillian Button (Formerly With Corrs Chambers Westgarth)
Laura Elliott
Laura Elliott
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A recent decision by the Victorian Supreme Court of Appeal in Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187 has clarified the availability of loss of opportunity damages in land contamination cases.

An overview of the case

In 2006, a petroleum hydrocarbon spill at the Williamstown Mobil refinery site contaminated nearby land owned by Winky Pop via groundwater.

Winky Pop sued Mobil, claiming damages for negligence in the order of $170 million for the loss of opportunity to develop their industrially zoned land for residential purposes. Winky Pop argued that at the time of the leak it was seeking to have the site rezoned, subdivided and redeveloped into a housing estate, which would have yielded significant profits had it not been thwarted by Mobil's contamination.

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