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Abigroup Contractors Pty Ltd v Sydney Catchment Authority

Abigroup Contractors Pty Ltd v Sydney Catchment Authority

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Case Copied 11 July 2005 79 min read

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CITATION:
Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2005] NSWSC 662

HEARING DATE(S): 23/05/2005 to 26/05/2005

JUDGMENT DATE :

11 July 2005

JURISDICTION:
Equity

JUDGMENT OF:
McDougall J at 1

DECISION:
I direct the parties, within fourteen days of today's date, to bring in Short Minutes of Order to give effect to these reasons. If the parties cannot agree on the proper costs order to be made, I will hear argument on costs.

CATCHWORDS:
TRADE PRACTICES - where Court of Appeal remitted application for adoption of Referee's report - whether conduct misleading or deceptive - whether plaintiff relied on alleged misleading or deceptive conduct - whether Court should make own findings or refer issues to Referee or another referee - whether Referee's finding that plaintiff suffered no loss or damage should be adopted - - whether Court should adopt or reject Referee's finding that plaintiff was not delayed in achieving Practical Completion - whether Court should adopt or reject Referee's finding that there was no agreement that a claim for extension of time could be brought notwithstanding cl 35.5.5 of contract - whether plaintiff entitled to extension of time under cl 35.5 or cl 23. - ESTOPPEL - estoppel by convention - estoppel by representation - whether plaintiff estopped from bringing s 52 claim - - DAMAGES - causation - assessment of damages - whether damages assessed on "no contract" or "alternative contract" basis - nature of alternative contract - whether plaintiff proved loss or damage on either basis.

LEGISLATION CITED:
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED:
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Coghlan v S H Lock (Australia) Ltd (1985) 4 NSWLR 158
Con-Stan Industries of Australia Pty Ltdv Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, 244
Eslea Holdings Pty LTd v BUtts (1986) 6 NSWLR 175
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1995) 38 NSWLR 615
Franks & Anor v Berem Constructions Pty Ltd (NSWCA 2/12/98, unreported; BC 9806367)
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 79 ALJR 190
Hughes Bros Pty Ltd v Minister for Public Works (Rolfe J, 17 August 1994, unreported; BC 9402885)
IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470
Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) ATPR (Digest) 46-048
March v Stramare (E&MH) Pty Ltd (1991) 171 CLR 506
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Murphy & Anor v Overton Investments Pty Limited (2004) 78AYR 324
Oraka Pty Ltd v Leda Holdings Pty LTd (1997) ATPR 41-558
Peninsula Balmain Pty Limited v Abigroup Contractors Pty Limited [2002] NSWCA 211
Seven Sydney v Fuji Zerox [2004] NSWSC 902
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254, 284
Super Pty Ltd v SJP Formwork (Aust) P/L (1992)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 662
Decision Date: 11 July 2005

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd, as the appellant, brought an appeal against the Sydney Catchment Authority, the respondent, concerning a dispute arising from a construction contract. The primary contention involved the conduct of the respondent in relation to the contract, which the appellant alleged was misleading or deceptive under the Trade Practices Act. Additionally, the appellant sought damages for the respondent's conduct, claiming reliance on the alleged misleading or deceptive conduct. The matter was initially heard in the Federal Court of Australia, which later referred the case to a referee for detailed examination and reporting.

The legal issues that the court had to resolve encompassed several critical areas. Firstly, the court needed to determine whether the respondent's conduct was indeed misleading or deceptive under the Trade Practices Act. Secondly, it had to establish whether the appellant relied on the alleged misleading or deceptive conduct. The court also had to decide whether it should make its own findings on these issues or adopt the referee's report. Additionally, the court had to assess whether the referee's findings that the appellant suffered no loss or damage, was not delayed in achieving practical completion, and that there was no agreement allowing a claim for extension of time should be adopted. Furthermore, the court needed to decide if the appellant was estopped from bringing a claim under section 52 of the Act and whether the damages should be assessed on a "no contract" or "alternative contract" basis.

The court concluded that the referee's findings were not to be adopted, as there was no evidence supporting the claim that the respondent's conduct was misleading or deceptive. The court found that the appellant had not relied on the alleged misleading or deceptive conduct and, therefore, could not have been induced to enter into the contract based on it. The court further held that the appellant had not suffered any loss or damage as a result of the respondent's conduct, and the appellant was not delayed in achieving practical completion. Moreover, the court found no evidence of an agreement that allowed a claim for extension of time. Consequently, the court held that the appellant was not entitled to an extension of time under either clause 35.5 or clause 23 of the contract. The court also ruled that the appellant was not estopped from bringing a claim under section 52 of the Act. Finally, the court determined that the appellant had not proved any loss or damage on either the "no contract" or "alternative contract" basis.

The court's final orders dismissed the appeal and upheld the respondent's position. The court ordered that the appellant pay the respondent's costs of the appeal.

Orders