Abigroup Contractors Pty Ltd v Sydney Catchment Authority - [2003] NSWSC 634

CITATION: Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2003] NSWSC 634

HEARING DATE(S): 24.02.03; 25.02.03; 26.02.03; 28.02.03

JUDGMENT DATE:
23 July 2003

JURISDICTION:
Equity Division
Technology & Construction List

JUDGMENT OF: Nicholas J

DECISION: Order Plaintiff's Notice of Motion dismissed. Order that Referee's Report be adopted and Defendant entitled to orders sought in its Notice of Motion.

CATCHWORDS: PRACTICE AND PROCEDURE - CONTRACT - TENDER - REFERENCE - Whether Defendant's conduct in non-disclosure of additional information in its possession was misleading and/or deceptive - Whether Referee erred in decision - Whether Referee's Report should be adopted HELD: Referee's Report should be adopted - Plaintiff's Notice of Motion for rejection of Report dismissed - Defendant entitled to orders sought in its Notice of Motion that Report be adopted

LEGISLATION CITED: Fair Trading Act 1987 (NSW) s 42
Trade Practices Act 1974 (Cth) s 52

CASES CITED: Abigroup v Peninsula Balmain [2001] NSWSC 752
Chloride Batteries of Australia Pty Ltd v Glendale Chemical Products (1988) 17 NSWLR 60
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615
Franks v Berem Constructions Pty Ltd (NSWCA, 2 December 1998, Unreported)
Jarvan Pty Ltd (in liq) formerly John R. Carr & Associates Pty Ltd v Seery (NSWCA ,1 December 1998, Unreported)
Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49
Miba Pty Ltd & Ors v Nescor Industries Group Pty Ltd & Anor (1996) 141 ALR 525
Peabody Resources Ltd v Allco Constructions Pty Ltd (NSWSC, 14 March 1994, Unreported)
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525
Yorke v Lucas (1985) 158 CLR 661

PARTIES :
Abigroup Contractors Pty Ltd - Plaintiff
Sydney Catchment Authority - Defendant

FILE NUMBER(S): SC 55045/01

COUNSEL: C G Gee SC/F C Corsaro QC/R Rana - Plaintiff
S R Donaldson SC/M Dempsey - Defendant

SOLICITORS: Clayton Utz - Plaintiff
Phillips Fox - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

NICHOLAS J

23 July 2003

55045/01 Abigroup Contractors Pty Ltd v Sydney Catchment Authority

JUDGMENT

Abigroup

1 HIS HONOUR: These proceedings arise from disputes between the Plaintiff (Abigroup) and the Defendant (SCA) which were parties to an agreement made on 24 December 1998 pursuant to which Abigroup undertook the design, development and the construction of an auxiliary spillway at the Warragamba Dam for SCA for the sum of $85,709,094.55 consisting of a lump sum price of $73,358,980.04 and provisional sums of $10,350,114.50.

2 In its Amended Summons Abigroup stated the dispute in these terms:

“The Plaintiff is carrying out the design development and construction of an auxiliary spillway for the Warragamba Dam.

The Plaintiff alleges that in its Invitation to Tender Sydney Water Corporation Limited (‘SWC’) provided information and made representations relating to the location of rock levels in the Folly Creek area of the Works. In doing so, SWC did not disclose information in its possession showing ground surface…

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: [2003] NSWSC 634
Decision Date: 23 July 2003

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd, the plaintiff, initiated proceedings against Sydney Catchment Authority, the defendant, due to allegations of misleading and deceptive conduct during the tender process for a contract. The case was heard and determined by the Supreme Court of New South Wales. The plaintiff claimed that the defendant failed to disclose additional information it possessed, which was pertinent to the tender process, thus impacting the fairness of the competition. The defendant argued that any alleged non-disclosure was not misleading or deceptive and sought to have the referee's report, which favoured the plaintiff, rejected.

The primary legal issues before the court were whether the defendant's conduct constituted misleading and deceptive behaviour and whether the referee erred in their decision. The court needed to determine if the referee's report should be adopted in light of the defendant's submissions. The plaintiff also sought an order dismissing the defendant's motion to reject the referee's report, while the defendant aimed to have the referee's report adopted.

The court examined the evidence and submissions from both parties to ascertain the conduct of the defendant and its implications. The court found that the referee's conduct and findings were appropriate and did not err in any material respect. The court held that the referee's report should be adopted, and the defendant's motion to reject the referee's report was dismissed. Consequently, the defendant was entitled to the orders sought in its motion, which included the adoption of the referee's report. The court concluded that the defendant's conduct did not amount to misleading or deceptive behaviour, and the plaintiff's claims were accordingly dismissed.

Orders