Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3)

Abigroup Contractors Pty Ltd appealed to the New South Wales Court of Appeal against a decision of a Referee concerning claims of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) against the Sydney Catchment Authority. The dispute centred on whether Abigroup suffered loss as a result of the Authority's conduct.

The Court of Appeal was required to determine whether the Referee had erred in his assessment of causation and damages. Specifically, the court had to consider the proper interpretation of the phrase "by conduct of" in section 82 of the *Trade Practices Act*, and whether the Referee had adequately analysed the competing expert evidence presented. The court also had to consider whether Abigroup was entitled to prove loss on a discrete portion of the contract.

The Court of Appeal held that the Referee had failed to give adequate attention to the evidence, particularly in his examination and analysis of the competing expert evidence. The court found that the "but for" test of causation was not applicable on the facts of this case and that the approach to damages should be flexible to avoid injustice. The court determined that Abigroup was entitled to prove loss on a discrete portion of the contract.

Consequently, the Court of Appeal allowed the appeal, dismissed the cross-appeal, and set aside the Referee's verdict and judgment. The matter was remitted to the Supreme Court for redetermination of the quantum of damages and the issues of delay and acceleration, with directions for the parties to advise the Court on any agreements reached. The respondent was ordered to pay the appellant's costs of the appeal and cross-appeal.