Auburn Council v Michael Davies Associates Pty Ltd (trading as Michael Davies Associates)

The appeal concerned a dispute between Auburn Council and Michael Davies Associates Pty Ltd (trading as Michael Davies Associates) regarding a construction management contract with a guaranteed maximum price (GMP). The cost of the works exceeded the GMP, and the contractor claimed additional sums, asserting that the scope of works had increased. The primary issue was whether the architect had made a misleading representation to the Council that the GMP contract provided certainty that the cost would not exceed the stated maximum.

The court was required to determine whether the architect engaged in misleading conduct under the Trade Practices Act 1973 (C'th). Specifically, the court considered whether the architect's conduct was misleading because the tender drawings and other documentation were not fully developed for a fixed-price contract, or because the architect failed to adequately inform the Council that the construction manager might claim entitlement to additional sums due to the development of the documentation.

The court found no error in the trial judge's conclusion that the architect had not made a misleading representation. The judges reasoned that, on the facts of the case, the architect's conduct did not amount to misleading conduct. The documentation not being fully developed did not, in itself, constitute misleading conduct in the context of the contract, nor did the architect's communication with the Council about potential claims for additional sums.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.