Legal Research
Cases
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd

Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd

Link copied

Case Copied 25 September 2008 24 min read

Contents

On this page

New South Wales

Court of Appeal

CITATION: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228

HEARING DATE(S): 29 July 2008

JUDGMENT DATE:
25 September 2008

JUDGMENT OF: Spigelman CJ at 1; Allsop P at 1; Campbell JA at 63

DECISION: Appeal dismissed with costs.

CATCHWORDS: CONTRACT – Cost-plus contract – Authorised subcontractor – Where subcontractor a related company – Cost of services by subcontractor - DAMAGES – Claim in tort of deceit and misleading conduct – Loss pursuant to contract only – Relevance of contractual loss to breach of tort or statute - PRACTICE AND PROCEDURE – Referees’ report – Review and adoption of report – Exercise of discretion – Appeals – Principles to be applied

LEGISLATION CITED: Australian Constitution
Civil Procedure Act 2005
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth)

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Buckley v Bennell Design Constructions Pty Ltd (1978) 140 CLR 1
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Coulton v Holcombe (1980) 162 CLR 1
CPC Energy Pty Ltd v Bellevarde Constructions Pty Ltd [2007] NSWSC 1397
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615
House v The King (1936) 55 CLR 499
Nicholls v Stamer [1980] VR 479
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193

PARTIES: Bellevarde Constructions Pty Ltd (First Appellant)
John Francis Fielding (Second Appellant)
CPC Energy Pty Ltd (Respondent)

FILE NUMBER(S): CA 40871/2007

COUNSEL: (Appellant) B W Walker SC with R D Marshall
(Respondent) M J Slattery QC with R A Parsons

SOLICITORS: (Appellant) Dibbs Abbott Stillman
(Respondent) Summit Law

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 55062/2005

LOWER COURT JUDICIAL OFFICER: Einstein J

LOWER COURT DATE OF DECISION: 25 September 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 1397

CA 40871/2007

SPIGELMAN CJ
ALLSOP P
CAMPBELL JA
Thursday 25 September 2008

Bellevarde Constructions Pty Ltd & Anor v CPC Energy Pty Ltd

Judgment

1 SPIGELMAN CJ and ALLSOP P: The respondent (“CPC”) commenced proceedings in the Technology and Construction List of the Equity Division of the Supreme Court seeking relief with respect to a cost-plus building contract pursuant to which the appellants (“Bellevarde”) as builder undertook to demolish buildings and construct apartments for CPC.

2 The proceedings were referred out to the Honourable Moreton Rolfe QC and Ms Janet Grey as referees. By a report dated 9 July 2007 the referees recommended that certain aspects of CPC’s case should be upheld and consequential orders made.

3 A number of matters were disputed before Einstein J who concluded that the referees’ report should be adopted and made consequential orders. (CPC Energy Pty Ltd v Bellevarde Constructions Pty Ltd [2007] NSWSC 1397.) Bellevarde seeks…

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.

Keep reading for free

Create a free CaseChat account to read Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWCA 228
Decision Date: 25 September 2008

CaseChat Overview and Summary

Bellevarde Constructions Pty Ltd (Bellevarde) appealed to the New South Wales Court of Appeal against a decision of the primary judge who had adopted a referee's report. The dispute concerned the cost of services provided by a subcontractor, CPC Energy Pty Ltd (CPC Energy), under a cost-plus contract with Bellevarde. Bellevarde alleged that CPC Energy had engaged in deceit and misleading conduct, seeking damages in tort and under statute, but framed its loss by reference to the contractual entitlements.

The Court of Appeal was required to determine whether the primary judge erred in adopting the referee's report, particularly in relation to the assessment of costs for services provided by a subcontractor that was a related company of CPC Energy. Further, the Court had to consider the relevance of contractual loss to claims made in tort and under statute, and whether Bellevarde's loss was confined to what it might recover under the contract.

The Court of Appeal upheld the primary judge's adoption of the referee's report, finding no error in the exercise of discretion. It was held that the referee had properly considered the evidence regarding the costs incurred by the related subcontractor. The Court also clarified that while a claim in tort or under statute might arise from misleading conduct, the measure of loss in such claims is not necessarily limited to contractual entitlements. However, in this instance, the evidence presented by Bellevarde did not establish a loss beyond what was contemplated by the contract, and therefore, the claims in tort and statute were not made out on the facts.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228
HEARING DATE(S):	29 July 2008
JUDGMENT DATE:	25 September 2008
JUDGMENT OF:	Spigelman CJ at 1; Allsop P at 1; Campbell JA at 63
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACT – Cost-plus contract – Authorised subcontractor – Where subcontractor a related company – Cost of services by subcontractor - DAMAGES – Claim in tort of deceit and misleading conduct – Loss pursuant to contract only – Relevance of contractual loss to breach of tort or statute - PRACTICE AND PROCEDURE – Referees’ report – Review and adoption of report – Exercise of discretion – Appeals – Principles to be applied
LEGISLATION CITED:	Australian Constitution Civil Procedure Act 2005 Judiciary Act 1903 (Cth) Trade Practices Act 1974 (Cth)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Buckley v Bennell Design Constructions Pty Ltd (1978) 140 CLR 1 Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Coulton v Holcombe (1980) 162 CLR 1 CPC Energy Pty Ltd v Bellevarde Constructions Pty Ltd [2007] NSWSC 1397 Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615 House v The King (1936) 55 CLR 499 Nicholls v Stamer [1980] VR 479 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193
PARTIES:	Bellevarde Constructions Pty Ltd (First Appellant) John Francis Fielding (Second Appellant) CPC Energy Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40871/2007
COUNSEL:	(Appellant) B W Walker SC with R D Marshall (Respondent) M J Slattery QC with R A Parsons
SOLICITORS:	(Appellant) Dibbs Abbott Stillman (Respondent) Summit Law
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	55062/2005
LOWER COURT JUDICIAL OFFICER:	Einstein J
LOWER COURT DATE OF DECISION:	25 September 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 1397