Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd

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.