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Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd

Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd

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Case Copied 17 May 2018 68 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL DIVISION

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S CI 2014 04435

BRIGHTON AUSTRALIA PTY LTD (ABN 23 108 995 553)	Plaintiff
v
MULTIPLEX CONSTRUCTIONS PTY LTD (ABN 70 107 007 527)	Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 March and 26 April 2018
DATE OF JUDGMENT:	17 May 2018
CASE MAY BE CITED AS:	Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 246	2^nd Revision: 24 May 2018

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BUILDING AND CONSTRUCTION – Claim based on alleged misleading conduct – Whether implied representation arose from tender documentation incorporating a construction program.
PRACTICE AND PROCEDURE – Purpose of pleadings – Whether a claim based on a continuing representation was pleaded – Whether the case conducted on the basis of a continuing representation – Failure to plead non-disclosure – Whether claim was a drastic departure from the pleading.
PRACTICE AND PROCEDURE – Principles to be applied on application to adopt the report of a special referee under r 50.04 – Whether a finding with respect to the making of a representation is a question of law.
CONSUMER LAW – Misleading conduct – Meaning of a ‘continuing representation’ considered – Consideration of test to be applied in determining whether a representation was made.

PUBLIC POLICY – Juridical basis for the unenforceability of contractual bars to claims under Australian Consumer Law considered – Whether a clause regulating the time a claim could be brought under s 236 of the Australian Consumer Law is unenforceable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F Corsaro SC with Mr D McAndrew	Thomson Geer
For the Defendant	Mr M Roberts QC with Mr T J Breakspear	Norton Rose Fulbright

The following cases are referred to in the judgment:

ACCC v Telstra Corporation Ltd (2007) 244 ALR 470

Admiralty Commissioners v SS Valverda [1938] AC 173

Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Bateman v Slatyer (1987) 71 ALR 553

Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 174

Bennett v Elysium Noosa Pty Ltd (in liq) (2012) 291 ALR 191

Borg v Northern Rivers Finance Pty Ltd [2003] QSC 112

Butcher v Lachlan Realty Pty Ltd (2004) 218 CLR 592

Byers v Dorotea Pty Ltd (1986) ATPR 40–760

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304

Campomar v Nike International (2000) 202 CLR 45

Chocolate Factory Apartments v Westpoint Finance [2005] NSWSC 784

Clarke Equipment v Covcat (1987) 71 ALR 367

Collins Marrickville v Henjo Investments Pty Ltd (1987) 72 ALR 601

Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Cramaso LLP v Ogilvie-Grant [2014] AC 1093

Crown Melbourne v Cosmopolitan Hotel (2016) 260 CLR 1

Davies v Davies (1919) 26 CLR 348

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31

Dibble v Aidan Nominees Pty Ltd (1986) ATPR 40

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: [2018] VSC 246
Decision Date: 17 May 2018

CaseChat Overview and Summary

Brighton Australia Pty Ltd, as plaintiff, brought an action against Multiplex Constructions Pty Ltd, as defendant, in the Federal Court of Australia. The plaintiff alleged that the defendant engaged in misleading conduct in the course of trade or commerce by providing a misleading construction program in its tender documentation. This action was pursued under the Australian Consumer Law, specifically s 232 of the Competition and Consumer Act 2010 (Cth). The defendant denied the allegations and raised several defences, including that the plaintiff had failed to plead its case properly and that the claim was a drastic departure from the pleadings. The defendant also argued that the time bar clause in the contract between the parties was enforceable and prevented the plaintiff’s claim.

The court had to determine several legal issues. Firstly, whether the tender documentation incorporating a construction program gave rise to an implied representation. Secondly, whether the plaintiff had properly pleaded its case in relation to a continuing representation and whether the case was conducted on this basis. Thirdly, whether the failure to plead non-disclosure constituted a drastic departure from the pleadings. Fourthly, whether a finding on the making of a representation was a question of law, relevant to the adoption of the report of a special referee. Lastly, whether a contractual bar to claims under the Australian Consumer Law was enforceable under public policy.

The court held that the tender documentation did not give rise to an implied representation. It also found that the plaintiff had not properly pleaded its case in relation to a continuing representation. The court considered that the case was not conducted on the basis of a continuing representation and found that the failure to plead non-disclosure did not constitute a drastic departure from the pleadings. The court held that a finding on the making of a representation was not a question of law but rather a question of fact, and thus not suitable for the adoption of the report of a special referee. Finally, the court found that a contractual bar to claims under the Australian Consumer Law was unenforceable as a matter of public policy.

The court dismissed the plaintiff’s claim and ordered the plaintiff to pay the defendant’s costs of the proceedings.

Orders