| 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 |
---
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 | 2nd Revision: 24 May 2018 |
---
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.
---
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
Keep reading for free
Create a free CaseChat account to read Brighton Australia Pty Ltd v Multiplex Constructions 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] VSC 246
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
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.