Cummins Generator Technologies Germany GMBH v Johnson Controls Australia Pty Ltd

Cummins Generator Technologies Germany GMBH (Cummins) appealed a decision of the primary judge concerning alleged misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The dispute arose from a quotation provided by Cummins to Johnson Controls Australia Pty Ltd (Johnson Controls) for the supply of an alternator. Johnson Controls alleged that the quotation contained misrepresentations regarding the alternator's compatibility with its existing equipment, despite the quotation not being accepted. The appeal was heard by Beazley P, Gleeson and Leeming JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether Cummins had engaged in misleading or deceptive conduct by making misrepresentations in the quotation, and if so, whether this conduct caused Johnson Controls loss or damage. Specifically, the court had to consider how to assess misrepresentations made in a quotation that was not accepted, and whether such representations could be considered in the context of the dealings between the parties. Furthermore, the court was required to determine the principles of causation applicable to claims of misleading and deceptive conduct, and whether a strict requirement to prove a "no transaction" or "different transaction" scenario was necessary.

The Court of Appeal affirmed the primary judge's findings, reasoning that the technical information provided in the quotation, even though not forming part of an accepted contract, could constitute misleading or deceptive conduct if it misrepresented the compatibility of the alternator. The court held that the assessment of such conduct should be undertaken in the context of the overall dealings between the parties. Regarding causation, the court applied established principles, finding that legal causation was established based on the purpose of the statute and the specific circumstances of the case, without requiring proof of a "no transaction" or "different transaction" scenario. The court also addressed an evidentiary issue concerning the reliance on an expert report, noting the requirements of UCPR, r 31.28 for serving back an opposing party's expert report.

The appeal was dismissed, and Cummins was ordered to pay Johnson Controls' costs.