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Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group

Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group

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Case Copied 18 October 2019 80 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group [2019] NSWSC 1554
Hearing dates: 9, 10, 11, 12, 13 September 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Equity - Technology and Construction List
Before: Rein J
Decision:
See [88].

Catchwords:
BUILDING AND CONSTRUCTION – Contract – Builder reported asbestos contaminated material found on site; variations for removal of the contaminated fill, as well as other variations; owner claims that the person acting as superintendent on the job was not the person contractually agreed to be the superintendent and denies the efficacy of certification and approvals given by that person – Whether owner in breach of contract for failing to ensure the named superintendent acted in that role – Whether variations had to be in writing – Effect of instructions from the owner’s representative to the builder in the presence of the superintendent.

BUILDING AND CONSTRUCTION – Quantum meruit – Where owner instructed builder to remove contaminated fill from the site and builder did so.

ESTOPPEL – Estoppel by convention – Mutual assumption – Whether owner estopped from denying that the person acting as superintendent was the superintendent for the purposes of the contract.
CONTRACT – Misleading conduct under statute — Misleading or deceptive conduct – claim under s 18 of the Australian Consumer Law – Where owner claims that the builder engaged in misleading or deceptive conduct in relation to the need to excavate and remove contaminated fill from site; the builder was instructed to remove the fill and to do so in accordance with the advice of an authorised subcontractor approved by the owner.
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Competition and Consumer Act 2010 (Cth)
Managing Land Contamination: Planning Guidelines SEPP 55 - Remediation of Land (NSW)
National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth)
State Environmental Planning Policy No 55 – Remediation of Land (NSW)
Cases Cited: ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640
Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16; (2012) 201 FCR 173
Alghussein Establishment v Eton College [1988] 1 WLR 587
Amalgamated Investment & Property Co Ltd (in Liq) v Texas Commerce International Bank [1982] QB 84
Bragg v Alam [1981] 1 NSWLR 668
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Commonwealth v Verwayen (1990) 170 CLR 394
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Express Newspapers plc v News (UK) Ltd [1990] 3 All ER 376; (1990) 18 IPR 201
Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545
Haros v Linfox [2012] FCAFC 42; (2012) 219 IR 177
Hotham v East India Co (1787) 1 TR 638…

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: [2019] NSWSC 1554
Decision Date: 18 October 2019

CaseChat Overview and Summary

Futurepower Developments Pty Ltd sought a declaration and damages from TJ & RF Fordham Pty Ltd t/as TRN Group, alleging breaches of contract, misleading conduct under statute, and estoppel. The dispute arose from the construction of a multi-level car park at a site in Sydney, where the builder encountered asbestos-contaminated material. The owner claimed that the superintendent acting on the job was not the one agreed upon in the contract and that the builder was not authorised to make variations. The builder argued that the owner's representative had given instructions in the presence of the superintendent, effectively approving the work done.

The court was required to determine whether the owner breached the contract by not ensuring that the named superintendent acted in that role and whether variations had to be in writing. Additionally, the court needed to ascertain if the owner was estopped from denying that the person acting as superintendent was the superintendent for the purposes of the contract. The court also had to decide if the builder engaged in misleading or deceptive conduct under the Australian Consumer Law by suggesting the need to excavate and remove contaminated fill from the site.

The court found that the owner was not in breach of contract for failing to ensure the named superintendent acted in that role. The court held that the owner was not estopped from denying that the person acting as superintendent was the superintendent for the purposes of the contract. The court further determined that the builder did not engage in misleading or deceptive conduct under the Australian Consumer Law. The court held that the instructions given by the owner's representative in the presence of the superintendent were effective approvals for the work done, and therefore, the builder was not in breach of contract for not obtaining written approval for the variations. The court also held that the owner was not entitled to a declaration or damages for misleading conduct under statute.

The court made no orders for costs.

Orders