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

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.