Ipex ITG Pty Ltd (Receivers and Managers Appointed) & Anor v The State of Victoria

[2013] HCASL 77

IPEX ITG PTY LTD (RECEIVERS AND MANAGERS APPOINTED) & ANOR

v

THE STATE OF VICTORIA

[2013] HCASL 77
M98/2012

1. In June 2002 the first applicant ("Ipex") tendered for a contract for the provision of system integration services to the Parliament of Victoria in response to a request for tender issued in May of that year ("the RFT").  Its tender was unsuccessful.  Ipex sued the respondent, as the representative of the Parliament of Victoria, claiming, inter alia, damages for breach of contract.

2. At trial, the Supreme Court of Victoria held that there was a binding contract between Ipex and the respondent, the express terms of which were contained in the RFT.  Ipex argued that this contract contained an implied term of good faith; while the respondent denied that this was so, it conceded that it was obliged, in assessing responses to the RFT, to act fairly, reasonably and in good faith.  The Court of Appeal upheld the finding of the trial judge that the respondent had acted in accordance with this obligation.

3. The applicants seeks special leave to appeal, primarily on the basis that the Court of Appeal should have found that there is an implied duty of good faith in commercial contracts, or, alternatively, in tender process agreements with government entities.  This is not an appropriate vehicle for the consideration of whether such a duty should be implied.  There is no issue between the parties that an obligation of good faith was a feature of their relationship, and the source of that obligation was not debated before Court of Appeal.  To the extent the application seeks to re-agitate questions of breach, no question of principle is raised.

4. The respondent in written submissions has sought that the costs of the application for special leave to appeal be reserved on the basis that it may in due course seek an order that the costs be paid by a third party.  In the absence of a present application for such an order, we are not prepared to reserve costs.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
8 May 2013 S.J. Gageler