Ipex ITG Pty Ltd (Receivers and Managers Appointed) & Ors v Melbourne Water Corporation

[2013] HCASL 76

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

v

MELBOURNE WATER CORPORATION

[2013] HCASL 76
M91/2012

1. The first applicant ("Ipex") tendered successfully for a contract to provide IT services, including help desk services, to the respondent.  Ipex subsequently claimed that during the pre-contract period the respondent had disclosed information about historical help desk call volumes that either alone or in combination with the respondent's failure to disclose other historical data was misleading or deceptive.

2. Ipex failed both at trial before the Supreme Court of Victoria and on appeal to the Court of Appeal to establish that the respondent had engaged in misleading or deceptive conduct.  The trial judge and the Court of Appeal also found that Ipex had not established that it had suffered any loss as a result of the alleged conduct.  The trial judge made orders as to costs against Ipex, its parent company (the second applicant) and a director of that company (the third applicant).  The Court of Appeal upheld those costs orders.

3. The applicants apply for special leave to appeal from the orders of the Court of Appeal.  They seek to argue that the Court of Appeal applied the wrong test in determining whether the impugned non-disclosure was misleading or deceptive.  They also seek to challenge the Court of Appeal's finding that there was no error in the exercise of the trial judge's discretion as to costs.  Nothing in the applicants' summary of argument demonstrates any error of principle in the approach taken by the Court of Appeal to either issue.  An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.

4. 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