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Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd

Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd

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Case Copied 3 July 2002 71 min read

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CITATION: Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 211

FILE NUMBER(S): CA 40949/01

HEARING DATE(S): 6 and 7 June 2002

JUDGMENT DATE:
3 July 2002

PARTIES :

Peninsula Balmain Pty. Limited - appellant
Abigroup Contractors Pty. Limited - respondent

JUDGMENT OF: Mason P at 1; Stein JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : SC55034/99

LOWER COURT
JUDICIAL OFFICER : Barrett J

COUNSEL: Mr. F.M. Douglas QC with Mr. M.G. Rudge SC and Mr. M. Christie for appellant
Mr. B.W. Walker with Mr. I. Faulkner for respondent

SOLICITORS: Deacons Lawyers, Sydney for appellant
Clayton Utz Lawyers, Sydney for respondent

CATCHWORDS: CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Australian Standard General Conditions of Contract AS2124-1992 - Position of superintendent - Whether agent of principal - Whether power to extend time continues after termination of contract - Whether builder's entitlement to payment for variation depended on compliance with clause 40.2 - TRADE PRACTICES - Misleading conduct - Must be apt to mislead in some non-trivial respect - Non-disclosure by principal of agreement with superintendent - Agreement, on true construction, has no relevant impact on exercise of superintendent's functions - Circumstance that commercial people may think otherwise does not make non-disclosure misleading - Whether misleading conduct either by "doing" or "refraining" - Significance of non-disclosure being "inadvertent".

LEGISLATION CITED: Trade Practices Act 1974 (Cth) ss.4, 52

CASES CITED:
Akron Securities v. Iliffe (1997) 41 NSWLR 353
Ambulance Service of NSW v. Daniel [2000] NSWCA 116
Amco Wrangler Ltd. v. Sukkar (1985) 1 NSWLR 577
Australian Development Corp. Pty. Ltd. v. White Constructions (ACT) Pty. Ltd. (1996) 12 BCL 317.
China Ocean Shipping Co. Ltd. v. P.S. Chellaram Co. Ltd. (1990) 28 NSWLR 354
Dixon v. South Australian Railways Commission (1923) 34 CLR 71
Donovan v. City of Sale [1979] VR 461
Henville v. Walker (2001) 75 ALJR 1410
Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 CLR 41
Jennings Construction Ltd. v. Q.H. & M. Birt (1986) 8 NSWLR 18
Koon Wing Lau v. Calwell (1948) 80 CLR 533
Leda Holdings Pty. Ltd. v. Oraka Pty. Ltd. (1998) ATPR 41,601
London Borough of Mertin v. Stanley Hugh Leach Ltd. (1985) 32 BLR 68
Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638
Marks v. GIO Australia Holdings Ltd. (1998) 196 CLR 494
McWilliams Wines Pty. Ltd. v. L.S. Booth Wine Transport Pty. Ltd. (1992) NSWLR 723
Opat Decorating Service Pty. Ltd. v. Hansen Yuncken (SA) Pty. Ltd. (1994) 11 BCL 360
Perini Corporation v. Commonwealth of Australia [1969] 2 NSWR 530
Renaud Constructions (ME) Pty. Ltd. v. Minister for Public Works (1992) 26 NSWLR 234
Semrani v. Manoun [2001] NSWCA 337
South Australian Railways Commissioner v. Egan (1973) 130 CLR 506
Sutcliffe v. Thackrah [1947] AC 727
Turner Corporation (Receiver & Manager Aptd) v. Austotel Pty. Ltd. (1994) 13 BCL 378
Walter Construction Group Ltd. v. Walker Construction Ltd. (2001) 47…

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: [2002] NSWCA 211
Decision Date: 3 July 2002

CaseChat Overview and Summary

The case of *Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd* was heard in the Court of Appeal of New South Wales, with Mason P, Stein and Hodgson JJA presiding. The dispute concerned a building contract governed by the Australian Standard General Conditions of Contract AS2124-1992. The central issues revolved around the role and powers of the superintendent under the contract, particularly whether the superintendent acted as an agent of the principal and whether their power to grant extensions of time persisted after the contract's termination. Additionally, the court considered whether the builder's entitlement to payment for variations was contingent on strict compliance with clause 40.2, and whether the principal engaged in misleading or deceptive conduct under the Trade Practices Act by failing to disclose an agreement with the superintendent.

The Court of Appeal was required to determine whether the superintendent's position under the AS2124-1992 contract made them an agent of the principal, Peninsula Balmain Pty Ltd. It also had to consider if the superintendent's authority to grant extensions of time continued after the contract was terminated. Further, the court examined whether Abigroup Contractors Pty Ltd's entitlement to payment for variations was dependent on its adherence to the requirements of clause 40.2 of the contract. Finally, the court assessed whether Peninsula Balmain's non-disclosure of an agreement with the superintendent constituted misleading conduct under the Trade Practices Act, even if the non-disclosure was inadvertent and the agreement had no practical impact on the superintendent's functions.

The Court of Appeal allowed the appeal, setting aside the orders of the court below. The judges reasoned that the agreement between Peninsula Balmain and the superintendent, on its true construction, did not impact the superintendent's functions in a way that rendered its non-disclosure misleading. The court found that while commercial parties might perceive such an agreement differently, this perception did not, in itself, make the non-disclosure misleading under the Trade Practices Act. The court adopted the referee's reports with specific modifications, including the disallowance of a particular variation and the recalculation of delay costs. The finding of misleading conduct and breach of clause 23 by Peninsula Balmain was set aside. The matter was remitted to the referee for further determination on specific cost issues before judgment was entered.

Orders

Orders of the court

1.Appeal allowed. 2.Orders below set aside. 3. Report of Mr. McDougall dated 19 February 2001, together with the supplementary report dated 27 February 2001, be adopted, subject to the following matters: (a) Disallowance of variation VPR32. (b) Abigroup's delay costs to be calculated at $7,890.00 per day. (c) The referee's disallowance of $998,271.00 being Peninsula's costs incurred between 16 January 2000 and 31 March 2000 set aside. (d) Finding of misleading conduct and breach of cl.23 by Peninsula set aside. 4.Matter remitted to referee to determine question of Peninsula's costs incurred between 16 January 2000 and 31 March 2000 in accordance with these reasons, and following that determination, remitted to the Equity Division for entry of judgment (including judgment for costs of the proceedings and before the referee) in accordance with these orders and the referee's determination of that question. 5. Respondent to pay appellant's costs of the appeal, and to have a suitors' fund certificate if otherwise entitled. 6. Leave to Abigroup to apply, by furnishing written submissions within 14 days, for re-consideration of Order 3(b) and/or Order 5, in which case Peninsula is to respond by written submissions within a further 7 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 211
FILE NUMBER(S):	CA 40949/01
HEARING DATE(S):	6 and 7 June 2002
JUDGMENT DATE:	3 July 2002
PARTIES :	Peninsula Balmain Pty. Limited - appellant Abigroup Contractors Pty. Limited - respondent
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	SC55034/99
LOWER COURT JUDICIAL OFFICER :	Barrett J

COUNSEL:	Mr. F.M. Douglas QC with Mr. M.G. Rudge SC and Mr. M. Christie for appellant Mr. B.W. Walker with Mr. I. Faulkner for respondent
SOLICITORS:	Deacons Lawyers, Sydney for appellant Clayton Utz Lawyers, Sydney for respondent
CATCHWORDS:	CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Australian Standard General Conditions of Contract AS2124-1992 - Position of superintendent - Whether agent of principal - Whether power to extend time continues after termination of contract - Whether builder's entitlement to payment for variation depended on compliance with clause 40.2 - TRADE PRACTICES - Misleading conduct - Must be apt to mislead in some non-trivial respect - Non-disclosure by principal of agreement with superintendent - Agreement, on true construction, has no relevant impact on exercise of superintendent's functions - Circumstance that commercial people may think otherwise does not make non-disclosure misleading - Whether misleading conduct either by "doing" or "refraining" - Significance of non-disclosure being "inadvertent".
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) ss.4, 52
CASES CITED:	Akron Securities v. Iliffe (1997) 41 NSWLR 353 Ambulance Service of NSW v. Daniel [2000] NSWCA 116 Amco Wrangler Ltd. v. Sukkar (1985) 1 NSWLR 577 Australian Development Corp. Pty. Ltd. v. White Constructions (ACT) Pty. Ltd. (1996) 12 BCL 317. China Ocean Shipping Co. Ltd. v. P.S. Chellaram Co. Ltd. (1990) 28 NSWLR 354 Dixon v. South Australian Railways Commission (1923) 34 CLR 71 Donovan v. City of Sale [1979] VR 461 Henville v. Walker (2001) 75 ALJR 1410 Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 CLR 41 Jennings Construction Ltd. v. Q.H. & M. Birt (1986) 8 NSWLR 18 Koon Wing Lau v. Calwell (1948) 80 CLR 533 Leda Holdings Pty. Ltd. v. Oraka Pty. Ltd. (1998) ATPR 41,601 London Borough of Mertin v. Stanley Hugh Leach Ltd. (1985) 32 BLR 68 Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 Marks v. GIO Australia Holdings Ltd. (1998) 196 CLR 494 McWilliams Wines Pty. Ltd. v. L.S. Booth Wine Transport Pty. Ltd. (1992) NSWLR 723 Opat Decorating Service Pty. Ltd. v. Hansen Yuncken (SA) Pty. Ltd. (1994) 11 BCL 360 Perini Corporation v. Commonwealth of Australia [1969] 2 NSWR 530 Renaud Constructions (ME) Pty. Ltd. v. Minister for Public Works (1992) 26 NSWLR 234 Semrani v. Manoun [2001] NSWCA 337 South Australian Railways Commissioner v. Egan (1973) 130 CLR 506 Sutcliffe v. Thackrah [1947] AC 727 Turner Corporation (Receiver & Manager Aptd) v. Austotel Pty. Ltd. (1994) 13 BCL 378 Walter Construction Group Ltd. v. Walker Construction Ltd. (2001) 47…