Professional Construction Control (Australia) Pty Ltd v Atkins Campbell & Associates Pty Ltd - [1984] FCA 25

IN THE FEDERAL COURT OF AUSTRALIA

)

)=SOUTH WALES	DISTRICT	REGISTRY	)	No. G.13 of 1983
)

GENERAL DIVISION

)

BETWEEN :

FROFESSIONAL

CONSTRUCT101

CONTROL (AUSTRALIA) PTY.

LIMITED

Applicant

AND :

ATKINS CAMPBELL &

ASSQCIATES PTY. LIMITED

First Respondent

ALAN ATKINS

Second Respondent

COLIN CFNPSELL

Thlrd Respondent

ORDERS

CORAM :

ST.

JOHN, J.

TUESDAY,

28th

FEBRUARY,

1984

PLACE :

SYDNEY

The

appllcatlon

1 s dismlssed.

The

applicant

is ordered

pap

the

cespondents’

costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH MALES DISTRICT REGISTRY

)	No. G.13 of 1933

)

GENERAL

DIVISION

BETWEEN

FROFESSIONAL CONSTRUCTIOFi

CONTROL (AUSTRALIA) PTY.

LIMITED

Applicant

MJD :

ATKINS CAMPBELL &

ASSOCIATES PTY. LIMITED

Flrst Respondent

a L m ATKINS

Second Respondent

C O L I N

CAMPBELL

Thlrd Respondent

REASONS FOR JUDGMENT

CORAM :

ST.

JOHN, J.

TUESDAY,

28th

FEBRUARY.

1984.

PLACE

: SYDNEY

The applicant

company

seeks

damaues

from

the

respondents pursuant to Sectlon

82 of the Tr3de Practlces

.%*cc,

1974 ("the Act") for alleged breaches of Sectlons

5 2 , 53 and

55 of Part V of the Act and also for fraud and necrllgent

misstatement, all

whlch causes of

action are based upon

certain statements, oral and In wrlting, alleged to have been

made by or on

behalf of the respondents about the performance

and

capacity

a mobile

concrete

block-making

machlne

imported into this country from Italy by the respondents and

mounted on a traller.

The applicant company, of which Mlchael Wallace was

director was based in Lismore, to where Michael Wallace

retired from hls former occupatlon of quantlty surveyor. In

December,

1981 Michael Wallace became aware of

a bulldlng

system known as Boralok,

whlch system consisted of buildlnq by

means

placing

together

interlocking

concrete

buildlng

blocks which dld not need mortar in order to effect

a ~oint

between the blocks, and which blocks were marketed

the

flrst

respondent.

Michael

Wallace

approached

the

first

respondent by speaking

to one of its dlrectors. namely the

second respondent, and expressed the lnterest of the appllcant company in becornins an agent for marketing houses construcced in the Boralok system in and around Llsmore. In February the

following year, Mlchael Wallace attended the offices

of the

first respondent where he learned that the latter was In the

process of importing from Italy

a machlne for makina concrete

blocks which would later be mounted on a traller and made

moblle. Negotlatlons then commenced wlth

a vlew to reachlng

agreement as to the use

of the machine bp the appllcant

3 .

company in the

Lismore area and

the applicant company alleges

that, durinq

the course of these negotiations, mlsleadlng

statements within the meanlng of	Section 52 of the	Act were
made.

From the

amended statement of

clalm, the statements

relied upon by

the applicant company to substantlate all its

causes of actlon

were as follows:-

(a) Was

fully

moblle.

(b)	Could be operated efficlently by three men.
( C )	Would be fully…

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

AGLC: Professional Construction Control (Australia) Pty Ltd v Atkins Campbell & Associates Pty Ltd [1984] FCA 25
Case: [1984] FCA 25
Decision Date: 28 Feb 1984

CaseChat Overview and Summary

Professional Construction Control (Australia) Pty Ltd brought an action against Atkins Campbell & Associates Pty Ltd, Alan Atkins, and Colin Campbell, seeking damages for alleged breaches of Sections 52, 53, and 55 of Part V of the Trade Practices Act 1974, as well as for fraud and negligent misstatement. The claims were based on statements made by or on behalf of the respondents regarding the performance and capacity of a mobile concrete block-making machine imported from Italy and mounted on a trailer. The applicant company alleged that it had been misled by the respondents about the machine's capabilities, which led to significant losses.

The primary legal issues before the court were whether the statements made by the respondents constituted misleading or deceptive conduct under the Trade Practices Act and if there was sufficient evidence to support claims of fraud and negligent misstatement. The court had to examine each alleged statement and determine if it was made, whether it was misleading, and if it caused any damage to the applicant company.

The court found that several of the alleged misleading statements were not substantiated by the evidence. For instance, while the trailer carrying the machine exhibited fishtailing when loaded with material other than the machine itself, there was no evidence that the machine alone would cause such issues. Regarding the operation of the machine by three men, the court accepted that three men were involved, but this did not necessarily mean the machine could not be operated by fewer. The court also noted that the machine was tested and operational before delivery and was capable of producing blocks of suitable quality for general construction and the Boralok Building System. However, there was insufficient evidence to support claims of fraud or negligent misstatement. The court further held that the applicant company had not suffered any damages due to the alleged misrepresentations because the terms and conditions for using the machine were never finalized, and the machine was never used for its intended purpose.

Ultimately, the court dismissed the application and ordered the applicant to pay the respondents' costs.

Orders