Scald v Bowyer - [2017] ACTSC 309

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Scald v Bowyer
Citation:	[2017] ACTSC 309
Hearing Dates:	15-17 May 2017
DecisionDate:	25 October 2017
Before:	Burns J
Decision:	See [202]
Catchwords:	BUILDING AND CONSTRUCTION – joint venture for the construction of a residential apartment complex – defendant allegedly made representation that was misleading and deceptive – Fair Trading Act 1992 (ACT) – trade or commerce – whether there was a misrepresentation – adequacy of evidence concerning alleged errors in scope and effects on cost of construction –– reasonable grounds for making the representation – experience in the construction industry – legal onus – whether causal link to loss was shown NEGLIGENCE–– whether representation was made negligently – alleged lost opportunity – duty to take reasonable care – whether duty was breached LIMITATION OF ACTIONS – commencement of limitation period – prima statute barred – Limitation Act 1985 (ACT) s 33(1) – where alleged deliberate concealment to fact relevant to cause of action – the fact concealed must be a fact which should be pleaded in a Statement of Claim – plaintiff alleged the fact was flawed – whether Limitation Act 1985 (ACT) s 33(3) applied – inconsistency in argument regarding representation
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) Administrative Appeals Tribunal Act 1989 (ACT) Corporations Act 2001 (Cth) ss 189, 190(2) Fair Trading Act 1992 (ACT) ss 5, 12, 46(1) Limitation Act 1980 (UK) c 58, s 32 Limitation Act 1985 (ACT) ss 11, 33 Trade Practices Act 1974 (Cth) s 52(1)
Cases Cited:	AIC Limited v ITS Testing Services (UK) Ltd (The ‘Kriti Palm’) [2006] EWCA Civ 1601; [2007] 2 C.L.C. 223 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Innes v Commonwealth [2015] ACTCA 33 Paramasivam v Flynn [1998] FCA 1711; 90 FCR 489 Taco Co of Australia v Taco Bell Pty Ltd (1982) 42 ALR 177 Wagdy Hanna and Associates Pty Ltd v National Library of Australia [2012] ACTSC 126; 7 ACTLR 70 Whittle v Filaria Pty Ltd & Ors [2004] ACTSC 45
Parties:	Scald Pty Ltd (Plaintiff) Peter Bowyer (Defendant)
Representation:	Counsel Mr D Ash (Plaintiff) Mr C Cassimatis (Defendant)
Solicitors Joe Weller & Associates (Plaintiff) Meyer Vandenberg Lawyers (Defendant)
File Number:	SC 412 of 2012

BURNS J:

Background

These proceedings arise out of a joint venture for the construction of a residential apartment complex on land situated at Turner in the Australian Capital Territory (ACT). The development was to proceed in two stages, and the events with which these proceedings are concerned occurred as part of Stage 1 of the development. Stage 1 was commenced in the latter half of 2002 and was completed in 2005.

The joint venture was established by a Deed of Agreement in December 2000. It was agreed that land would be acquired on trust for members of the venture by Turner Developments Pty Ltd. Each initial…

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.

Continue reading Scald v Bowyer

Details

AGLC: Scald v Bowyer [2017] ACTSC 309
Case: [2017] ACTSC 309
Decision Date: 25 October 2017

CaseChat Overview and Summary

Scald, a developer, pursued legal action against Bowyer, a contractor, alleging that Bowyer made misleading and deceptive representations regarding the scope and cost of constructing a residential apartment complex. The case was heard in the Supreme Court of the Australian Capital Territory. Scald claimed that Bowyer's representations, made during the negotiation phase, were misleading and deceptive under the Fair Trading Act 1992 (ACT), and that Bowyer negligently breached a duty of care. Scald further alleged that Bowyer concealed facts relevant to the cause of action, thereby extending the limitation period.

The court had to determine whether Bowyer's representation was indeed misleading and deceptive, whether Scald had provided sufficient evidence of the alleged errors in scope and their impact on construction costs, and whether there were reasonable grounds for Bowyer to make the representation. The court also examined whether Bowyer's actions constituted negligent misrepresentation and if there was a causal link between the alleged misrepresentation and Scald's lost opportunity. Additionally, the court assessed whether the limitation period had been extended due to Bowyer's alleged concealment of relevant facts.

The court found that Scald failed to adequately demonstrate the alleged errors in scope and their impact on construction costs. The court also held that Bowyer had reasonable grounds for making the representation, considering his experience in the construction industry. Furthermore, Scald did not establish a causal link between the alleged misrepresentation and the lost opportunity. Regarding the limitation period, the court ruled that Scald's claim was barred by the Limitation Act 1985 (ACT) s 33(1), as Scald's arguments regarding the representation were inconsistent, and the alleged concealed fact was not a fact that should have been pleaded in the Statement of Claim.

The court dismissed Scald's claim and ordered Scald to pay Bowyer's costs.

Orders

Orders of the court

See [202]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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