WTE Co-generation v RCR (No 3) - [2016] VSC 674

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S CI 2013 01707

WTE CO-GENERATION PTY LTD (ACN 142 284 820)	First Plaintiff
VISY ENERGY PTY LTD (ACN 115 133 321)	Second Plaintiff
v
RCR ENERGY PTY LTD (ACN 080 753 680)	First Defendant
RCR TOMLINSON PTY LTD (ACN 008 898 486)	Second Defendant
And Between
RCR ENERGY PTY LTD (ACN 080 753 680)	Plaintiff by Counterclaim
v
WTE CO-GENERATION PTY LTD (ACN 142 284 820)	First Defendant by Counterclaim
VISY PAPER PTY LTD (ACN 005 803 234)	Second Defendant by Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 OCTOBER 2016
DATE OF JUDGMENT:	10 NOVEMBER 2016
CASE MAY BE CITED AS:	WTE CO-GENERATION v RCR (No 3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 674

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PRACTICE AND PROCEDURE — Summary judgment sought by defendants under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) — Not established that the claim has no real prospect of success — Application for summary judgment dismissed.

CONTRACT — Whether terms of a construction and engineering contract, relating to performance of an engineering plant once completed, capable of giving rise to misleading or deceptive conduct if breach of s 52 of the Trade Practices Act 1974 (Cth) or s 18 of the Australian Consumer Law — Not established that the claim has no real prospect of success — Observations on the risk inherent in construction and engineering projects and the role of a contract in allocation of risk — Need to construe any actionable representations in the context of the contract read as a whole.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C M Scerri QC with Mr M Whitten SC	Arnold Bloch Leibler
For the Defendant	Mr B Walker SC with Ms K L Stynes	Corrs Chambers Westgarth

HIS HONOUR:

By summons dated 6 September 2016, the Defendants seek an order that parts of the Plaintiffs’ claim pleaded in its Further Amended Statement of Claim (the ‘FASOC’) be dismissed, and summary judgment given under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (the ‘CPA’) on the ground that the claim has no real prospect of success.

The Plaintiffs (‘WTE’ and ‘Visy Energy’) allege that the Defendants (RCR Energy and RCR Tomlinson, together called ‘RCR’) engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the ‘TPA’) or s 18 of the Australian Consumer Law[1] (the ‘ACL’). The impugned conduct (referred to as the ‘TPA/ACL Claim’) is the making of contractual promises in a contract between the First Defendant, RCR Energy, and the Second Defendant by Counterclaim (‘Visy Paper’) (‘Visy Energy’ and ‘Visy Paper’ together called ‘Visy’).
[1]Competition and Consumer Act 2010 (Cth) Sch 2.

The TPA/ACL Claim is set out in paragraphs [10]–[17A], [20] and [36]–[38] of the FASOC.

Background

The following background facts are accepted for the purposes of this application.

The proceeding relates to a…

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: [2016] VSC 674
Decision Date: 10 NOVEMBER 2016

CaseChat Overview and Summary

In the case of WTE Co-generation v RCR, the Court was asked to consider an application for summary judgment brought by the defendants, RCR, against WTE Co-generation. The defendants sought the dismissal of the claim based on the contention that WTE Co-generation's claims had no real prospect of success. The dispute arose from a construction and engineering contract concerning the performance of an engineering plant once completed. The plaintiff alleged that the defendants had engaged in misleading or deceptive conduct, contrary to section 52 of the Trade Practices Act 1974 and section 18 of the Australian Consumer Law.

The primary legal issues before the Court were whether the terms of the construction and engineering contract could give rise to misleading or deceptive conduct and whether the plaintiff's claim had any real prospect of success. The Court examined the nature of construction and engineering projects, noting the inherent risks involved and the role of contracts in allocating these risks. The Court also emphasised the importance of construing any actionable representations within the context of the contract read as a whole. In determining whether the application for summary judgment should be granted, the Court considered whether the defendants had established that the plaintiff's claims had no real prospect of success.

The Court dismissed the application for summary judgment, finding that the defendants had not demonstrated that the plaintiff's claims had no real prospect of success. The Court observed that the issues of misleading or deceptive conduct and the construction of the contract required a detailed examination of the facts and the contract terms. The Court determined that these matters could not be resolved on the basis of the current evidence and that a full trial was necessary to determine the merits of the plaintiff's claims. Consequently, the Court refused to grant the defendants' application for summary judgment, allowing the plaintiff's claims to proceed to a full hearing.

Orders