Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 6) [2016] FCA 1534

FEDERAL COURT OF AUSTRALIA

Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 6) [2016] FCA 1534 File number: SAD 84 of 2014

Judge: BESANKO J

Date of judgment: 19 December 2016

Catchwords: CONTRACTS – claim for monies owing under a contract – where applicant entered into a works contract to supply pipe and associated site installation work to the respondent – where contract provided for fixed lump sum amount in respect to the original scope of work – where contract provided a schedule of rates for site works – where contract provided for the valuation of variations to the scope of work – where contract terminated for convenience – whether clauses survive termination – whether claim fails because of failure to give prescribed notice pursuant to contract – construction of works contract – assessment of amount owing pursuant to works contract. CONTRACTS – breach of contract – where cross-claimant claims cross-respondent breached the works contract – where alleged breaches of contract include failure to deliver pipe and fittings on agreed dates, demoblisation from site and defective workmanship – where cross-claimant claims damages for increased costs of manufacturing paid to new supplier – where cross-claimant claims damages for the costs of rectifying defective pipe and additional site jointing. CONSUMER LAW – misleading and deceptive conduct – where applicant proceeded on the basis that the scope of works under the proposed contract was reflected entirely in the tender drawings issued – where respondent issued with revised and additional drawings by its principal before it enters into contract with applicant – whether failure to disclose revised and additional drawings to the applicant is misleading and deceptive conduct – where contract provided that further drawings may be issued and applicant told variations were possible. CONSUMER LAW – relief sought – where applicant seeks an order varying contract so that a "cap" in the works contract would be removed and the applicant would be entitled to be compensated instead by reference to reasonable rates and prices – whether order sought would compensate applicant for loss and damage caused – whether order sought proportionate to loss or damage suffered – where applicant claims it would have not reduced tender price if it had known of variations – where applicant claims it did not seek or undertake other work at reasonable industry rates and prices because of respondent's conduct – Australian Consumer Law, ss 237, 243. TORTS – inducing a breach of contract – where applicant claims to have entered a subcontract with a supplier – where respondent terminated contract with applicant and contracted directly with that supplier – consideration of elements of cause of action – whether there was a contract between applicant and supplier – whether respondent knew of that contract – whether respondent induced or procured a breach of that contract. PRACTICE AND PROCEDURE – application to extend time to file evidence – where applicant seeks to rely on a more detailed expert report – where first expert report defective and failed to set out reasoning – where deficiencies in report and delay in application not the result of a deliberate tactic – where application would not result in extended adjournment – application allowed. PRACTICE AND PROCEDURE – application to amend statement of claim in relation to misleading or deceptive conduct claim – where amendment would not cause embarrassment to respondent – application allowed. PRACTICE AND PROCEDURE – application to amend statement of claim in relation to the claim in tort – where application made at conclusion of trial – where amendment would prejudice respondent – where proposed amendment could have been pursued before trial – application refused. PRACTICE AND PROCEDURE – application to amend defence to withdraw admission – where admission inconsistent with evidence – application allowed. EVIDENCE – where applicant's witness produced schedules which show his estimates of employee labour hours – where schedules not admissible as a business record by reason of Evidence Act 1995 (Cth), s 69(3) – whether schedules admissible pursuant to Evidence Act 1995 (Cth), s 29(4).