The Administration of Norfolk Island v SMEC Australia Pty Ltd [2006] NFSC 7

SUPREME COURT OF NORFOLK ISLAND

The Administration of Norfolk Island v SMEC Australia Pty Ltd [2006] NFSC 7 CONTRACT – Contract between Administration and civil engineering consultants for management of a project involving cliff stabilisation and recovery, for use as aggregate, of hard durable rock ('HDR') – Project carried out by contractor (Kaipara) pursuant to contract requiring HDR to be stockpiled separately from other material ('OTR') – Whether Kaipara carried out work in such a manner as to produce an unacceptable degree of intermingling of HDR and OTR – Manner of excavation of unit I of cliff – Nature of material in HDR stockpile – Nature of defendant's responsibility – Effect of clause in contract between plaintiff and defendant capping defendant's liability at $300,000.

FAIR TRADING – Whether defendant engaged in misleading or deceptive conduct – Recoverability of damages in relation to moneys paid after intermingling occurred.

FIDUCIARY DUTY – Whether there was a fiduciary relationship between the parties.

Fair Trading Act 1995 (NI): ss 14, 16, 37, 41

THE ADMINISTRATION OF NORFOLK ISLAND v SMEC AUSTRALIA PTY LIMITED SC2 of 2003 WILCOX J 3 AUGUST 2006 SYDNEY IN THE SUPREME COURT OF

NORFOLK ISLAND SC2 of 2003

BETWEEN: THE ADMINISTRATION OF NORFOLK ISLAND

PLAINTIFF

AND: SMEC AUSTRALIA PTY LIMITED

DEFENDANT

JUDGE: WILCOX J

DATE OF ORDER: 3 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Judgment be entered in favour of the plaintiff, The Administration of Norfolk Island, against the defendant, SMEC Australia Pty Limited, in the sum of three hundred thousand dollars ($300,000). 2. The defendant pay the plaintiff's costs of the proceeding. IN THE SUPREME COURT OF

NORFOLK ISLAND SC2 of 2003