EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES [1991] NSWCA 86

EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 25 and 26 February 1991, 18 October 1991 [1991] NSWCA 86

CONTRACT — collateral contract negligent misrepresentation contract avers reliance on own enquiries — contract upheld. CONTRACT — contract for removal of rock from sewer outfall — contract reduced to writing — written specifications contain agreement that contractor has examined drawings etc, information relevant to risks and site and surroundings — warranty that failure to do 80 will not relieve contractor of liability to perform contract in accordance with terms — quantity of rock discovered to be in excess of estimate — contractor argues entitled to recover additional sums on grounds of (a) collateral contract; (b) warranties made to induce it to enter into the contract; and (c) failure to exercise reasonable care in supplying information — held: (Dismissing appeal from Giles J) (1) The information conveyed in the contract was not warranted as true and correct; (2) There was no collateral contract; (3) The claim in negligence in supplying incorrect information was not established. Cutts v Buckley (1933) 49 CLR 189 considered.

Kirby P I agree with Samuels JA.

Samuels JA On 16 October 1986 the Minister for Public Works accepted the appellant's tender made on 9 September 1986 for the removal of rock from the seaward end of the Norah Head Outfall Tunnel of the Wyong Shire Sewerage Scheme. The respondent is the nominal defendant appointed pursuant to the provisions of the Claims Against the Government and Crown Suits Act 1912. No formal document of contract was executed, but there is no dispute but that there was a contract between the parties which consisted of the tender and its accompanying schedules, some further correspondence which passed prior to acceptance and need not be noted further, the letter of acceptance, the general and special conditions and the specification and drawings. In addition I note that the respondent contended, and the learned trial judge held, that the contract had been varied by a letter of 10 March 1987 sent by the Public Works Department ("the Department') to the appellant.