Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 211

New South Wales Court of Appeal

CITATION : Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 211 FILE NUMBER(S) : CA 40949/01 HEARING DATE(S) : 6 and 7 June 2002 JUDGMENT DATE : 3 July 2002

PARTIES : Peninsula Balmain Pty. Limited - appellant Abigroup Contractors Pty. Limited - respondent JUDGMENT OF : Mason P at 1; Stein JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT SC55034/99 FILE NUMBER(S) : LOWER COURT Barrett J JUDICIAL OFFICER :

COUNSEL : Mr. F.M. Douglas QC with Mr. M.G. Rudge SC and Mr. M. Christie for appellant Mr. B.W. Walker with Mr. I. Faulkner for respondent SOLICITORS : Deacons Lawyers, Sydney for appellant Clayton Utz Lawyers, Sydney for respondent CATCHWORDS : CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Australian Standard General Conditions of Contract AS2124-1992 - Position of superintendent - Whether agent of principal - Whether power to extend time continues after termination of contract - Whether builder's entitlement to payment for variation depended on compliance with clause 40.2 - TRADE PRACTICES - Misleading conduct - Must be apt to mislead in some non-trivial respect - Non-disclosure by principal of agreement with superintendent - Agreement, on true construction, has no relevant impact on exercise of superintendent's functions - Circumstance that commercial people may think otherwise does not make non-disclosure misleading - Whether misleading conduct either by "doing" or "refraining" - Significance of non-disclosure being "inadvertent". LEGISLATION CITED : Trade Practices Act 1974 (Cth) ss.4, 52 Akron Securities v. Iliffe (1997) 41 NSWLR 353 Ambulance Service of NSW v. Daniel [2000] NSWCA 116 Amco Wrangler Ltd. v. Sukkar (1985) 1 NSWLR 577 Australian Development Corp. Pty. Ltd. v. White Constructions (ACT) Pty. Ltd. (1996) 12 BCL 317. China Ocean Shipping Co. Ltd. v. P.S. Chellaram Co. Ltd. (1990) 28 NSWLR 354 Dixon v. South Australian Railways Commission (1923) 34 CLR 71 Donovan v. City of Sale [1979] VR 461 Henville v. Walker (2001) 75 ALJR 1410 Hospital Products Ltd. v. United States Surgical Corporation (1984) 156 CLR 41 Jennings Construction Ltd. v. Q.H. & M. Birt (1986) 8 NSWLR 18 Koon Wing Lau v. Calwell (1948) 80 CLR 533 Leda Holdings Pty. Ltd. v. Oraka Pty. Ltd. (1998) ATPR 41,601 CASES CITED: London Borough of Mertin v. Stanley Hugh Leach Ltd. (1985) 32 BLR 68 Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 Marks v. GIO Australia Holdings Ltd. (1998) 196 CLR 494 McWilliams Wines Pty. Ltd. v. L.S. Booth Wine Transport Pty. Ltd. (1992) NSWLR 723 Opat Decorating Service Pty. Ltd. v. Hansen Yuncken (SA) Pty. Ltd. (1994) 11 BCL 360 Perini Corporation v. Commonwealth of Australia [1969] 2 NSWR 530 Renaud Constructions (ME) Pty. Ltd. v. Minister for Public Works (1992) 26 NSWLR 234 Semrani v. Manoun [2001] NSWCA 337 South Australian Railways Commissioner v. Egan (1973) 130 CLR 506 Sutcliffe v. Thackrah [1947] AC 727 Turner Corporation (Receiver & Manager Aptd) v. Austotel Pty. Ltd. (1994) 13 BCL 378 Walter Construction Group Ltd. v. Walker Construction Ltd. (2001) 47 ATR 48 Womald Engineering Pty. Ltd. v. Resources Conservations Co. International (1988) 8 BCL 158 DECISION : 1.Appeal allowed. 2.Orders below set aside. 3. Report of Mr. McDougall dated 19 February 2001, together with the supplementary report dated 27 February 2001, be adopted, subject to the following matters: (a) Disallowance of variation VPR32. (b) Abigroup's delay costs to be calculated at $7,890.00 per day. (c) The referee's disallowance of $998,271.00 being Peninsula's costs incurred between 16 January 2000 and 31 March 2000 set aside. (d) Finding of misleading conduct and breach of cl.23 by Peninsula set aside. 4.Matter remitted to referee to determine question of Peninsula's costs incurred between 16 January 2000 and 31 March 2000 in accordance with these reasons, and following that determination, remitted to the Equity Division for entry of judgment (including judgment for costs of the proceedings and before the referee) in accordance with these orders and the referee's determination of that question. 5. Respondent to pay appellant's costs of the appeal, and to have a suitors' fund certificate if otherwise entitled. 6. Leave to Abigroup to apply, by furnishing written submissions within 14 days, for re-consideration of Order 3(b) and/or Order 5, in which case Peninsula is to respond by written submissions within a further 7 days.