Abigroup Contractors Pty Limited v Sydney Catchment Authority (No. 3) [2006] NSWCA 282

Reported Decision : 67 NSWLR 341

New South Wales Court of Appeal

CITATION: Abigroup Contractors Pty Limited v Sydney Catchment Authority (No. 3) [2006] NSWCA 282

HEARING DATE(S): 9 March 2006

JUDGMENT DATE: 20 October 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 154; Tobias JA at 155

DECISION: 1. Appeal allowed; 2. Cross-appeal dismissed; 3. The respondent to pay the appellant's costs of the appeal and the cross-appeal but to have a certificate under the Suitors Fund Act 1951 (NSW) if entitled; 4. Verdict and judgment for the appellant for damages to be assessed; 5. Subject to order 6, remit the matter to the Supreme Court for redetermination limited to: a) the quantum of damages; b) the determination of the issues of delay and acceleration; 6. Direct the parties to advise the Court within 14 days of the date of this judgment as to whether they have reached agreement as to the quantum of damages and whether the matter is required to be remitted in accordance with order 5(a) or (b); 7. Direct the parties that if agreement is reached with respect to either or both of the matters referred to in Order 5, to bring in Short Minutes of Order within 21 days of the date of this judgment reflecting that agreement.

CATCHWORDS: TRADE PRACTICES – misleading and deceptive conduct under Trade Practices Act - CAUSATION – Trade Practices Act - importance of statutory context – governing words in s 82 – "by conduct of" – whether appellant suffered loss by the respondent's contravening conduct – "but for" test inapplicable on facts – determination of what conduct would not be misleading - DAMAGES – Trade Practices Act – not limited by analogy to other areas of law – closely linked to causation – approach should be flexible to avoid injustice – entitled to prove loss on a discrete portion of contract - PRACTICE AND PROCEDURE – decision by Referee – competing expert evidence – adequate reasons required in form of examination and analysis of evidence – inadequate attention given by Referee