Auburn Council & Anor v Michael Davies Associates Pty Ltd (trading as Michael Davies Associates) [2008] NSWCA 286

New South Wales Court of Appeal

CITATION: Auburn Council & Anor v Michael Davies Associates Pty Ltd (trading as Michael Davies Associates) [2008] NSWCA 286

HEARING DATE(S): 19 June 2008

JUDGMENT DATE: 6 November 2008

JUDGMENT OF: Allsop P at 1; Beazley JA at 2; Giles JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: Trade Practices Act 1973 (C'th) - misleading conduct - construction management contract with guaranteed maximum price (GMP) - cost of works exceeded GMP - contractor claimed additional sums by reason of increase in scope of works - whether architect represented that contract with GMP gave certainty that cost would not exceed the GMP - trial judge held did not represent - no error shown - tender drawings and other documentation not fully developed - whether architect engaged in misleading conduct because documentation not adequate for fixed price contract - or because architect did not sufficiently make client aware that contruction manager might claim that development of documentation entitled it to additional sums - on facts, not misleading conduct.

Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251; Air Link Pty Ltd v Paterson [2005] HCA 39; (2005) 223 CLR 203; CSR Ltd v Maddalena [2006] HCA 1; (2006) 224 ALR 1; CASES CITED: Fox v Percy (2003) 214 CLR 118; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 3; (2001) 52 NSWLR 705; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.

Auburn Council - First Appellant PARTIES: State of New South Wales - Second Appellant Michael Davies Associates Pty Ltd (trading as Michael Davies Associates) - Respondent