PLAZA WEST PTY LIMITED v SIMON’S EARTHWORKS (NSW) PTY LIMITED [2010] NSWSC 1426

New South Wales Supreme Court

CITATION : PLAZA WEST PTY LIMITED v SIMON'S EARTHWORKS (NSW) PTY LIMITED [2010] NSWSC 1426

HEARING DATE(S) : 18, 19, 20, 21, 22, 25, 26, 27, 28 October, 2, 4, 5 and 11 November 2010

JUDGMENT DATE : 9 December 2010

JUDGMENT OF : Tamberlin AJ at 1

DECISION : 1. The parties are to bring in short minutes of proposed orders to give effect to these reasons within 5 working days. 2. Cross-claim dismissed.

CATCHWORDS : CONTRACT – commercial agreement – construction – identifying contractual terms – whether costs of bulk excavation earthworks were to be paid as actual or fixed costs - EQUITY – fraudulent misrepresentation – whether payments made were for material which was misrepresented as being excavated from site and disposed of, whether payments made indicated reliance on misrepresentation - EQUITY – fraudulent misrepresentation – whether false invoices were issued by excavation company resulting in overpayment - EQUITY – fraudulent misrepresentation – whether material was misrepresented as contaminated, whether payments made indicated reliance on misrepresentation - EQUITY – fraudulent misrepresentation – whether rate charged was reasonable for removing and disposing of contaminated material - TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW) – consumer protection – misleading and deceptive conduct – reliance, inducement and causation – whether false representations were made that material was contaminated

Evidence Act 1995 (NSW), s 140 LEGISLATION CITED : Fair Trading Act 1987 (NSW), ss 42, 68, 75B Trade Practices Act 1975 (Cth), ss 52, 82

CATEGORY : Principal judgment

CASES CITED : Briginshaw v Briginshaw (1938) 60 CLR 336 Magill v Magill (2006) 226 CLR 551