Deloitte Services Pty Ltd v HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) [2016] NSWSC 1597

Supreme Court New South Wales

Medium Neutral Citation: Deloitte Services Pty Ltd v HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) [2016] NSWSC 1597 Hearing dates: 25/10/2016, 26/10/2016, 27/10/2016, 28/10/2016 and 01/11/2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Plaintiff entitled to damages or compensation from third defendant in the sum of $3,636,368 plus interest. Parties to bring in draft orders. Catchwords: TRADE PRACTICES – misleading or deceptive conduct – whether first and second defendants engaged in misleading or deceptive conduct by over-invoicing for amounts owed – where representations as to payment practice were made by the first and second defendants – whether the representations were relied upon by the plaintiff – whether the third defendant was involved in the contravention – Australian Consumer Law, ss 2, 18 CONTRACT – building and construction – whether there was an established payment practice which applied to all project management contracts – where payment practice differed from process of certification and payment different from written contracts entered into – whether contract or arrangement in place that permitted defendants to over-invoice – whether first and second defendants under-paid contracts for work completed EQUITY – trusts – whether second defendant was a trustee of the monies paid by the plaintiff into a trust account – whether the particular account is a trust account – whether second defendant breached its obligations as trustee – whether third defendant procured any breaches CORPORATIONS – insolvent trading – whether first and second defendant was insolvent during the relevant period – whether first and second defendants incurred a debt during the relevant time period Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law Corporations Act 2001 (Cth) Category: Principal judgment Parties: Deloitte Services Pty Ltd (Plaintiff) HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) ACN 003 507 622 (First Defendant) HBO EMTB Projects Pty Ltd (In Liquidation) ACN 096 519 201 (Second Defendant) Kevin Michael Fitzgerald (Third Defendant) Brian Rogut (Fourth Defendant) Mauricio Cordoba (Fifth Defendant) George Fitzgerald (Sixth Defendant) Representation: Counsel: D R Stack (Plaintiff) T D Tzovaras (Third Defendant)