UGL Rail Pty Limited v Trox (Australia) Pty Limited [2017] NSWSC 770

Supreme Court New South Wales

Medium Neutral Citation: UGL Rail Pty Limited v Trox (Australia) Pty Limited [2017] NSWSC 770 Hearing dates: 15/05/2017; 16/05/2017; 22/05/2017; 24/05/2017 Date of orders: 15 June 2017 Decision date: 15 June 2017 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Proceedings dismissed with costs. Catchwords: BUILDING AND CONSTRUCTION – whether sound attenuators designed and supplied by the defendant for the Lane Cove Tunnel Project were defective – BUILDING AND CONSTRUCTION – whether UGLR instructed Trox to repair, modify, replace and/or provide again the defective attenuators – where notices given to Trox were ineffective – CONTRACT – whether UGLR is entitled to recover damages – where Alstom subcontracted to Trox responsibility to design and supply the sound attenuators (Trox subcontract) – where Alstom sold its "Business" and all "Contracts" relating to it to UGLR (Sale contract) – whether Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract – whether UGLR had implied actual authority to administer and perform the Trox subcontract – whether UGLR's conduct was ratified by a deed of assignment – whether Alstom became a trustee of its rights under the Trox subcontract for the benefit of UGLR – CONTRACT – whether after completion of Sale contract Alstom suffered loss compensable in damages by reason of the defects – CONTRACT – whether UGLR incurred costs and expenses – where works were done by related companies – where UGLR has no obligation in relation to the costs and expenses incurred by those companies Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639 Byrnes v Kendle (2011) 243 CLR 253 Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 134 (1993) 32 NSWLR 50 Jessup v Queensland Housing Commission [2002] 2 Qd R 270 In Re Schebsman; Ex parte Official Receiver v Cargo Superintendents (London) Ltd [1944] Ch 83 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 Mackay v Dick (1881) 6 App Cas 251; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 Category: Principal judgment Parties: UGL Rail Pty Limited (Plaintiff) Trox (Australia) Pty Limited (Defendant) Representation: Counsel: M Ashhurst SC / S Docker (Plaintiff) CRC Newlinds SC / C McMeniman (Defendant)