Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5); Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326

Supreme Court New South Wales

Medium Neutral Citation: Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5); Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326 Hearing dates: 6–28 November, 1-8 and 12 December 2017; further submissions 31 December 2017 and 24 January 2018 Decision date: 20 March 2018 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Proceedings to be dismissed Catchwords: CONTRACTS — Remedies – Damages – Proof of loss or damage – contract to design and construct water detention system – where design used plastic cells placed in underground tanks – whether there has been "loss" – whether detention system has failed – whether detention system will last its design life – whether detention system requires remediation or replacement

CIVIL PROCEDURE — pleadings – whether plaintiffs' case as developed in submissions is within Technology & Construction List Statement – whether it is open to the plaintiffs to assert deficient construction of water detention system in light of the pleadings - ambit of claims available for misleading or deceptive conduct

CONTRACTS — Construction – Interpretation –hierarchy of construction contracts – whether risk passed from first plaintiff to second plaintiff

CONTRACTS — Construction – Interpretation – where contract defines "loss" with certain exceptions – whether reference to specific clause includes reference to chaussette to that clause

CONTRACTS — Remedies – Damages – Measure – alternative transaction case – proof of counterfactual

CONSUMER LAW — Misleading and deceptive conduct – whether representations were in fact made – whether any reliance – indirect causation