Austar Plumbing Services Pty Ltd (ACN 091 391 301) v Sydney Water Corporation (ABN 49 776 225 038) [2018] NSWSC 864

Supreme Court New South Wales

Medium Neutral Citation: Austar Plumbing Services Pty Ltd (ACN 091 391 301) v Sydney Water Corporation (ABN 49 776 225 038) [2018] NSWSC 864 Hearing dates: 8, 12 & 13 February 2018 Date of orders: 03 August 2018 Decision date: 03 August 2018 Jurisdiction: Equity Before: Slattery J Decision: Summons dismissed. Plaintiff ordered to pay the defendant's costs subject to any application for a special costs order. Leave granted to seek consequential relief. Catchwords: ADMINISTRATIVE LAW – judicial review of decision of the defendant – defendant is a public authority supplying water and disposing of waste water in the Sydney Metropolitan area – defendant decides to de-list the plaintiff as a listed provider of services to the defendant's infrastructure – decision preceded by show cause notice issued by defendant to plaintiff – plaintiff responded to show cause notice – decision then made delisting the plaintiff – whether the defendant's decision to de-list was unreasonable – whether the defendant's decision was affected by actual or apprehended bias – whether defendant failed to take into account relevant considerations in making the decision.

CONTRACT – formation of contract – whether plaintiff's listing as one of defendant's service providers arises under a contract between the plaintiff and the defendant in the form either of an "Overarching Agreement" or certain "Developer Works Deeds" – whether an email from Sydney Water on 15 May 2012 constituted an offer which Austar subsequently accepted

CONTRACT – implied duty of good faith – whether in making the decision the defendant was subject to and breached an implied duty of good faith and fair dealing owed to the plaintiff. Legislation Cited: Government Information (Public Access) Act 2009 Interpretation Act 1987, s 47 Sydney Water Act 1994, s 5(3) State Owned Corporations Act 1989 Uniform Civil Procedure Rules 2005, Part 59, rule 9 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bushell v Environment Secretary [1981] AC 75 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Jones v Dunkel (1959) 101 CLR 298 Kamm v State of New South Wales (No. 4) [2017] NSWCA 189 L & Anor v State of South Australia [2017] SASCFC 133 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 R v Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) [21-460] Category: Principal judgment Parties: Plaintiff: Austar Plumbing Services (ACN 091 391 301) Defendant: Sydney Water Corporation (ABN 49 776 225 038) Representation: Counsel: