Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWSC 130

Supreme Court New South Wales

Medium Neutral Citation: Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWSC 130 Hearing dates: 11, 12 February 2020 Decision date: 26 February 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Proceedings are dismissed Catchwords: CONSUMER LAW – Trade Practices Act 1974 (Cth) – ss 51(1), 82(1) – misleading and deceptive conduct – defendant structural engineer issued a certificate as to structural soundness of a proposed building which certificate was misleading or deceptive or likely to mislead or deceive – plaintiffs claim damages said to have been caused by this conduct because, after the project was delayed to remedy faulty construction undertaken by the builder in reliance on the certificate, a bank, which had lent them money, appointed receivers and sold their land – necessity for plaintiffs to prove, on the balance of probabilities, that the conduct complained of caused them loss – necessity for the plaintiff to prove that the conduct complained of was a material part of the bank's motivation – plaintiffs fail to bring evidence of the bank's motivation – plaintiffs failed to establish that the conduct complained of played any, or any sufficient, role in causing the bank to act – HELD: proceedings dismissed. Legislation Cited: Trade Practices Act 1974 (Cth) Cases Cited: Badenach v Calvert (2016) 257 CLR 440 Henville v Walker (2001) 206 CLR 459 Ho v Powell (2001) 51 NSWLR 572 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332 Tabet v Gett (2010) 240 CLR 537 Troulis v Vamvoukakis [1998] NSWCA 237 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Principal judgment Parties: Mistrina Pty Ltd - First Plaintiff Estate of the late Elias Sikos - Second Plaintiff