Corporate Ventures Pty Ltd v Ian Turner & Partners Pty Ltd [1987] FCA 266

Federal Court of Australia|1987-05-14|Before: Gummow J

TRADE PRACTICES Misleading and deceptive conduct - applicability of s.52 of the Trade Practices Act to statements made in the course of a commercial

transaction not involving a "consumer" - claim in the accrued jurisdiction for breach of contract.

Interest Power of the Ccurt to order payment of interest up tc judgment prior to the operat

s.S1IA cf the Federal Court Act - whether "loss or damage" in 2.82 of the Trade Practices Act may include a component representing 1033 of interest cn moneys

not received - whether s.79 of the cCudiciary; Act Operates to pick up s.94 of ths Supreme Court Act 1270

(NSW) and provide a scurce of pcwer tc the Csurt tc order interest up to judgment.

Trade Practices Act 1374 3.52, 32 Judjciary Act 1903 3.79 Supreme Court Act 1370 'NSW) 3.94

IN THE FEDERAL COURT OF AUSTRATIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

JUDGE MAKING OSDER Gummow J DATE OF °PDER 3 14 May 1987 WHERE MADE 5 Sydne; THE COURT ORDERS THAT:

There be judgment fcr the Applicant in the sum of

$12,452.21. a. The Respondent pay the Applicant's ccsts.

Masters v. Cameron (1954) 931 CLR 253 referred to. Akron Tyre Co.Pty.Ltd. v. Kittson (1951) 82 CLR 477

Newlands v. Argyll General Insurance Co. Ltd. (1959) 59 SR (NSW) 130 referred to.

Trollope and Colls Ltd. v. Atomics Power Construction Ltd. £1963] 1 WLR 333 referred to.

e Pty. Ltd. v. Lubidineuse (1985) 59 ALR 234 referred to. Brown v. Riverstone Meat Co.Pty. Ltd. £19851 ATPR 46, 674 referred to. State Bank of New South Wales v. Commonwealth Savings Bank of Australia (1986) 67 ALR 123 applied. Gates v. City Mutual Life Assurance Society (1986) 690 ALJR 239 referred to. Sanrod Fty Ltd v. Dainford (1984) ATPR 45,249 followed. Simonius Vigcher and Co. v. Holt and Thompecn £12379] 2 NSWLR 322 referred tc.

Corporate Ventures Pty. Ltd v. Ian Turner and Partners Pty.Ltd. G. 165 of 1986

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Wr Foster waz in 1984 a project manager empleyed by the respondent and one of his tasks was te cbtain tendars far

the spraying of the ceiling in the warehouse of the Brcokvale

project. Fire proofing reduces insurance rates, hence the azgpressions "fire rated" and "fire retardant rating". The

veference in the quotaticn and purchase order to Ordinance 70 is to lecal government requirements and any successful tender would require approval by the lscal Cosunci:. Te was 'che gractice of the applicant, cn zomeé occasionz, ts qucte Erices Coe lump gum contracts after phone salis and withcut making its own méasurement2.

Sy; 31 January 1984 Mr Foster had, as h2 agreed in aviaence, something of 2 time crizizg on his hands ag regards Chis particular aspect of the project. The Tcuncil had just veafused approval under Crdinance 760 to an earlier tender by another business. The project had to be completed by the end of March. & waz in chig getting chat on 21 January 1984 ke

elephconed the applicant and ezpoke co Mr Cook, the be

The accsunts of chat télephsne call and the subsequent

significantly. However, both agrse that Mr Foster mentioned 1SS52 3aq.m3z. to Mr Cook and said he should go to Brcokvale to look at the job. Mr Cook says he was told 1552 sq.ms waz the area in the course of Mr Foster stressing the need for an urgent price for what he said to Mr Cook would be a "goed jab". Mr Cook understood a lump sum quotation was what was scught. The sice of the job made it attractive ti Mr Cosel and it i2 a

fais inference that Mr Foster appreciated this weuli ba zo ani

linked it ts the urgency, fcom hia point sf view, in gatring 4a ffuca3.

"Mr Foster 3ays that just before Mr Ccock lLlafc the office on l FPebruary Mr Cock asked whether ha csuld tell him "approzimately what 'che figure was". Me Foster says he understced what Mr Cook sought was the figure "relating to area". My Foster asaya he checked a document and then said ts Mr Cock that the "approximate area of the ceiling waz 1552

mécre3 squared". The term "approximate area" 4:3 nst ageear in

she evidence of Mr Cssk sn matteas?: in which there i3 ceirflocte

ag an os hk % - ~ ct : - =: o- SY SLSEParity xcetween Tham. Me Cack waz the mir2 imeressive

watnes3 both in his demegancur in the witnez2 tex and in thes atcength and ccogency cf Als acccunt cf what happanedi. Further, "gy Tock'3 account ia consiztent with game contemporanicus

On 2 February, according ts Mr Cook, he and a fellow officer of the applicant, Mr Fryer, (now dead) were dizcussing the preparation of a quotation. In order to proceed it was necessary to have the exact area. Mr Cock jotted various possibilities on notepaper, including "1404", 1629" and "i553", Neither he nor Mr Fryer (who had inspected the project arawings at the respondent's office on the afternson forthcoming. For part cof the work, 'the applicant angageli

Sus-contractor, E.A. Bailey and Seng Pty.Lt2. It -cfeommencsed

Wor. on 23 Pebruary and the applicant aid ge cn 2 March.

vas onot until 27) March tha- the respcendent wrote accerting amendments made by che

app-icant. The terms of the amendments are of no immediate

soncern. The document bears the date 7 February, the date of the purchase order. There was no apecificaticn of the measurement of the area of the ceiling in the quotation purchase order, or printed contract. The printed contract also obliged the respondent to supply electricity for the applicant's operations and to bear the cost of so doing. a

refer tc thiz aspect of the case later in these reasons.

Io should add that in my view the dssratcn cf the quctaticn followed by the purchase ordar produced a contract at that stage, being a contract in the seccnd category described in Master3 v. Cameron (1954) 91 CLR 252 at 269-251. That being so, it is not necessary, at least for the purposes of this case, to determine the legal effect of the

{see Akron Tyre Co.Pty.Ltd v. K on 951) 82 CLR 477 at 498; MNewlards v. Argyll General Insce.Co.Lta C€19591 SR (NSW) 129; Trolicss

and Csiis Lea. v. Atomic Power Constructicn 263. €1953] 1 WER

The work was completed by the and cf March. iy mid-March it was apparent to Mr Cock that materials were be conzumed at a greater rate in the spraying cperaticns 'han

would have been expected if the area was az he believed it 'to

discussing other matters, Mr Cook pointed this cut to Mr

present. So was the respondent'3s construction foreman, Mr Knudsen. All four gave evidence of what tock place. All agreed that Mr Cook raigzed the issue of the area, that Mr Coulter or Mr Foster or both, indicated the matter should be looked into and if 3ubstantiated 67 measurement cf the area gzomething would be done. But there were differences in emphasis. Mr Cook in his evidence said the continuing urgency cf the completion was atressed to him. The respondent 3 witnes323 on thatr part gaid any a3surances tc Mr Cook wers snily in terms of looking into the rrovisicns of the contract.

It waz after thia meeting that the terms of whe contract were

The claims by the applicant tc remuneration for wor's acne in respect of the area additicnal tc 1552 gq.ms. was refused by the respondent on the footing that the ccntrasct called for a lump sum payment in respect of the ar2a, whatever

The applicant aubmits, and =I assept Mr Sock = evidence, that the quotation of aoc y 3lF aa count 0! \ FEE ERALIA on, PRINCIPAL

NEW SOUTH WALES DISTRICT REGISTRY ) No. G228 of 1986 ) GENERAL DIVISION ) BETWEEN: JOHN JOSEPH MOSTYN Applicant AND: THE DEPUTY COMMISSIONER OF TAXATION Respondent

The background of this matter appears in the reasons for judgment in proceedings between the parties No. G.414 of 1986. In these proceedings, the prosecutor seeks orders by way of judici1al review pursuant to the provisions of s.39B(1) of the

Judiciary Act 1903 (see p.8 of those reasons). Sch 1 of the

Judicial Review Act exempts certain decisions from review under that statute but there 1s no such limitation on the jurisdiction

conferred on the Court by s.39B(1) of the Judiciary Act (see

Mahoney v. Singh-Dillon, Full Federal Court, unreported, 19 February 1987).

Having found against the respondent on his objection to jurisdiction in the other proceedings, 1t 1S unnecessary that I

deal further with this application. I propose to stand the

proceedings over generally but reserve liberty to restore should

restoration to the list become necessary. Costs will be reserved.

preceding Cw (/) page are a true copy of the Reasons for Judgment herein of

Supreme Court Act 1270(NSW)

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Judgment (59 paragraphs)

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