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

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

The plaintiffs failed to prove on the balance of probabilities that the defendant's misleading Certificate caused their claimed losses. Although the Certificate was misleading and construction was delayed by the non-compliant raft slab, the plaintiffs adduced no sufficient evidence of the Bank's motivation for demanding repayment, appointing receivers and selling the land. Which factors the Bank took into account, and their importance, were left to conjecture. Without proof that the structural defect and delay materially contributed to the Bank's actions, the plaintiffs could not establish causation for loss of the commercial opportunity or loss of Rowley Street.

Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Equity Technology and Construction List; Claim for Damages for Misleading or Deceptive Conduct Under the Trade Practices Act 1974 (cth) / Principal Judgment After Hearing
Outcome
Proceedings dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'causation' 'loss of Commercial Opportunity' 'structural Engineering Certificate' 'bank Enforcement and Receivership' 'assessment of Damages']
['consumer Law' 'trade Practices' 'construction Law' 'damages'] ['misleading or Deceptive Conduct' 'causation' 'loss of Commercial Opportunity' 'structural Engineering Certificate' 'bank Enforcement and Receivership' 'assessment of Damages']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Claim for Damages for Misleading or Deceptive Conduct Under the Trade Practices Act 1974 (cth) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant's misleading structural engineering certificate caused the plaintiffs to lose the opportunity to complete the development and make a profit." "Whether the plaintiffs proved that the structural defect and delay were a material factor in the Bank's decision to demand repayment, appoint receivers and sell the land." "Whether the plaintiffs proved that the defendant's conduct caused the loss of Rowley Street." 'If causation were established, how the lost commercial opportunity should be valued.']

Ratio Decidendi

The plaintiffs failed to prove on the balance of probabilities that the defendant's misleading Certificate caused their claimed losses. Although the Certificate was misleading and construction was delayed by the non-compliant raft slab, the plaintiffs adduced no sufficient evidence of the Bank's motivation for demanding repayment, appointing receivers and selling the land. Which factors the Bank took into account, and their importance, were left to conjecture. Without proof that the structural defect and delay materially contributed to the Bank's actions, the plaintiffs could not establish causation for loss of the commercial opportunity or loss of Rowley Street.

Court Disposition

Proceedings dismissed.

Orders

  • ['The proceedings are dismissed.' "The plaintiffs are provisionally ordered to pay the defendant's costs of the proceedings, unless within 7 days a party notifies the Associate in writing that another order is sought and specifies briefly the reasons." 'The exhibits are to be returned.']