Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228

Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228

The appeal failed because the referees correctly construed the cost-plus contract as preventing Bellevarde from recovering the Cutcross profit uplift as a cost attributable to the agreement, notwithstanding that Cutcross was an authorised subcontractor. CPC proved that, in reliance on Bellevarde's misrepresentations and non-disclosure, it paid more than it was contractually obliged and would not have paid the secret profit. The excess paid was an appropriate measure of loss for deceit and under the Trade Practices Act 1974 (Cth). In any event, Bellevarde's appellate causation and loss argument was not clearly put to the referees or the primary judge and did not demonstrate discretionary...

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Civil Appeal / Appeal From Orders Adopting Referees' Report in Proceedings Concerning a Cost Plus Building Contract
Outcome
Appeal dismissed with costs.
Legal Topics
['cost Plus Building Contract' 'authorised Subcontractor' 'related Company Subcontractor' 'deceit' 'misleading Conduct' "referees' Report" 'adoption of Report' 'appeal Principles']
['contract' 'damages' 'tort' 'trade Practices' 'practice and Procedure'] ['cost Plus Building Contract' 'authorised Subcontractor' 'related Company Subcontractor' 'deceit' 'misleading Conduct' "referees' Report" 'adoption of Report' 'appeal Principles']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Orders Adopting Referees' Report in Proceedings Concerning a Cost Plus Building Contract

Legal Issues

  1. 1 ['Whether Cutcross Pty Ltd, although an authorised subcontractor, was a subcontractor whose invoiced profit uplift was recoverable as a cost under cl 14(j) of the cost-plus building contract.' "Whether CPC proved loss for deceit and misleading conduct where the claimed loss was the excess paid under progress certificates because of Cutcross' profit uplift." 'Whether Bellevarde could raise on appeal a case about causation and loss that was not clearly put to the referees or the primary judge.' "What principles govern appellate review of a decision adopting a referees' report."]

Ratio Decidendi

The appeal failed because the referees correctly construed the cost-plus contract as preventing Bellevarde from recovering the Cutcross profit uplift as a cost attributable to the agreement, notwithstanding that Cutcross was an authorised subcontractor. CPC proved that, in reliance on Bellevarde's misrepresentations and non-disclosure, it paid more than it was contractually obliged and would not have paid the secret profit. The excess paid was an appropriate measure of loss for deceit and under the Trade Practices Act 1974 (Cth). In any event, Bellevarde's appellate causation and loss argument was not clearly put to the referees or the primary judge and did not demonstrate discretionary...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']