Mergen Holdings Pty Ltd v Gosford City Council & Anor [1987] FCA 719

Mergen Holdings Pty Ltd v Gosford City Council & Anor [1987] FCA 719

It was not established that the Council engaged in misleading or deceptive conduct or conduct likely to mislead or deceive. The specification required compliance with industrial awards but did not mandate the method of calculation or implementation, especially where the award itself allowed for flexible 'yard by yard' implementation negotiated between employers and unions. Thus, each tenderer was entitled to submit on their interpretation and there was no actionable misrepresentation by the Council.

Parties
Applicant: Mergen Holdings Pty. Limited; First Respondent: Gosford City Council; Second Respondent: Otto Australia Pty. Limited
Jurisdiction
Australia
Judgment Date
14 October 1987
Procedural Posture
Application / Final Judgment
Outcome
Application dismissed
Legal Topics
Misleading and Deceptive Conduct, Tenders, Industrial Awards
Trade Practices Industrial Law Misleading and Deceptive Conduct Tenders Industrial Awards

Case Brief

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Parties

Mergen Holdings Pty. Limited

Applicant

Gosford City Council

First Respondent

Otto Australia Pty. Limited

Second Respondent

Procedural Posture

Application / Final Judgment

Legal Issues

  1. 1 Whether the Council engaged in misleading or deceptive conduct under s. 52 of the Trade Practices Act 1974 in the process of calling and accepting tenders for the removal and disposal of nightsoil and effluent

Ratio Decidendi

It was not established that the Council engaged in misleading or deceptive conduct or conduct likely to mislead or deceive. The specification required compliance with industrial awards but did not mandate the method of calculation or implementation, especially where the award itself allowed for flexible 'yard by yard' implementation negotiated between employers and unions. Thus, each tenderer was entitled to submit on their interpretation and there was no actionable misrepresentation by the Council.

Court Disposition

Application dismissed

Orders

  • The application be dismissed.
  • The applicant pay the costs of the first and second respondents including reserved costs.