PLAZA WEST PTY LIMITED v SIMON’S EARTHWORKS (NSW) PTY LIMITED [2010] NSWSC 1426

PLAZA WEST PTY LIMITED v SIMON’S EARTHWORKS (NSW) PTY LIMITED [2010] NSWSC 1426

The Court found that, with minor exceptions, the material excavated and disposed of by Earthworks was VENM rather than non-VENM; that Plaza relied on Earthworks' false representations about the nature of the material, the actual costs of removal and disposal, and falsified invoices; that the agreement was for actual cost plus profit, overheads and GST rather than a fixed rate; and that Earthworks, with Mr Emerzidis' knowledge and participation, engaged in fraudulent and misleading or deceptive conduct causing Plaza loss. The defendants' non-reliance, fixed-rate and cross-claim arguments were rejected.

Jurisdiction
Australia
Judgment Date
09 December 2010
Procedural Posture
Principal Judgment in the Equity Division, Technology and Construction List Concerning Contract, Fraudulent Misrepresentation and Misleading or Deceptive Conduct Claims With a Cross Claim / Judgment After Hearing
Outcome
Plaza's claims were substantially upheld in the reasons; the cross-claim was dismissed and the parties were directed to bring in short minutes of proposed orders.
Legal Topics
['commercial Agreement Construction' 'bulk Excavation Earthworks' 'variation Pricing' 'fraudulent Misrepresentation' 'tort of Deceit' 'misleading or Deceptive Conduct' 'reliance and Causation' 'contaminated Material Classification' 'venm and Inert Waste' 'false Invoices' 'cross Claim for Under Certification']
['contract' 'equity' 'trade and Commerce' 'construction Law' 'evidence'] ['commercial Agreement Construction' 'bulk Excavation Earthworks' 'variation Pricing' 'fraudulent Misrepresentation' 'tort of Deceit' 'misleading or Deceptive Conduct' 'reliance and Causation' 'contaminated Material Classification' 'venm and Inert Waste' 'false Invoices' 'cross Claim for Under Certification']

Case Brief

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Procedural Posture

Principal Judgment in the Equity Division, Technology and Construction List Concerning Contract, Fraudulent Misrepresentation and Misleading or Deceptive Conduct Claims With a Cross Claim / Judgment After Hearing

Legal Issues

  1. 1 ['Whether material removed from the site was contaminated non-VENM material or VENM material.' 'Whether Plaza relied on representations by or on behalf of the defendants that the material removed was contaminated non-VENM material.' "Whether any reliance by Plaza on the defendants' representations was unreasonable." "Whether the parties' arrangements for variations concerning removal and disposal of excavated material were for an agreed fixed rate plus profit and overheads or for actual cost plus overheads and profits." "Whether the defendants made false representations as to Earthworks' cost of carrying out excavation and disposal of contaminated material." 'Whether representations made by Earthworks breached s 52 of the TPA and s 75B of the FTA.' 'Whether Earthworks misrepresented that the alleged fixed rate was reasonable and whether it exceeded the reasonable market rate.' "Whether Plaza relied on false representations as to Earthworks' costs when it paid on the basis of false invoices in 2008." 'Whether Plaza suffered loss or was merely discharging contractual obligations when paying invoices for variations.']

Ratio Decidendi

The Court found that, with minor exceptions, the material excavated and disposed of by Earthworks was VENM rather than non-VENM; that Plaza relied on Earthworks' false representations about the nature of the material, the actual costs of removal and disposal, and falsified invoices; that the agreement was for actual cost plus profit, overheads and GST rather than a fixed rate; and that Earthworks, with Mr Emerzidis' knowledge and participation, engaged in fraudulent and misleading or deceptive conduct causing Plaza loss. The defendants' non-reliance, fixed-rate and cross-claim arguments were rejected.

Court Disposition

Plaza's claims were substantially upheld in the reasons; the cross-claim was dismissed and the parties were directed to bring in short minutes of proposed orders.

Orders

  • ['The parties are to bring in short minutes of proposed orders to give effect to these reasons within 5 working days.' 'Cross-claim dismissed.']