Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: WHITE J
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] FCA 1049
• Date: 05 July 2019

FEDERAL COURT OF AUSTRALIA

Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited [2019] FCA 1049

File number:	SAD 354 of 2015
Judge:	WHITE J
Date of judgment:	5 July 2019
Catchwords:	CONTRACTS – Applicant contracted with the Respondents to construct an access road to a remote mine site – various matters led to the incurring of additional costs and to construction delays – claim for damages for breach of contract - claim for payment of the time-related costs incurred by the Applicant in respect of additional work – claim for other consequences of the additional time taken and the additional work – claim for payment of variations. ; Held: claim for the time-related costs fails but other aspects of the breach of contract claim succeed in part. ; CONSUMER LAW – claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – claim that in entering into the contract the Applicant relied on four representations made by the Respondents which were misleading or deceptive – claim that if the representations had not been made the Applicant would not have entered into the contract at all or, alternatively, would have entered into a contract on schedule of rates terms which assigned the risk and cost of additional work and delay to the Respondents – Applicant did not prove that the representations were made or that they were misleading or deceptive – Applicant did not prove that it relied on the pleaded representations in entering into the contract – Applicant did not establish loss by reason of the alleged misleading or deceptive conduct. ; Held: contraventions of s 18 of the ACL not made out.
Legislation:	Australian Consumer Law ss 18, 236 Competition and Consumer Act 2010 (Cth) Sch 2 Evidence Act 1995 (Cth) ss 69, 81 Trade Practices Act 1974 (Cth) s 82
Cases cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Australian Competition and Consumer Commission v Emerald Ocean Pty Ltd [2002] FCA 740 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317 BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2007] VSC 409 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Dante De Grazia t/as Sydney Building Services v Solomon [2010] NSWSC 322 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 Jango v Northern Territory of Australia (No 4) [2004] FCA 1539 Jennings Construction Ltd v QH & M Birt Pty Ltd (1986) 8 NSWLR 18 Mackay v Dick (1881) 6 App. Cas. 251 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 218 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 360 Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 Perini Corporation v Commonwealth of Australia [1969] 2 NSWR 530 Reiffel v ACN 075 839 226 Ltd [2003] FCA 194; (2003) 132 FCR 437 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Seven Network Ltd v News Ltd (No 14) [2006] FCA 500 Stone v Chappel [2017] SASCFC 72; (2017) 128 SASR 165 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 Walton Construction Pty Ltd v Illawarra Hotel Co Pty Ltd [2011] NSWSC 534 Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 WMC Resources Ltd v Leighton Contractors Pty Ltd [1999] WASCA 10; (1999) 20 WAR 489 Wormald Engineering Pty Ltd v Resources Conservations Co International (1988) 8 BCL 158
Date of hearing:	4-8, 12-15, 18, 19, 21, 26 and 27 June 2018
Date of last submissions:	4 July 2018
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	864
Counsel for the Applicant:	Mr P O’Sullivan QC with Mr N Floreani
Solicitor for the Applicant:	Kain Lawyers
Counsel for the First and Second Respondents:	Ms P Cahill SC with Mr J Quang-Sing
Solicitor for the First and Second Respondents:	Allens
Counsel for the Third Respondent:	The Third Respondent did not participate in the trial

ORDERS

		SAD 354 of 2015
BETWEEN:	LUCAS EARTHMOVERS PTY LIMITED (ACN 008 122 530) Applicant
AND:	ANGLOGOLD ASHANTI AUSTRALIA LIMITED (ACN 008 737 424) First Respondent ; INDEPENDENCE GROUP NL (ACN 092 786 304) Second Respondent ; KNIGHT PIÉSOLD PTY LIMITED (ACN 001 040 419) Third Respondent

JUDGE:	WHITE J
DATE OF ORDER:	5 July 2019

THE COURT ORDERS THAT:

1. The matter be adjourned to a date to be fixed for the hearing of submissions with respect to interest, costs and the entry of judgment.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction	[1]
The parties	[9]
The witnesses	[17]
The Lucas Tender of 31 January 2011	[23]
Post Tender negotiations	[39]
Issue of the Notice of Award for the Contract	[59]
The Contract	[63]
The performance of the works	[82]
The baseline program and critical delay	[135]
The Recreated Program	[137]
Other...