Pitcher Partners Consulting Pty Ltd v Neville's Bus Service Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 23 July 2019
• Neutral Citation: [2019] FCAFC 119
• Date: 23 July 2019

FEDERAL COURT OF AUSTRALIA

Pitcher Partners Consulting Pty Ltd v Neville’s Bus Service Pty Ltd [2019] FCAFC 119

Appeal from:	Neville’s Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd [2018] FCA 2098
File number:	VID 66 of 2019
Judges:	ALLSOP CJ, YATES AND O'BRYAN JJ
Date of judgment:	23 July 2019
Catchwords:	TORTS – deceit – where appellants’ advice on a tender price contained an amortisation error – tender won – appellants dishonestly concealed error and provided false assurance that contract price included full subvention allowed for by Transport for NSW – onus on respondent to prove damages qualified when deliberate wrong of applicants caused difficulties of proof – no Jones v Dunkel inference drawn – no error in finding on the balance of probabilities that respondent would have successfully renegotiated the contract had the error been known – direct loss calculated as prejudice or disadvantage suffered as a consequence of altering position under fraudulent inducement - appropriate to rely on presumption against wrongdoer – liar held to restore the innocent party to position consistent with lie being true - appeal dismissed with costs ; CONSUMER LAW – dishonest conduct found to be seriously misleading or deceptive conduct
Legislation:	Competition and Consumer Act 2010 (Cth) sch 2, ss 18, 236, 237 Trade Practices Act 1974 (Cth), s 87
Cases cited:	Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; 67 NSWLR 341 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Badenach v Calvert [2016] HCA 18; 257 CLR 440 Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 ; Clef Aquitaine SARL v Laporte Materials (Barrow) Ltd [2001] QB 488 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; 2 All ER 119 Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 246 CLR 486 Fox v Percy [2003] HCA 22; 214 CLR 118 Gould v Vaggelas [1985] HCA 75; 157 CLR 215 Henville v Walker [2001] HCA 52; 206 CLR 459 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 Houghton v Immer (No 155) Pty Ltd [1997] NSWSC 608; 44 NSWLR 46 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (No 2) (1989) 24 NSWLR 499 Mackay v Dick (1881) 6 App Cas 251 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Manly Council v Byrnes [2004] NSWCA 123 Marks v GIO Australia Holdings Ltd [1998] HCA 69; 196 CLR 494 McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 McConnel v Wright [1903] 1 Ch 546 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 Palmer Bruyn and Parker Pty Ltd v Parsons [2001] 14 HCA 69; 208 CLR 388 Payne v Parker [1976] 1 NSWLR 191 Potts v Miller [1940] HCA 43; 64 CLR 282 Precision Plastering Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; 144 CLR 596 Smith New Court Securities Ltd v Citibank NA [1996] UKHL 3; [1997] AC 254 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 Toteff v Antonas [1952] HCA 16; 87 CLR 647 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Westpac Banking Corporation v Jamieson [2015] QCA 50; [2016] 1 Qd R 495
Date of hearing:	13 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	138
Counsel for the Appellants:	Mr B Walker SC with Mr J Tomlinson
Solicitor for the Appellants:	SBA Law
Counsel for the Respondent:	Mr JT Gleeson SC with Mr ARR Vincent and Mr JK Edwards
Solicitor for the Respondent:	HWL Ebsworth Lawyers

ORDERS

		VID 66 of 2019
BETWEEN:	PITCHER PARTNERS CONSULTING PTY LTD ACN 106 840 493 First Appellant ; PITCHER PARTNERS Second Appellant ; IAN STEWART Third Appellant
AND:	NEVILLE'S BUS SERVICE PTY LTD ACN 000 193 653 Respondent

JUDGES:	ALLSOP CJ, YATES AND O'BRYAN JJ
DATE OF ORDER:	23 JULY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellants (Pitchers) are an accounting consulting company (to which, where necessary to be identified separately, we will refer as “Pitcher Consulting”) and a partnership of accountants (to which, where necessary to be identified separately, we will refer as “Pitcher Partners”), an executive director and partner of which was Mr Ian Stewart. Mr Stewart was the third respondent at trial. He has not taken part in the appeal.

2. Whilst the facts need to be understood with precision and in full, it is important to appreciate the essential human simplicity of what occurred. For reasons that remain unarticulated, Mr Stewart untruthfully represented to Mr Joe Calabro, a director of the respondent (to which we will refer as NBS), which was his client, the content of a tender for the right to operate buses in a defined area of Sydney to be awarded by a State Government instrumentality Transport for New South Wales (TfNSW) that he, Mr Stewart, had been instrumental in preparing on behalf of NBS.

3. The lie was that the price in the tender (that had been lodged, and accepted by TfNSW as the winning tender) that he and his colleagues had prepared from NBS’ documents had accurately and appropriately provided for the anticipated costs (principal and interest) of finance leases of buses to be taken over from the existing incumbent operator (so-called,...