Unisys Australia Ltd v RACV Insurance Pty Ltd & Anor

[2004] VSCA 81

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representations
4. › Pre-contractual representations in competitive tender process
5. › Whether representations related to system to be supplied or only to prototype demonstrated
6. › Whether representations qualified or withdrawn by disclaimers in contract documents
7. › Trade Practices Act 1974 (Cth), ss 51A, 52, 82
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representations as to future matters
4. › Reasonable grounds
5. › Onus of proof on representor
6. › Whether representor must show belief that representation was correct and reasonable grounds for that belief
7. › Trade Practices Act 1974 (Cth), s 51A
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Reliance
4. › Whether reliance established where decision-maker acted on recommendation of project team
5. › Whether reliance negated by consultant's opinion that requirement was unreasonable
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Damages
4. › Wasted expenditure
5. › Whether cost of diverting permanent staff to failed project recoverable
6. › Whether loss may be measured by cost of permanent staff or only by cost of replacement staff
7. › Mitigation

Quick Take

Pre-contractual representations in a competitive tender process about the capabilities of a system to be supplied relate to the system to be delivered, not merely to the prototype demonstrated, and disclaimers about the need for further study are insufficient to withdraw such representations where the representor proceeds to contract. The cost of permanent staff diverted to a failed project is recoverable as wasted expenditure, measured either by the cost of replacement staff or the cost of the permanent staff while engaged on the project. Where a settlement sum from a co-defendant is to be set off against damages, the court may order that the sum first be reduced by the plaintiff's costs of pursuing the co-defendant.