RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd

[2017] VSCA 50

Victorian Court of Appeal

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Interrogate

Catchwords

1. Consumer Law
2. › Misleading or deceptive conduct
3. › Representations
4. › Whether contractual promises constitute representations
5. › Whether contractual warranty capable of grounding actionable misrepresentation
6. › Whether limitation of liability clause qualifies representations
7. › Trade Practices Act 1974 (Cth), ss 51A, 52
8. › Australian Consumer Law, ss 4, 18
1. Practice and Procedure
2. › Summary judgment
3. › Test for summary judgment
4. › No real prospect of success
5. › Whether claim should be dismissed summarily where authorities unsettled
6. › Civil Procedure Act 2010 (Vic), ss 62, 63
1. Practice and Procedure
2. › Leave to appeal
3. › Interlocutory orders
4. › Refusal of summary judgment
5. › Whether substantial injustice if decision stands
6. › Residual discretion to refuse leave
7. › Supreme Court Act 1986 (Vic), s 14C

Quick Take

A contractual provision may constitute a representation for the purposes of the TPA/ACL, but it may also be nothing more than the undertaking of an obligation, in which case there is no misleading conduct. Whether a contractual promise involves conduct capable of being misleading depends on all the circumstances, including the other terms of the contract. The presence of a limitation of liability clause may affect the content of any representation but does not necessarily preclude a TPA/ACL claim. Whether contractual promises can form actionable representations remains unsettled and is not suitable for determination by summary judgment.