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The Uniting Church in Australia Property Trust (Victoria) v Ian Hartley Architects P/L (ACN 006 528 463); E J Lyons & Sons P/L (ACN 004 584 883) & Grant, Damien [2022] VSC 233

PRACTICE AND PROCEDURE, NEGLIGENCE, MISLEADING AND DECEPTIVE CONDUCT, PLEADING
Supreme Court of Victoria
Division: 
Commercial Court
Judge(s): 
Delany J
Parties: 

The Uniting Church in Australia Property Trust (Victoria) v Ian Hartley Architects P/L (ACN 006 528 463); E J Lyons & Sons P/L (ACN 004 584 883) & Grant, Damien

Judgment Date: 
12 May 2022
Catchwords: 

PRACTICE AND PROCEDURE - Strikeout application - No proper basis for the causes of action alleged - Civil Procedure Act 2010 (Vic), s 18 - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 13.10(3) and 23.02 - Wheelahan v City of Casey (No 12) [2013] VSC 316, Sidgreaves v State of NSW (No 2) [2021] NSWSC 934, referred to.

NEGLIGENCE - Duty of care - Novel duty - Negligent advice - Whether employee engineer owed a duty to avoid economic harm to building owner - Owner contracted with architects and with builder - No contract between owner and engineer's employer - Engineer's employer sub-consultant to architect - Written advice to architect by engineer on behalf of employer - No material facts alleged in support of allegation the engineer knew or ought to have known the owner would rely on the advice - Salient factors - Owner not vulnerable - No particulars of reliance - Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited (2012) 202 FCR 158, Barclay v Penberthy (2012) 246 CLR 258, distinguished - Perre v Apand Pty Ltd (1999) 198 CLR 180, Brookfield Multiplex v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185, Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, Ku-ring-gai Council v Chan (No 2) [2018] NSWCA 73, Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, Brickhill v Cooke [1984] 3 NSWLR 396, referred to.

MISLEADING AND DECEPTIVE CONDUCT - Direct claim against employee when accessorial liability the only potential basis of claim - Failure to distinguish between representation of fact and representation of opinion - Fair Trading Act 1999 (Vic), ss 6, 9, and 159(1) - Houghton v Arms (2006) 225 CLR 553, distinguished - Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1, applied - Yorke v Lucas (1985) 158 CLR 661, Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658, referred to.

PLEADING - Reliance and causation - No material facts pleaded - Claim against employee engineer struck out - Not to be repleaded unless and until plaintiff able to show a sound basis to support proposed claims - Environinvest Ltd v Pescott & Ors [2011] VSC 325 applied - Reichel v Paulyn Investments Pty Ltd [2008] VSC 413, referred to.

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