Where did my airplanes go? Federal Court finds against Perth Airport Pty Ltd for misleading conduct.

The judgment of Anderson J in United Petroleum Pty Ltd v  Perth Airport Pty Ltd (No 2) [2026] FCA 620 has provided a recent and detailed account of the law of misleading and deceptive conduct which reiterates the inability for a contravening party to contract out of contravention in any manner.

The Federal Court’s decision is another critical reminder of Australia’s strong consumer protection laws that extend to prohibiting what can arguably be described as overselling in regular commercial tender practices, which prove difficult, if not impossible, for any subsequent contract to absolve.

The misleading and deceptive conduct claim

United Petroleum Pty Ltd and its related entity United Petroleum Australia Pty Ltd (collectively, United) brought proceedings against Perth Airport Pty Ltd (PAPL) for damages resulting from PAPL’s allegedly misleading or deceptive conduct in contravention of s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the ACL).

The basis of the damages sought by United was that if it were not for PAPL’s misleading and deceptive conduct it would have negotiated for more favourable terms before entering into an agreement to sublease and develop, and a subsequent sublease agreement, a service station on Airport Drive at Perth Airport (the Site).¹  This was put by United as an “alternative transaction” case.²

The misleading and deceptive conduct in question was PAPL’s representations in various manners that Qantas Airways Ltd (Qantas) will relocate all its domestic and international terminals from Airport West, being terminals 3 and 4, to Airport Central of Perth Airport (the Qantas Relocation).³

The allegation went further to include that PAPL had represented that the Qantas Relocation would result in traffic volumes almost doubling along Airport Drive, a road abutting the Site.⁴

United further alleged that PAPL engaged in misrepresentation by silence,⁵ however, that is not of importance for the current discussion and was ultimately dismissed.⁶

It was contended by United that the Qantas Relocation and consequent increase in traffic volume was predominantly conveyed in an information brochure (the Information Brochure), which was provided to United on 6 July 2017 alongside a request for proposals document (the RFP) prior to entering into the agreement to sublease and develop the Site.⁷

Importantly, the Information Brochure contained, and United significantly relied upon in support of its claim, the following:

• a statement that the ‘Qantas Group is expected to relocate all international and domestic flights from Terminal 3 and Terminal 4, located at Airport West, to Airport Central in the mid to late 2020’s completing the consolidation of commercial air services in Airport Central’;⁸ and
• a table detailing that traffic volume will increase from approximately 40,000 vehicles per day to 78,000 vehicles per day upon the completion of the Qantas Relocation.⁹

PAPL defended United’s claim on multiple grounds.¹⁰ Interestingly, PAPL referred to the ‘tenderers obligations’¹¹ found in the RFP to assert that United could not rely upon any of the statements contained in the Information Brochure.  The ‘tenderers obligations’ effectively provided a disclaimer that United ought to conduct its own enquiries into the matters referred to within the Information Brochure and what would eventually be the subject of the agreement to sublease.

Interplay between disclaimers and the ACL

Before delving into the critical issues, Anderson J referred to the oft-cited decision in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd ¹² to establish the general principles and considerations when deciding whether or not a claim under s 18 of the ACL has been properly made out.

Relevantly, when considering whether the impugned conduct was misleading or deceptive, it must be considered in the immediate context, such as the words in the relevant document or other communication, and the broader context of the relevant surrounding facts and circumstances.¹³ Such context necessarily including any disclaimers.¹⁴

However, the decision of Anderson J made it clear that it is unequivocal in Australian law and for the purposes of the ACL that contractual terms requiring a party to make its own enquiries, such as disclaimer, ‘does not have the effect, necessarily, of absolving a party of liability for misleading and deceptive conduct’.¹⁵

This has been worded otherwise, and was quoted by Anderson J,¹⁶ as that succinctly put by McHugh J in Butcher as:¹⁷

• If misleading conduct has induced a contract, that fact cannot be negated by the mere circumstance that there is a statement to the contrary.

As PAPL’s disclaimer provided that United is to make its own enquiries into the veracity of representations made to it, the Court turned its mind to what, if any, enquiries United could have undertaken and ultimately found ‘that in the circumstances there was no reasonable inquiry or investigation which United could have conducted to disabuse itself of the belief which the Information Brochure caused it to adopt.’¹⁸

The Court expanded on that point by stating that PAPL’s disclaimer was a term that ‘should be understood as “a standard form clause by which the plaintiff acknowledge[s] that they have made their own enquiries and relied on their own enquiries”,¹⁹ but does not mean United was unable to rely on the accuracy of information provided to it by PAPL in the Information Brochure.’²⁰

In light of the above, the Court concluded that PAPL did in fact make the representation to United in respect of the Qantas Relocation by way of the Information Brochure.²¹

The Federal Court’s decision

Overall, United’s claim against PAPL was successful with the Court finding that PAPL had no reasonable grounds to make the representations in question²² and United materially relied upon United’s representations to enter into the agreement to sublease on the terms and conditions that it did.²³

What followed was the Court accepting United’s submissions on the assessment of loss and damage plead as an “alternative transaction” case. This was particularised as the difference between the rent United would have negotiated under the alternative transaction and the rent United was actually obligated to pay plus the difference in the capital expenditure between the same, being the excess cost to construct on the Site.²⁴

Implications

Whilst disclaimers can be a useful tool in relation to the effect and interpretation of contracts, it necessarily provides for its intended purpose most accordingly in the law of contract and does little work for the purposes of the law under the ACL.

The decision is another example of the Court’s continuous reminder that a cautious approach is appropriate in all pre-contractual conduct and communications as aggrieved parties will not be dissuaded from making a claim pursuant to the ACL merely because the contract appears to say otherwise.

Thanks to solicitor Harrison France for his research and contribution to this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

[1] United Petroleum Pty Ltd v  Perth Airport Pty Ltd (No 2) [2026] FCA 620, [2] (United).

[2] Ibid [557]-[559].

[3] Ibid [3] and [38](a)-(b).

[4] Ibid [38](a)-(b).

[5] Ibid [4] and [38](f).

[6] Ibid [521] generally on the basis that s 18 of the ACL does not impose a positive duty to inform or volunteer information to the party alleging contravention and that each party was commercially sophisticated, dealing at arm’s length, and of equal bargaining power.  See in particular United (n 1) [518]-[519] and [523].

[7] Ibid [20]-[22].

[8] Ibid [195] and [352].

[9] Ibid [201] and [353].

[10] For example, a denial that the Information Brochure communicated any certainty or definitiveness in relation to the Qantas Relocation, see ibid [368]-[369] in response to United’s submissions on the same point outlined from [359] to [363].

[11] See United (n 1) [371] for a detailed account of the relevant clauses PAPL referred to in submissions.

[12] (2023) 277 CLR 186, 225 [80]-[81] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).

[13] United (n 1) [341] citing ibid [82] and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301, 322-323 [74] (Perram J, Allsop CJ agreeing at [1] and Markovic J agreeing at [169]).

[14] United (n 1) [343] citing Butcher v Lachlan Elder Realty Pty Ltd (2004)  218 CLR 592, 605 [39] (Gleeson CJ, Hayne and Heydon JJ) (Butcher) and Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, 320 [29] (French CJ).

[15] United (n 1) [391].  No particular case is cited in support by Anderson J, so, see generally for commentary on this point Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154, [112] (Meagher JA, with whom Beazley P and Ward JA agreed); Hanjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546, 561 (Lockhart J, with whom Burchett J agreed and Foster relevantly agreed) referring to s 52 of the Trade Practices Act 1974 (Cth), the predecessor of s 18 of the ACL.

[16] United (n 1) [391].

[17] Butcher (n 14) 640-641 [158] referring to Bowler v Hilda Pty Ltd (1998) 80 FCR 191, 207 (Heerey J) and Burg Design Pty Ltd v Wolki (1999) 162 ALR 639, 648-650 (Burchett J).

[18] United (n 1) [391]

[19] Employing the words of Cavanagh J in QVB Pharmacy Pty Ltd v Le [2022] NSWSC 1612, [96](12).

[20] United (n 1) [391].

[21] Ibid [436]-[437].

[22] Ibid [512].

[23] Ibid [549]-[551].

[24] Ibid [557]-[559] and [609]-[612].