Justice Anderson draws adverse inference
Justice Anderson ruled Perth Airport breached section 18 of Australian Consumer Law by misleading United Petroleum about the timing of Qantas's terminal relocation.
In United Petroleum Pty Ltd v Perth Airport Pty Ltd (No 2) [2026] FCA 620, Anderson J found that Perth Airport Pty Ltd (PAPL) conveyed misleading representations to United Petroleum in tender materials issued in July 2017 and at a 27 February 2018 meeting. The representations concerned Qantas Airways relocating its domestic and international operations from Airport West to Airport Central by 2025, or alternatively by the mid to late 2020s.
The dispute centred on an information brochure that told tenderers Qantas was expected to relocate in the mid to late 2020s, with traffic volumes on Airport Drive forecast to almost double from 40,000 to 78,000 vehicles per day. United tendered for the site, signed an agreement for sublease in April 2019, and built a flagship Millennium Concept service station at an agreed construction cost of $7,721,182.76, paying $900,000 per annum in rent.
Anderson J rejected PAPL's argument that disclaimers in the separate request for proposals neutralised the brochure's representations, finding the disclaimers lacked prominence because they sat in the legal-framework document rather than the promotional brochure. Citing Butcher v Lachlan Elder Realty, the court held that no reasonable inquiry could have disabused United of the belief the brochure created.
The court also accepted evidence from former United CEO Gary Brinkworth that PAPL's then Chief Commercial Officer Steve Holden told him at the February 2018 meeting that the Qantas relocation would occur by 2025.
PAPL's defence under section 4(2) of the ACL on reasonable grounds collapsed. Anderson J found PAPL did not call any board member or the senior personnel actually involved in the commercial negotiations with Qantas, including its former chair Neville Power, then CEO Kevin Brown, and then CFO Brian Pereira. Applying Jones v Dunkel and Blatch v Archer, the court drew adverse inferences. The Qantas heads of agreement and development agreement only required best endeavours to achieve consolidation on commercial terms still to be agreed – and those terms remained unagreed throughout the relevant period.
Contemporaneous documents showed Qantas had refused to give PAPL a binding commitment to relocate by 2025. Internal notes from a March 2019 meeting recorded that Qantas would not have signed the heads of agreement had it known PAPL's pricing position. PAPL had also commenced proceedings against Qantas in the WA Supreme Court in December 2018, in which the useful life of the Airport West terminals was in issue.
Anderson J rejected United's misleading-by-silence claim and found the representations lapsed when the agreement for sublease executed. However, the court accepted United's alternative transaction case: but for the representations, United would have leased the smaller Site 1 for $500,000 per annum and built the cheaper Cheltenham-style service station.
United recovered two heads of damage – the difference in rent across the 15-year term, and $2,649,381.99 in excess construction costs. The parties must submit proposed minutes of orders by 20 July 2026.
