Star v Buildcorp: A Triumph for Risk Allocation in ACL Claims

Lessons for Designers, Builders and Insurers

In addition to claims for breach or contract or alleged negligence, construction professionals are often routinely faced with claims for misleading or deceptive conduct. These claims add to the complexity of the litigation and serve to increase the level of jeopardy faced, in particular where they have the potential to negate the operation of any applicable contractual cap on liability.

The recent decision of The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd trading as “Buildcorp Interiors” [2026] NSWSC 27 (Rees J) (“Star v Buildcorp”) dealt with several issues, including misleading representations under section 18 and 29 of the Competition and Consumer Act 2010 (Cth) (Schedule 2 - Australian Consumer Law (“ACL”)). Interestingly, by virtue of the contractual matrix and contractual risk allocation position, the outcome in Star v Buildcorp differed substantially with the previous authoritative position in Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 (“Viterra”).

The decision in Star v Buildcorp:

• emphasises the need for builders to ensure that they adopt the appropriate contract form and risk allocation when contracting for a project, in particular where it is not intended that the builder will play any role in the design of that project;
• reaffirms the need for construction professionals to understand the consequences that their approvals or silence may have and to ensure that they address these through the appropriate scope exclusions or reservations; and
• provides a lesson for litigators to ensure that misleading or deceptive conduct claims are pursued under the correct mechanism within the ACL, especially where the claim involves parties with no contractual relationship serving a common principal.

Background

Contractual Relationships

The Star undertook three refurbishment projects at the Star Casino in Sydney. In doing so, The Star directly engaged:

1. Buildcorp, pursuant to a Construct Only contract, with a clause expressly excluding Buildcorp’s “Design Responsibility” (cl 3.4). Clause 3.4 read that:

Notwithstanding any other provision of this Contract, the parties acknowledge that:

(a)   the Contractor will perform Design Management for the duration of its appointment in respect of the Works; and

(b)   the Contractor will not have any Design Responsibility in connection with the Works.

Buildcorp was therefore not responsible for the design elements of the three projects;

2. Malone Buchan Laird & Bawden Pty Ltd trading as the Buchan Group (Buchan), as the architect; and
3. Various other consultants to conduct reviews of the design and construction phases for the three projects.

Buildcorp had no contractual relationship with the above contractors, including Buchan. The entities across the three projects had a mutual client, The Star, and they worked together to complete the required refurbishments.

Buildcorp subsequently engaged Ausrise Aluminium Pty Ltd (Ausrise) directly. Ausrise was engaged to supply and install aluminium composite panels (ACPs) across The Star’s three projects. Alpolic FR ACPs were installed on the external façade of the casino at several locations.

Proceedings

The Star commenced proceedings against Buildcorp alleging that the ACPs were non-compliant and claiming inter alia the costs of removing and replacing the allegedly non-compliant cladding.

In turn, and despite only having a contractual relationship with Ausrise, Buildcorp commenced a cross claim against Buchan and the various subcontractors engaged by The Star. In doing so, it alleged that the various contractors’ services (including Buchan’s) were misleading and deceptive pursuant to the ACL.

How the ACL Issues Arose in Each Case

In Star v Buildcorp, ACL issues primarily surfaced in the builder’s cross claim against Buchan (specifically concerning the architects’ sample approvals and shop‑drawing reviews) and were ultimately mediated by contractual risk allocation. Conversely, in Viterra, the Court of Appeal addressed whether parties could contract out of ACL liability for misleading or deceptive conduct (s 18) and held decisively that they cannot, despite sophisticated disclaimer regimes.

Star v Buildcorp

In late 2014, Buchan approved a colour sample and Ausrise’s shop drawings for Project 1.¹ Buildcorp alleged those approvals represented that Alpolic FR ACP was suitable for external walls, BCA‑compliant in standard/quality, and that Buchan’s design services delivered a BCA‑compliant design.² It said those representations were misleading under ACL section 29 (false or misleading representations about goods or services) and s 18 (misleading or deceptive conduct) because Alpolic FR did not satisfy Deemed-to-Satisfy, no Alternative Solution existed, and the installation conflicted with the For Construction drawings used for certification.³

The Court held section 29 to be inapplicable in a setting where the parties were simply “working together to provide goods or services to their mutual principle” with no bilateral “supply” to Buildcorp.⁴ Put differently, section 29 could not be relied upon by Buildcorp in circumstances where there was no contractual relationship between Buildcorp and Buchan and the “supply” of goods or services was to The Star (the mutual principal) and not to Buildcorp.

By contrast, section 18 was engaged as the Court would have found that Buchan’s sample colour sign‑off and shop‑drawing review conveyed an implied representation of suitability of Alpolic FR for external wall use as “to remain silent while disagreeing … was to provide tacit approval” ⁵.

Despite the position on section 18, The Star’s primary claim was against Buildcorp, and that claim failed because the Project 1 contract was Construct Only with a clause expressly excluding the builder’s “Design Responsibility” (cl 3.4). That meant Buildcorp was not liable to The Star for any design‑led non‑compliance, so there was no upstream liability to pass down to the architect via Buildcorp’s ACL cross‑claim. In short, the risk allocation blocked any liability shift to the architect.

Viterra

In Viterra, Cargill alleged it paid an inflated price for the Joe White Maltings business because Viterra’s conduct during the sale process misled it as to undisclosed practices underpinning the target’s financial performance.⁶ On appeal, the VSCA held that “no‑representation” clauses, “no‑reliance” clauses and exclusion/release clauses do not immunise a party from liability for s 18, because as a matter of public policy parties cannot contract out of the ACL’s remedial scheme (s 236).⁷  The court allowed substantial damages on the difference between price paid and true value, despite the sophisticated disclaimer regime.⁸

What this means for Construction Professionals?

Firstly, Star v Buildcorp illustrates that contract form (e.g., Construct Only with a “no Design Responsibility” clause) can decide who pays, even where the conduct concerns section 18, because warranties may be read subject to risk‑allocation. On the other hand, Viterra provides guidance that contract wording does not extinguish s 18 liability. Therefore, ACL exposure and contractual allocation are distinct levers that both require active management, and the outcome of any claim for misleading or deceptive conduct will depend on the circumstances of each case.

Further, in Star v Buildcorp, section 29 was a poor fit for architect–builder interactions because there was no “supply” to the builder. Additionally, consumer guarantees (e.g., s 54) fell away because the principal was not a “consumer” given the project spend. Instead, section 18 could capture approval conduct or silence (e.g., sample sign‑offs, shop‑drawing stamps) that objectively communicates a “green light” to proceed, depending on context and role expectations. As such, section 18 is the key tool for parties to limit their liability, making it paramount for designers and engineers to understand that approvals and silence can be section 18 “conduct” unless they state scope limits or compliance issues.

Lastly, Viterra finds that, notwithstanding liability caps, parties cannot contract out of section 18 (and the section 236 damages remedy). Accordingly, “no‑representation”, “no‑reliance” and exclusion clauses may form part of the factual matrix but do not negate liability if the conduct is otherwise misleading. Builders should not rely on no‑reliance wording to neutralise section 18 and should close out compliance sign‑offs before relying on approvals. Similarly, insurers should expect section 18 exposure notwithstanding disclaimers, and probe how the insured sets out, in writing, what can be relied on and what each approval includes or excludes.

¹ The Star Entertainment Sydney Properties Pty Ltd v Buildcorp Group Pty Ltd trading as “Buildcorp Interiors” [2026] NSWSC 27 [242].

2 Ibid.

3 Ibid [243].

4 Ibid [256].

5 Ibid [285].

6 Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 [11].

7 Ibid [499].

8 Ibid [13].