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Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 3)

 

[2018] QSC 60

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 3) [2018] QSC 60

PARTIES:

CIVIL MINING & CONSTRUCTION PTY LTD

(ABN 18 102 557 175)
(plaintiff)

v

WIGGINS ISLAND COAL EXPORT TERMINAL PTY LTD (ABN 20 131 210 038)

(defendant)

FILE NO/S:

No BS 6050 of 2013

DIVISION:

Trial

PROCEEDING:

Trial 

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 March 2018

DELIVERED AT:

Brisbane

HEARING DATES:

28 July, 21 August and 14 December 2017

Further Written Submissions 22 January, 12 February and 19 February 2018

JUDGE:

Flanagan J

ORDERS:

CMC’s Claim:

1. Judgment for CMC against WICET in the sum of $3,562,586.38 plus GST in the amount of $356,258.65 together with interest as follows:

(a) Earthworks Claim – interest on $1,549,509.00 pursuant to section 67P of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) from 2 January 2013 to the date of payment;

(b) Piling Claim – interest on $262,575.00 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;

(c) Bebo Arch Claim – interest on $822,479.75 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;

(d) Environmental Management Claim – interest on $69,746.05 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;

(e) Geolon 600 Claim – interest on $219,018.00 pursuant to section 67P of the QBCC Act from 8 June 2012 to the date of payment;

(f) Piling Hammer Claim – interest on $639,258.58 pursuant to section 58 of the Civil Proceedings Act from 14 January 2015 to the date of judgment.

2. The payment by WICET of GST in the amount of $356,258.65 is conditional on CMC issuing a valid tax invoice.

3. Order that WICET return to CMC ANZ Bank Guarantee Number DG 79323115 within seven days from the date of judgment.

WICET’s Counterclaim:

1. Judgment for WICET against CMC in the sum of $2,936,844.61 together with interest as follows:

(a) Final Certificate – interest on $1,782,162.01 pursuant to section 58 of the Civil Proceedings Act from 15 May 2014 to the date of judgment;

(b) Delay Claim – interest on $1,154,682.60   pursuant to section 58 of the Civil Proceedings Act from 20 April 2013 to the date of judgment.

I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – DETERMINATION OF COSTS – QUANTIFICATION OF DELAY CLAIM – where the parties had identified on-Site overheads by reference to an Overheads Spreadsheet – where the plaintiff sought to depart from the Overheads Spreadsheet – where the plaintiff sought leave to re-open its case to lead expert evidence as to the quantification of the delay claim – where on subsequent appeal the Court of Appeal set aside the grant of leave to re-open – the effect of the decision of the Court of Appeal on the quantification of the delay claim

INTEREST – RECOVERABILITY OF INTEREST – AWARD OF INTEREST ON DEBTS AND SUMS CERTAIN – INTEREST ON MONEYS SECURED BY BANK GUARANTEE – MONEY – GENERALLY AND WHAT CONSTITUTES – whether interest was payable on moneys secured by bank guarantee pursuant to section 58 of the Civil Proceedings Act 2011 (Qld) – the meaning of ‘money’ in section 58 – the purpose of an award of interest

INTEREST – RECOVERABILITY OF INTEREST – AWARD OF INTEREST AS DAMAGES – IN QUEENSLAND – where the Court had previously held interest to be payable under section 67P of the Queensland Building and Construction Commission Act 1991 (Qld) – whether section 67P provided for ‘penalty interest’, entitling the plaintiff not only to interest under the QBCC Act, but also contractually agreed interest – the meaning of ‘penalty rate’ in section 67P

INTEREST – RATE OF INTEREST – RATE IN OTHER CASES – where the parties had agreed the plaintiff was entitled to interest under the Contract – where the defendant later submitted that neither the contractual rate of interest, nor the statutory rate of interest under the QBCC Act, was applicable – whether the plaintiff’s claims were more accurately characterised as claims for unliquidated damages, or as moneys owed under the Contract – whether, if a determination of a court or arbitrator results in an adjustment of a claimed sum, interest accrues retrospectively or only from the date of the determination – the effect of certification of a claim under the Contract

Civil Proceedings Act 2011 (Qld), s 58, s 59

Building and Construction Industry Payments Act 2004 (Qld), s 12, s 13

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 67A, s 67P

Bulk Materials (Coal Handling) Pty Ltd v Compressed Air & Packaging Systems (NSW) Pty Ltd (1997) 14 BCL 109, distinguished

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85, considered

Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 2) [2017] QSC 218, considered

Daysea Pty Ltd v Watpac Australia Pty Ltd (2001) 17 BCL 434; [2001] QCA 49, cited

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (2013) 41 VR 636; [2013] VSCA 179, cited

Gambaro Pty Ltd as Trustee for the Gambaro Holdings Trust v Rohrig (Qld) Pty Ltd; Rohrig (Qld) Pty Ltd v Gambaro Pty Ltd [2017] 1 Qd R 104; [2015] QCA 288, cited

Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors  (2010) 26 BCL 130; [2008] QSC 58, applied

Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2017] QSC 219, cited

Peet v Richmond (No 2) (2009) 76 ATR 644; [2009] VSC 585, cited

Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) (2012) 287 ALR 360; [2012] WASCA 53, distinguished

SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119, cited

St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd  (2013) 29 BCL 476; [2013] NSWCA 104, distinguished

Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd [2017] QCA 296, applied

Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2015] QSC 309, distinguished

COUNSEL:

B O’Donnell QC with SJ Webster for the plaintiff

D Kelly QC with MG Lyons for the defendant

SOLICITORS:

Thomson Geer for the plaintiff

Corrs Chambers Westgarth for the defendant

  1. The Court delivered Reasons in this matter on 19 May 2017 (the “May Reasons”).[1]  As a number of issues remained outstanding the Court could not give judgment.
  2. On 25 May 2017 directions were made for the filing and serving of written submissions in relation to:
  1. the quantification of the Delay Claim and the defendant’s counterclaim in respect of the Delay Claim;
  1. the return of the Bank Guarantee;
  1. the quantification of payments to be made in relation to the Final Certificate; and
  1. interest.
  1. The parties’ written submissions not only addressed these four matters but further additional matters concerning quantum and GST.

Quantification of the Delay Claim

(a) Subsequent proceedings

  1. On 21 August 2017 CMC sought and was subsequently granted leave to re-open its case to call expert evidence in respect of the quantification of the Delay Claim based on evidence that had already been tendered or given at trial.[2]
  2. WICET appealed this order.  The proceedings were stayed pending this appeal.  On 4 December 2017 the Court of Appeal allowed the appeal and set aside the order granting leave to CMC to re-open its case.  WICET, in its notice of appeal, sought a further order in these terms:

“The proceedings … be remitted to the Honourable trial judge to deliver reasons on the quantification of the respondent’s delay claim in accordance with [1069.5] of his Honour’s reasons delivered on 19 May 2017 by quantifying the delay claim using Exhibit 427 as recalculated by the parties to reflect the use of the respondent’s quantum expert’s reasonable rates and incorporating a weighted average.”

  1. The Court of Appeal refused to make this order.  Had this order been made the parties agree that CMC’s entitlement to on-Site overheads would be $2,418,546.03.  As WICET has already paid CMC $4,087,233.21 in respect of the Delay Claim, WICET would be entitled on its counterclaim to an amount of $1,668,687.18.
  2. McMurdo JA (with whom Fraser and Gotterson JJA agreed) in refusing to make this order stated:

“I am not persuaded that such an order should be made.  It would provide that a certain amount be recalculated by ‘the parties’, which assumes a concurrence between them which is now unlikely.  It is true that after the May Reasons, there was a recalculation undertaken by CMC with which WICET agreed.  However, as I have noted at [53], there were some clerical errors in the Overhead Spreadsheet.  There may or may not be consensus as to the way in which, if at all, they affect the use of Mr Roberts’ rates.  Should there be an issue of that kind, it would be a matter for argument and not evidence.  And it should be resolved by the judge consistently with his Honour’s findings and conclusions in the May Reasons, including what I see as his acceptance at [835] that ‘Mr Roberts’ report contains information permitting an assessment of CMC’s on-Site overheads post 30 August 2012.’”[3]

  1. The “clerical errors” in the Overheads Spreadsheet referred to by McMurdo JA need to be understood in the context of [51]-[54] of his Honour’s reasons:

“[51] The resources which constituted the on-Site overheads were evidenced by the Overheads Spreadsheet. This document was initially prepared by CMC and, after some changes had been made by another consultant, it was briefed to Mr Roberts, who made some adjustments after reviewing it. The document, as adjusted by Mr Roberts, was accepted by Mr Tsipis. There was no controversy about its content and that it incorporated all of the relevant contributors to CMC’s on-Site overheads. Moreover, as the judge held in the October Reasons, the document had been effectively incorporated into CMC’s pleading.

[52] CMC’s case, as presented to the judge after the May Reasons, departs from the common ground of the Overheads Spreadsheet. As the judge said in his October Reasons, there was a question of “whether CMC should continue to be bound by the resources identified in the Overheads Spreadsheet.”

[53] In its written submissions dated 5 July 2017, WICET did agree that there were some omissions from the Spreadsheet. It conceded that there were particular instances where contemporaneous documents (ie. timesheets, daily costing sheets or meeting minutes) recorded a person working on-site on a particular day, but where that resource has not been included in the Spreadsheet. These were simply adjustments to correct clerical errors in the Spreadsheet. By conceding them, WICET did not agree to a different meaning to be given to the expression “on-Site overheads”, than that from which the Spreadsheet had been prepared.

[54] It is the adoption of a different concept of on-Site overheads that would require further evidence. No witness at the trial explained why, for example, the cost of employing someone who was working off-site should be relevant. And if this new case were permitted, it would be likely to require new evidence going beyond opinion evidence. As WICET submits (as it did to his Honour), it would be necessary to explore the facts and circumstances of resources which were employed off-site, such as what was done by an employee on any day when he or she was working elsewhere. In my view, the judge erred in thinking that the further evidence could be confined to expert evidence.”

  1. Subsequent to the decision of the Court of Appeal the matter was mentioned before me on 14 December 2017.  Directions were made with a view to progressing the quantification of the Delay Claim having regard to the Reasons of the Court of Appeal.  This included a direction sought by CMC, with the consent of WICET, for the filing and serving of written submissions, limited to two pages, as to the effect (if any) the decision of the Court of Appeal has upon the quantification of the Delay Claim.  Directions were also made for the identification of each error or omission in the Overheads Spreadsheet which CMC contends should be allowed for in any re-calculation of Exhibit 427.

(b) The effect of the Court of Appeal decision

  1. CMC submits that neither the orders, nor the Reasons of the Court of Appeal otherwise constrain this Court’s determination of the valuation of the Delay Claim and that the Court should quantify the Delay Claim in accordance with CMC’s “Revised Valuation”.[4]  This valuation arrives at a daily rate of $27,428.23 for each of the 208 days delay, totalling $5,705,071.54. 
  2. It is necessary to understand the basis of CMC’s Revised Valuation.  The Revised Valuation is not arrived at by reference to the Overheads Spreadsheet, upon which both the quantum experts (Mr Roberts and Mr Tsipis) based their assessments of the Delay Claim.  According to CMC, the Overheads Spreadsheet is unsuitable for use in valuing CMC’s on-Site overheads at the end of the Project.[5]  The daily rate of $27,428.23 is arrived at by:
  1. identifying CMC’s on-Site personnel and facilities during the period from 31 August 2012 to 26 March 2013; and
  1. taking into account that certain staff departed the Project over the course of that period, adding up the reasonable daily rates for the relevant staff positions and facilities to arrive at an overall reasonable daily rate.

This exercise, according to CMC, can be undertaken from the business records of CMC that were tendered into evidence during the trial.[6]

  1. CMC submits that the orders made by the Court of Appeal, namely:
  1.  allow the appeal; and
  1.  set aside the orders granting leave to the respondent to re-open its case,

simply disposed of CMC’s application to re-open, such that the Reasons of the Court of Appeal do not give rise to a relevant issue estoppel which precludes this Court from considering the Revised Valuation.  According to CMC, this Court should proceed to consider the Revised Valuation on its merits because the Court of Appeal’s decision does not decide that, absent an application to re-open, this Court cannot consider CMC’s submissions on the Revised Valuation.[7]

  1. I do not accept these contentions.  In my view, the decision of the Court of Appeal both informs and determines the approach this Court must adopt in quantifying the Delay Claim.  McMurdo JA, having noted that this Court had held, in the October Reasons, that the Overheads Spreadsheet had been effectively incorporated into CMC’s pleading,[8] considered that it was an error to permit CMC to depart from its pleaded case.[9]  As observed by McMurdo JA, the Revised Valuation “departs from the common ground of the Overheads Spreadsheet”.[10]  The reasoning of McMurdo JA does not permit this Court to value the Delay Claim by reference to the Revised Valuation, as this would permit CMC to depart from its pleaded case.  Further, McMurdo JA considered that the Revised Valuation involved the adoption of a “different concept” of on-Site overheads which would require new evidence.[11]
  2. Although the Court of Appeal did not make any order that some outstanding question be remitted to this Court to be determined in accordance with the Court of Appeal’s Reasons, the Court did determine that, subject to correction of “clerical errors”, the Delay Claim should be valued consistently with this Court’s findings and conclusions in the May Reasons.[12]  Importantly, this determination was made in the context of the Court of Appeal considering the order sought by WICET referred to in [5]-[7] above.  Had the Court of Appeal made this order, this Court would not have been required to further consider any alleged “clerical errors” in the identification of on-Site resources.  The context in which this determination was made informs the limited exercise which is to be undertaken by this Court in valuing the Delay Claim.  That task is limited to determining whether the omission of a resource constitutes a “clerical error”.  The “clerical error” must be of such a nature as to permit a finding (including a finding arising from proper inferences) that the resource was an on-Site resource but was erroneously omitted.  Further, any finding must be based on evidence already presented and tendered in the course of the trial.

(c) Annexure B of CMC’s Supplementary Submissions

  1. It is convenient at this stage to deal with Annexure B of CMC’s Supplementary Submissions (Post-Appeal).  Annexure B seeks to capture numerous activities and items which CMC had a contractual or practical obligation to maintain on-Site for the additional 208 days delay.  They include such things as ongoing environmental management, various maintenance costs and the extension of site-related insurances.
  2. None of these activities or items are captured at all in the Overheads Spreadsheet, nor were they sought to be previously included by CMC in the Revised Valuation.  CMC accepts that the complete omission of these activities and items does not appear to have been the kind of omission contemplated in the Court of Appeal’s Reasons.  CMC also accepts that the proper valuation of these activities and items is not possible in the absence of expert evidence, which cannot now be led.  CMC has not therefore included these items in its schedule of errors and omissions.  CMC nevertheless submits that these activities and items should not simply be ignored by the Court.  There has never been a suggestion from WICET that CMC materially defaulted in compliance with any relevant obligation and there is evidence that CMC incurred costs in relation to these obligations.  CMC therefore seeks a daily uplift of $6,800 per day, representing a reasonable value for these activities. 
  3. WICET, correctly in my view, submits that CMC’s claim in Annexure B should be rejected.  None of these activities or items were addressed by Mr Roberts.  Further as submitted by WICET, this claim:
  1. has not been pleaded;
  1. involves a departure from the concept of “on-Site overheads” such that evidence is required; and
  1. is inconsistent with the May Reasons (and the reasoning of the Court of Appeal) including the acceptance that Mr Roberts’ report contains information permitting an assessment of the Delay Claim.[13]
  1. The present exercise should be limited to determining “clerical errors” in the identification of on-Site resources, which determination does not require further evidence or a different concept of on-Site overheads.

(d) Clerical errors

  1. CMC has identified 41 alleged errors and omissions in the Overheads Spreadsheet.  CMC’s recalculation of Exhibit 427 arrives at a weighted average of $18,441.13, which results in the quantification of the Delay Claim in the amount of $3,835,755.  Exhibit 427 is calculated by reference to seven Delay Events.[14] 
  2. The errors identified by CMC are limited to four categories:
  1. the omission of specific personnel who were not recorded as working on relevant days despite evidence they were working on-Site at that time (18 errors);
  1. errors in the rates applied to certain personnel who are included in the Overheads Spreadsheet (11 errors);
  1. the omission of an allowance for vehicle costs for staff (one error);
  1. errors and omissions in the plant and related items included in the Overheads Spreadsheet (11 errors).[15]
  1. WICET accepts seven of the errors identified by CMC[16] and partly accepts a further eight errors.[17]  Generally, WICET has only agreed errors where CMC is able to identify and rely on specific contemporaneous documents such as daily costing sheets, timesheets and meeting minutes, or where the omission of facilities was an obvious error.  WICET does not accept any of CMC’s identified errors in respect of applicable rates to certain personnel who are included in the Overheads Spreadsheet, nor in respect of an allowance for motor vehicle costs.  WICET’s recalculation of Exhibit 427 has a weighted daily rate of $12,789.01 leading to the quantification of the Delay Claim in the amount of $2,660,114.76.  There is a $1,175,640 difference in the parties’ positions.  It is therefore necessary to consider the evidence in relation to each item said to constitute an error other than the seven which have been agreed.
  2. In addition to the 41 errors identified by CMC, WICET asserts that there is a further error in Mr Roberts’ report.  WICET alleges that Mr Roberts mistakenly quantified facilities in Delay Event 9a over a period of 37 days, in circumstances where the duration of the delay is 36 days.  Exhibit 427 notes the duration of Delay Event 9a as being 35 days.  This alleged error is Item 29A in CMC’s Schedule of Errors and Omissions in Overheads Spreadsheet.  Mr Roberts did not, however, value Delay Event 9(a) over a period of 37 days.  As submitted by CMC, this would have produced a total valuation for facilities of $32,837.50.  I accept that the number “37” written by Mr Roberts is simply a typographical error.  The amount of $888.13 should not therefore be added to Delay Event 9a for Item 29A.

Item 1

  1. The issue is whether Mr Roberts erroneously omitted Manish Pancholi from the Overheads Spreadsheet as working on-Site for three days (31 October, 2 November and 4 November 2012).  At the relevant time, Mr Pancholi was the Project Manager.  There is no dispute that the reasonable rate to be applied to him as the Project Manager is $1,820 per day which would result in an adjustment to Exhibit 427 for Delay Event 9d of $5,460.
  2. Mr Pancholi has been valued by Mr Roberts as an on-Site overhead where there are timesheets evidencing that fact.  There are no timesheets for the three days claimed by CMC.  CMC for each additional day claimed relies on documents signed and dated by Mr Pancholi.  The first is a letter dated 31 October 2012, which attaches a supplementary construction program for the Beales Creek Bridge and Bebo Arch Structures.  The second is a document cover sheet concerning the monitoring of the Stage 1 overland conveyor surcharge which has been signed by Mr Pancholi on 2 November 2012.  The third document is a timesheet of another employee, Alanna Hughes, signed and dated by Mr Pancholi on 4 November 2012.  CMC submits that it is a fair inference that Mr Pancholi signed and dated these documents on-Site, particularly given that as Project Manager it is likely that he was on-Site full time. 
  3. WICET submits that the three documents do not establish that Mr Roberts made a clerical error.  According to WICET, the documents do not permit of an inference that Mr Pancholi was working on-Site on those days, nor for the entirety of those days.  In particular there may be other explanations as to how Mr Pancholi came to sign the documentation.  Further, there is no evidence which explains why, if Mr Pancholi worked on-Site on the dates claimed, there are no contemporaneous timesheets. 
  4. As to the absence of timesheets, CMC asserts that there may be several possible explanations, including an omission on the part of Mr Pancholi to fill one out, or it may not have been included in the documents tendered at trial.
  5. The inference sought by CMC should not be drawn.  Although the signing and dating of documents on the relevant days by Mr Pancholi lends some support to the drawing of the inference that he was on-Site, the absence of timesheets for these days in circumstances where Mr Pancholi has completed timesheets for all other days, does not permit the inference to be drawn.  Further evidence would be required to establish the fact.  Mr Pancholi was not questioned whether he was on-Site on those three days, nor was any explanation sought from him as to why, unlike the other days, there are no timesheets.

Item 2

  1. This item concerns Gareth Baines, who was the interim Project Manager while Manish Pancholi was on leave for his wedding.  CMC seeks an adjustment to Exhibit 427 to add five days at the rate of $1,820 per day for Delay Event 9d ($9,100) and 11 days for Delay Event 9e ($20,020).  This item is different to Item 1 in that the Overheads Spreadsheet omits Mr Baines entirely. 
  2. WICET concedes that Mr Baines was on-Site for one day, namely 28 November 2012.  This concession is based on the Meeting minutes of that day recording Mr Baines as attending a Contract Progress Meeting.[18]
  3. In my view, a reasonable inference may be drawn that Mr Baines was on-Site for the days claimed by CMC.  First, Mr Baines took over Manish Pancholi’s position and role as Project Manager while Mr Pancholi was away on leave.[19]  Secondly, the nature of the Project Manager job was that it was an on-Site role.[20]  Thirdly, CMC has identified a number of letters signed by Mr Baines on 4 December, 12 December, 14 December and 21 December 2012 which lend some support to the drawing of the inference that he was onSite while undertaking the role of Project Manager.[21]  Fourthly, while the Meeting minutes of 12 December 2012 record Mr Baines as an apology, two other CMC employees, Greg Freeman and Sandro Lombardis are also recorded as an apology but are included as working on that day in the Overheads Spreadsheet.[22]  Fifthly, the fact that Mr Baines has been omitted entirely from the Overheads Spreadsheet supports his omission as constituting a clerical error.

Items 3 and 22

  1. These items relate to Alanna Hughes.  Item 3 concerns the number of days that Ms Hughes has been omitted from the Overheads Spreadsheet and Item 22 concerns the daily rate which should apply.  This item is partly agreed to the extent of an additional 44.5 days for Ms Hughes.
  2. By reference to timesheets in evidence CMC initially sought an additional 51.5 days for Ms Hughes.  CMC accepts an arithmetical error identified by WICET resulting in Ms Hughes having been omitted for 49.5 days.  WICET also correctly submits that Mr Roberts did include Ms Hughes for the period 20 November to 24 November 2012 which results in a further reduction of five days to 44.5 days.  CMC however asserts that the relevant period should be 12 November to 16 November 2012.  While Ms Hughes is not recorded as working between these dates in the Overheads Spreadsheet, CMC’s Cost Transaction Report for Staff Salaries[23] shows that she was paid $2,681.28 for working during this period.  There are however no timesheets to support this claim for the five days between 12 to 16 November 2012 in circumstances where timesheets are otherwise available.  As to why Ms Hughes is recorded in the Cost Transaction Report period 12 November 2012 to 16 November 2012 where there are no supporting timesheets has not been the subject of any evidence at trial.  In the absence of such evidence I am not satisfied that a clerical error has been established in respect of these five days. 
  3. As to Item 22, the issue is whether Mr Roberts made a clerical error in ascribing a daily rate to Ms Hughes of $730 for “Document Control” as opposed to a daily rate of $970 for the role of “Contracts Administrator”.  CMC relies on the Organisational Charts contained in CMC’s Monthly Reports for August-November 2012 in which Ms Hughes is classified as a “Contracts Administrator”.[24]  The difficulty with relying on the Organisational Charts is that Ms Hughes’ timesheets between September and mid-December 2012 record her role as “Casual Document Controller/Administrator”.  Subsequent to 18 December 2012 Ms Hughes’ role is referred to in the timesheets as “Administrator”.  She has not however circled “Yes” in response to the question whether there has been a change in her role.[25]
  4. CMC, by reference to the Organisational Charts, submits that it is clear that Ms Hughes’ title and position on the charts (being at the same level as Lana Both and Jo Smith who were Contracts Administrators and above Surabhi Pancholi who held the position of Administration/Document Control) evidences Ms Hughes’ role as a Contracts Administrator.  When regard is had to Ms Hughes’ timesheets, however, I am not satisfied that a clerical error has been established. 
  5. Exhibit 427 should be adjusted in respect of Item 3 as follows:

Delay Event 9d 7 days x $730  = $5,110

Delay Event 9e 34 days x $730  = $24,820

Delay Event 10 15 days x $730  = $10,950

Delay Event 11 3.5 days x $730  = $2,555

Item 4

  1. CMC submits that the Overheads Spreadsheet omits Surabhi Pancholi as working on 20 days.  Ms Pancholi has been valued by Mr Roberts as an on-Site Overhead where there are timesheets evidencing that fact.  There are no timesheets for the 20 days claimed by CMC.  CMC relies on its Cost Transaction Report for Staff Salaries[26] which records that sums were paid for Ms Pancholi working during the periods encompassing the 20 days claimed.  The periods identified in the Cost Transaction Report are seven day periods, but CMC submits that the Court should proceed conservatively on the basis that Ms Pancholi worked a standard five day week.  There is also evidence that on 13 November 2012, which was one of the 20 days claimed, Ms Pancholi sent an email.[27]
  2. WICET submits that there is no evidence to explain why, if Ms Pancholi worked onSite on the days claimed, there are no contemporaneous timesheets for her on those dates despite that otherwise being the case.  The material relied on by CMC does not, according to WICET, demonstrate a clerical error by Mr Roberts, but rather raises a factual issue (whether Ms Pancholi was working as an on-Site overhead) which would require further evidence.
  3. As to the fact there are no timesheets for these days in evidence, CMC submits that there are several possible explanations for this which may include that Ms Pancholi has omitted to fill one out or it has not been properly filed or it may not have been included in the documents tendered at trial.  Consistent with my finding in relation to Item 1,[28] the inference sought by CMC should not be drawn.  Although the material relied on by CMC lends some support to the drawing of the inference that Ms Pancholi was on-Site, the absence of timesheets for these days in circumstances where Ms Pancholi has completed timesheets for other days, does not permit the inference to be drawn.  Further evidence would be required to establish the fact.

Item 5

  1. CMC seeks an additional day for Matthew Grey, the Senior Project Manager.  There is a timesheet in evidence which shows Mr Grey as working on 17 November 2012.  The difficulty is that there are two timesheets for Mr Grey for the relevant period, one which shows him working on 17 November 2012 and one showing this as his rest day.  Both timesheets are included in Mr Roberts’ report.  The issue cannot be resolved without further evidence.  Further, as Mr Roberts was aware of both timesheets, no clerical error is established.

Item 6

  1. CMC seeks an additional day for Veronika Haber, a Senior Project Manager.  Although there is no timesheet for Ms Haber on the relevant day (15 October 2012) her handwritten diary note suggests that she was working on that day.[29]  The diary entry reads:

15 October 2012.  Shear boxes behind RSS walls check the
specs from VSL and MRS
Brackets and Slabs AB B TW.”

WICET submits that that entry does not evidence that Ms Haber worked on-Site on that day and further, that there is no evidence to explain why, if Ms Haber worked on-Site on the date claimed, there are no contemporaneous timesheets for that date despite that otherwise being the case.  I accept this submission.  No clerical error has been established.

Item 7

  1. CMC seeks an additional 67 days for the programmer, Bernie Storrier, at a rate of $1,050 per day.  CMC does not rely on timesheets to show that Mr Storrier was on-Site but rather on more general evidence.  This includes Organisational Charts in the Monthly Reports and references in the evidence to Mr Storrier by Mr Vance, Mr Henderson and Mr Grey.  WICET accepts that there is at least one document which evidences Mr Storrier being onSite for one day on 5 October 2012.[30]
  2. The difficulty is that in the absence of timesheets, the evidence relied on by CMC to establish that Mr Storrier was on-Site is at such a general level as to invite further evidence.  CMC accepts that the evidence upon which it relies does not extend to identifying the precise days on which Mr Storrier worked, but submits that the simple fact that there are no timesheets for Mr Storrier between 15 August 2012 and 20 February 2013, does not necessarily mean he did not work on-Site.  It is not however the mere absence of timesheets which prevents the drawing of such an inference and the establishment of a clerical error.  The hurdle is the requirement for further evidence.  As correctly submitted by WICET, the Organisational Charts do not demonstrate that a particular resource was working on-Site on any given day.
  3. No adjustment to Exhibit 427 arises as the day that Mr Storrier was working onSite (5 October 2012), as evidenced by a Meeting minute, does not fall within the dates of any relevant Delay Event.

Items 8 and 26

  1. Item 8 is partially agreed by WICET.  Jamie Taylor (Supervisor) has been entirely omitted from the Overheads Spreadsheet for approximately three months between 5 December 2012 and February 2013.  The parties agree that an additional 27.5 days should be included as reflecting Mr Taylor working on-Site. 
  2. The dispute in respect of Item 26 is a difference in a daily rate of $1,280 as opposed to $1,250.  The difference is between the rate for a Supervisor and that for a Foreman.  In the Organisational Charts Mr Taylor is classified as the on-Site Supervisor for Reid Road Works.  Mr Roberts’ report records Mr Taylor’s position as “Civil Foreman (Supervisor)” and allocates a daily rate of $1,250.  The Organisational Chart does not, in my view, establish a clerical error.
  3. The alteration to Exhibit 427 for Item 8 is as follows:

Delay Event 9d 3 days x $1,250  = $3,750

Delay Event 9e 24.5 days x $1,250 = $30,625

Delay Event 10 9.5 days x $1,250  = $11,875

Item 10

  1. CMC seeks an additional day (1 November 2012) for James Roche (Project Engineer).  The claim is based on an email sent by Mr Roche on that day.  The subject of the email is “Bebo Arch Wingwall Early Backfilled”.  CMC submits that it is a fair inference from the content of this email that it was sent on a day Mr Roche was working on-Site. 
  2. Mr Roberts has valued Mr Roche as an on-Site overhead where this is evidenced by timesheets.  WICET submits that there is no evidence which explains why, if Mr Roche worked on the date claimed, there is no contemporaneous timesheet for him.  In the absence of such evidence, I am not satisfied that a clerical error has been established. 

Items 11 and 23

  1. The parties agree that the Overheads Spreadsheet omits Greg Freeman (Safety Manager) as working on five days, namely 21 and 22 November 2012 and 2 to 4 January 2013.  The dispute is in relation to the appropriate daily rate which is a difference of $180 per day for the five days.  According to CMC the Overheads Spreadsheet does not adjust the rate assigned to Mr Freeman to reflect his change in position from Safety Advisor to Safety Manager from 19 September 2012 onwards.  Mr Vance informed Worley Parsons on 19 September 2012 as follows:

“Further to discussions at last week’s weekly progress meeting we confirm that Mr Dale Graham our safety manager has resigned to take up a long term position.

As discussed, we propose to fill Dale’s role during the ramp-down phase of the project with Mr Greg Freeman, with Mr Mark van den Berg (previously approved as Project Safety Manager) covering Mr Greg Freeman’s absences with overlap at either end of the roster to ensure continuity of coverage.”[31]

  1. This change in positions is thereafter reflected in the Organisational Charts for the months of September, October and November.  This evidence is, in my view, sufficient to establish that Mr Freeman changed to the role of Safety Manager from 19 September 2012.  For Item 11 Exhibit 427 is adjusted as follows:

Delay Event 9d 2 days x $1,200  = $2,400

Delay Event 9e 3 days x $1,200  = $3,600

  1. For Item 23 Exhibit 427 is adjusted as follows:

Delay Event 9b 6 days x $180  = $1,080

Delay Event 9c 1 day x $180  = $180

Day Event 9d 12 days x $180  = $2,160

Delay Event 9e 42 days x $180  = $7,560

Delay Event 10 17 days x $180  = $3,060

Delay Event 11 8 days x $180  = $1,440

Items 14 and 24

  1. CMC seeks the inclusion of 55 days in the Overheads Spreadsheet for surveyors.  While the Overheads Spreadsheet records surveyors as working on-Site during the earlier Delay Events (that is up until 24 November 2012), it omits to record any surveyors after 24 November 2012.  There is however, evidence which shows that surveyors were engaged and were working on-Site after 24 November 2012.
  2. This evidence includes CMC’s Cost Code 99201 (Staff Salaries) (Cost Transaction Report).[32]  This document records the following payments to three separate surveying companies:
  1. Halls Fripp Surveying Pty Ltd:
    November 2012 – supply of survey for Wiggins work for November 2012 - $23,062.50
    December 2012 – supply of survey for Wiggins work for December 2012 - $18,812.50
    January 2013 – supply of survey for Wiggins work for January 2012 as requested - $14,937.50
  1. RPS Australia East Pty Ltd
    January 2013 – Ron Whitford - $1,500
    February 2013 – contour survey – provision of surveying services as requested by Matt Grey - $16,500.
  1. MPA Surveying Pty Ltd
    February 2013 - $25,012.50
    March 2013 - $86,597.40
    April 2013 - $44,184.90

CMC also relies on other documents including invoices, reports referring to surveys performed on various relevant dates and Organisational Charts in CMC’s Monthly Reports.  CMC asserts that these charts show that it consistently allocated two surveyors to the Project.  CMC also refers to oral evidence given at trial which was consistent with there being multiple surveyors on-Site for the duration of the Project. 

  1. CMC, by reference to this evidence, submits that the Overheads Spreadsheet should be corrected to record at least one surveyor working on-Site during the Delay Events falling between 24 November 2012 and 26 March 2013 (other than on weekends and during the Christmas shut-down period).  For certain periods, CMC also seeks a correction to show two surveyors working on-Site where there is documentary evidence to support this.  For example, the Cost Transaction Report shows that at least two surveyors were engaged to carry out work in February 2013. 
  2. Having considered the references to the oral evidence of Mr Vance, Mr Grey and Mr Barry, I accept, as submitted by WICET, that this evidence is at such a level of generality that it cannot be said that it identifies any clerical omission in Mr Roberts’ report.  Nor do the Organisational Charts, in themselves, support the drawing of such an inference.  These charts relate to the period prior to 24 November 2012 and do not directly support the proposition that surveyors were an on-Site overhead in the period after 24 November 2012.
  3. It remains the case however, that a clerical omission has occurred because the Overheads Spreadsheet entirely omits to record any surveyors working on-Site after 24 November 2012.  This cannot be correct.  CMC, as is evidenced from the Cost Transaction Report was, in fact, incurring surveying costs after 24 November 2012. 
  4. WICET submits that the Cost Transaction Report does not permit the drawing of the inference sought by CMC:

“Those costs reports contain narrations which are very general in nature and which do not demonstrate whether a particular surveyor was working on-Site and, if so, the extent to which they were so working or whether that work was caused by the prolongation.  It would not be surprising if a considerable part of the survey work (eg. reporting) was performed off-site once primary survey records were taken … Even assuming that those cost transaction reports evidence the surveyors working on-Site during the periods alleged, it is nevertheless an issue of fact as to whether that surveying work was work which always needed to be carried out such that no additional cost was incurred or whether the surveyors were detained on-Site by reason of the delay.”[33]

I do not accept this submission.  Mr Roberts has treated surveyors as an on-Site overhead for the delay periods prior to 24 November 2012.  It would, in my view, give rise to an inconsistency in approach, if surveyors were treated differently for the delay events occurring after 24 November 2012.  Further, the information in the Cost Transaction Report is, in my view, sufficient to infer that surveyors remained an on-Site overhead after 24 November 2012.  Previously, at least in relation to Mr Blackman, a surveyor from MPA Surveying, WICET accepted that the Cost Transaction Report[34] was sufficient “to substantiate Mr Blackman being quantified as an on-site overhead”.[35]  As discussed below in relation to each relevant surveyor, there are further documents which corroborate the entries in the Cost Transaction Report and support an inference that the surveyors constitute an on-Site overhead which has been erroneously omitted.

  1.  Mr Goulding
  1. There is an invoice dated 25 January 2013 to CMC for $16,431.25 in respect of:

“Supply of survey for Wiggins works for January 2013 as requested.  See attached sheet for detailed summary.”[36]

The attached sheet identifies the days and hours worked by Mr Goulding between 8 to 19 January 2013.  CMC also seeks an additional seven days for Mr Goulding for the period 14-15 December 2012 (two days) and 17-21 December 2012 (five days).  As to this additional claim, WICET submits that the evidence does not explain why, if Mr Goulding worked between 14 and 21 December 2012, there are no contemporaneous timesheets for him on those dates.  The Cost Transaction Report, however, evidences the supply of survey for Wiggins’ work for December 2012 by Halls Fripp Surveying.  This evidence, in my view, permits the drawing of the inference sought by CMC.

  1.  Mr Tough
  1. There is a timesheet which evidences Mr Tough working on-Site on 3 January 2013.[37]
  1.  Mr Wisse
  1. CMC seeks five additional days for Mr Wisse to be recorded as an on-Site overhead for the period 26 November 2012 to 30 November 2012.  The Cost Transaction Report shows surveying costs being incurred in relation to Halls Fripp Surveying in November 2012.  According to CMC, documentary evidence shows that Mr Goulding and Mr Wisse were employed by Halls Fripp Surveying.  An invoice rendered by Halls Fripp Surveying in January 2013 includes a timesheet for Mr Goulding in support of the amount invoiced.  An “identical” timesheet as the one provided by Halls Fripp Surveying shows that Mr Goulding and Mr Wisse worked on the Project between 3 January 2012 and 7 January 2012.[38]  CMC therefore submits that it is reasonable to conclude that Mr Wisse was engaged by Halls Fripp in November 2012.[39]  CMC also refers to the Organisational Charts which record Mr Goulding and Mr Wisse as being the on-Site surveyors for October 2012 and November 2012.  WICET submits, however, that there is no cogent evidence that Mr Wisse was employed by Halls Fripp Surveying or working onSite as a surveyor on the dates claimed in November 2012. 
  2. In the absence of timesheets for the relevant days, I am not satisfied that the documentary evidence identified by CMC permits the inference to be drawn that Mr Wisse was an on-Site overhead for the period 26 November 2012 to 30 November 2012.  Mr Wisse is also relevant to Item 24.  CMC asserts that the Overheads Spreadsheet omits Mr Wisse from working on 47 days at a reasonable rate of $1,240 per day.  The difficulty with this claim is that Mr Roberts assigns a rate of zero to Mr Wisse based on reasonable rates.  Mr Tsipis has also valued Mr Wisse at nil.  WICET therefore submits that it appears that Mr Roberts has deliberately valued Mr Wisse’s daily rate (on reasonable rates) at nil.  I accept that CMC has not established a clerical error in the Overheads Spreadsheet omitting Mr Wisse from working on the claimed 47 days.
  1.  Mr Whitford
  1. Mr Whitford is specifically identified in the Cost Transaction Report as carrying out survey work in January 2013 on behalf of RPS Australia.[40]  WICET submits that it is not possible to discern from this entry that Mr Whitford performed the work on-Site as an onSite overhead.  The Organisational Charts record surveyors as an on-Site position.  The entry in the Cost Transaction Report together with the Organisational Charts permit the drawing of the inference sought by CMC.  This results in a further 20 days being recorded on the Overheads Spreadsheet for Mr Whitford.[41]
  1.  Mr Blackman
  1. CMC seeks to have the Overheads Spreadsheet corrected to have Mr Blackman recorded as an on-Site overhead for an additional 12 days in February 2012.  CMC identifies numerous documents evidencing Mr Blackman working on-Site as a surveyor in February and March 2013.  These are primarily reports which refer to a survey performed on various dates.[42]  WICET had previously accepted that Mr Blackman was omitted from the Overheads Spreadsheet and that his inclusion would increase the quantum of Delay Events 9e, 10 and 11 by $14,880, $13,640 and $9,920 respectively.[43]  In spite of this concession WICET asserts that in circumstances where CMC did not include the surveyors in its contemporaneous compilation of the Overheads Spreadsheet during the periods now claimed, their exclusion is significant and gives rise to an inference that the surveyor costs are not overheads.  I do not accept this submission.  As correctly submitted by CMC, the nature of the present task for the Court is to identify and cure the errors and omissions that exist in the Overheads Spreadsheet.  The documentary evidence identified by CMC establishes that Mr Blackman, as with other surveyors, were erroneously omitted as an on-Site overhead.
  1.  Surveyors’ effect on quantum
  1. WICET accepts that the appropriate daily rate for the surveyors with the exception of Mr Wisse, is $1,240 per day.  The effect of adding the omitted days for each delay event is as follows:

Delay Event 9e –  $54,560 (44 days)

Delay Event 10 –  $27,280 (22 days)

Delay Event 11 –  $7,440 (6 days).

Items 15 and 25

  1. These items concern Ajay Pancholi.  The Overheads Spreadsheet omits Mr Pancholi as working on six days in February 2013.  There are timesheets which show that he was onSite on those days.[44]  WICET points out that there is no entry in the column “Pro-rata Calc” on these timesheets for the relevant days, despite that being the case for all other days on the timesheets.  According to WICET, this gives rise to an inference that no additional cost was incurred by CMC for Mr Pancholi on these days, or that it was a non-working day.  As explained by CMC however, the absence of an entry in the “Pro-rata” column is a distraction.  That column is only filled out for work on weekdays.  The fact that it is not filled out for weekends does not mean Mr Pancholi was not working on-Site.  The timesheets establish the relevant omission.  Item 25 concerns Mr Pancholi’s daily rate.  CMC seeks the rate of $1,200 on the basis that the Organisational Charts contained in CMC’s Monthly Reports for October and November 2012 identify Mr Pancholi’s role as Project Engineer rather than Site Engineer.[45]  Both Mr Roberts and Mr Tsipis valued Mr Pancholi as a Site Engineer rather than as a Project Engineer.  The difference in daily rate is $180.  It may be accepted that Mr Pancholi was, as a matter of fact, responsible for the construction of the Beales Creek Bridge and Rail Receival Bridge after Ms Haber and Mr Hale left the Project at the end of October 2012.  Mr Pancholi left the Project in February 2013 which coincides with the completion of the Beales Creek Bridge and Rail Receival Bridge.[46]  The daily rate that should have been applied to Mr Pancholi is that of Project Engineer rather than Site Engineer. 
  2. For Item 15 this results in the following adjustments to Exhibit 427:

Delay Event 9e –   $4,800

Delay Event 10 –  $4,800

Delay Event 11 –  $2,400

For Item 25 it has the following effect:

Delay Event 9d –  $3,920

Delay Event 9e –  $5,180

Delay Event 10 –  $2,240

Delay Event 11 –   $840

Items 17 and 27

  1. The parties agree that the Overheads Spreadsheet omits Andrew DeLacy as working on five days between 14 to 20 November 2012.  The dispute is in relation to the daily rate which should be applied to Mr DeLacy.  CMC seeks the application of a daily rate of $1,360 as a Senior Project Engineer, as opposed to a rate of $1,060 as a Project Engineer.  The difference in the daily rate is $300.  CMC relies on a Deviation Request Form issued to WICET.  The deviation was requested by Mr DeLacy as “Senior Project Engineer”.  The date of the request is 12 September 2012.[47]  There is also an Organisational Chart contained in CMC’s October 2012 Monthly Report[48] where Mr DeLacy is included in the Project Engineer bubble, in bold and appears over Mr Pancholi.  This evidence is sufficient, in my view, to demonstrate a clerical error in Mr Roberts valuing Mr De Lacy as a Site Engineer, rather than as a Senior Project Engineer.
  2. The effect on quantum in respect of Item 17 is as follows:

Delay Event 9d –   $6,800

For Item 27, the adjustment is:

Delay Event 9d –    $3,000

Items 16 and 19

  1. CMC seeks an additional day (9 February 2013) in respect of Sandro Lombardi.  CMC also seeks to have a daily rate of $1,360 applied to Mr Lombardi as a Superintendent, rather than the rate applicable for a Project Engineer.  CMC relies on both a timesheet[49] and contemporaneous Organisational Charts[50] in support of this correction to the Overheads Spreadsheet.  WICET makes the same submissions it made in relation to Items 15 and 25 which I have already rejected. 
  2. The effect on quantum in respect of Item 16 is:

Delay Event 9e –   $1,360

Delay Event 10 –    $1,360

For Item 19, the following adjustments result:

Delay Event 9d –   $3,840

Delay Event 9e –   $7,280

Delay Event 10 –   $2,320

Delay Event 11 –    $1,120

Item 18

  1. This item concerns Cole Brandon (Safety Adviser).  CMC submits that Mr Brandon should be included in the Overheads Spreadsheet for 22 days, being two days per week between 28 November 2012 and 20 February 2013.  There are in fact only two documents which directly support Mr Brandon being on-Site.  The first is a minute of a Contract Progress Meeting of 28 November 2012 which lists Mr Brandon as an attendee.  WICET accepts that this results in an addition of $1,020 (one day) for Delay Event 9d.[51]  The second document is an email dated 22 February 2013 which refers to a 3.00 pm inspection of the Bebo Arch where “Cole” is referred to as attending.  Even accepting that the email shows Mr Brandon being on-Site on 22 February 2013, this date does not fall within any of the Delay Event periods.
  2. CMC refers to other evidence, such as Organisational Charts and evidence concerning other safety officers, to submit that it is reasonable to conclude that Mr Brandon was working on-Site between November 2012 and February 2013.  Mr Brandon does not, however, appear on the November 2012 Organisational Chart, nor are there any timesheets to support this claim.  As correctly submitted by WICET, the evidence does not explain why, if Mr Brandon worked between 30 August 2012 and 26 March 2013, there are no contemporaneous timesheets for him working on-Site over that period.  CMC’s submission proceeds on the assumption that there would “typically” be two safety personnel on-Site.  WICET has not had an opportunity to test that proposition nor the proposition that Mr Brandon was an on-Site resource, or that he worked on-Site for an average of two days per week.
  3. The correction for Item 18 should therefore be limited to the addition of $1,020 for Delay Event 9d.

Item 21

  1. This item concerns the appropriate rate to be applied to Davendra Prasad.  CMC asserts that a daily rate applicable to a QA manager should be applied.  This constitutes a $160 daily uplift to the relevant rate.  CMC relies on the fact that Mr Tiltman, who is described in the Organisational Charts as the “Quality Engineer”, ceased working on the Project on 21 August 2012.  As CMC has a contractual obligation to retain a QA manager as part of the key personnel for the duration of the Project, it should be accepted, according to CMC, that the evidence shows that Mr Prasad stepped into Mr Tiltman’s role as QA manager after 21 August 2012.
  2. The difficulty with this submission is that there are a number of contemporaneous documents where Mr Prasad refers to himself as a “Project/Quality Engineer”.  There are two applications for leave forms on 17 and 19 September 2012 where he uses this description.[52]  Further, his designation in the Organisational Charts remained “Project/Quality Engineer”.[53]
  3. I accept WICET’s submission that in circumstances where Mr Prasad is still referred to as a Project/Quality Engineer in the Monthly Reports, there is no clear evidence to substantiate a rate increase by reason of an elevation to a managerial role.  CMC has not established any clerical error.

Item 28

  1. The issue is whether Kris Orford should have been assigned the foreman’s rate of $1,250.  Mr Roberts classified Mr Orford as a leading hand which attracts no daily rate.  Mr Orford has been omitted at the foreman’s rate for a total of 28 days. 
  2. In an Organisational Chart annexed to CMC’s November 2012 Monthly Report Mr Orford is recorded as being responsible for the “RE walls” work.  CMC submits that there is no other person in a supervisory capacity that has been allocated to this work in conjunction with Mr Orford.  He also filled out numerous daily costing sheets where he is described as “foreman”.[54]  Mr Orford was also included by Mr Grey in his Bebo Arch timeline document as a foreman.[55]
  3. This evidence does not, in my view, demonstrate a clerical error in Mr Roberts’ report.  It is not clear whether Mr Orford was a foreman or a leading hand.  WICET points to Mr Barry’s evidence where he referred to Mr Orford as a leading hand[56] in relation to events in December 2011.  Mr Orford also referred to himself as a leading hand in an application for leave form on 17 October 2012.[57]  I accept WICET’s submission that it has not had an opportunity to test the proposition that Mr Orford worked as a foreman or should be assigned a daily rate at all.
  4. No clerical error is demonstrated.

Item 29

  1. This item concerns the appropriate rate to be applied to Steve Brooksby, namely as a leading hand or a foreman.  It raises similar considerations to Item 28 above.  For those same reasons, I am of the view that no clerical error has been established.

Item 30

  1. This item and the following items all concern errors in the inclusion of facilities/general on-Site overheads. 
  2. Item 30 is partly agreed between the parties.  The item concerns a mistake made by Mr Roberts in only allowing $50 per day for “office running costs” when the appropriate rate is $250 per day.  WICET accepts that Mr Roberts made such a mistake.  The only difference between the parties is how the amount for Delay Event 9d should be made.  Consistent with the calculation in relation to other delay events, the amount should be $9,200 as submitted by WICET, rather than $10,200. 
  3. The effect on quantum is that for Item 30 the delay events are increased as follows:

 Delay Event 9a –  $7,200

 Delay Event 9b –  $1,600

 Delay Event 9c –  $200

 Delay Event 9d –  $9,200

 Delay Event 9e –  $12,200

 Delay Event 10 –  $4,200

 Delay Event 11 –  $1,600

Item 34

  1. Mr Roberts, having identified the reasonable rate for “20Kva Generator” in the Overheads Spreadsheet at $59.90 per day, subsequently omitted from the list of amenities included for each Delay Event this overhead. 
  2. WICET agrees that Mr Roberts, in his rate summary sheets, identified the relevant rate but did not allow any value for the generator in the claim.  WICET submits that in the absence of further evidence from Mr Roberts, it cannot be concluded that this was a clerical error rather than a matter of opinion.  It might be, according to WICET, that the cost of the generator is included in the rate for another item.
  3. I accept CMC’s submission, however, that if Mr Roberts had included the rate for the generator in another item, then there would have been no reason to ascribe a specific, individual rate for the generator in the first place.  It is also not at all apparent what possible other rate the 20Kva Generator rate could have been incorporated into.
  4. The rate having been identified by Mr Roberts for the generator but not subsequently applied does, in my view, constitute a clerical error.  The effect on quantum in respect of Item 34 is as follows:

Delay Event 9a –  $2,156.40

Delay Event 9b –  $479.20

Delay Event 9c –  $59.90

Delay Event 9d –  $3,054.90

Delay Event 9e –  $3,653.90

Delay Event 10 –  $1,257.90

Delay Event 11 –  $479.20.

Item 35

  1. The relevant item is a 100Kva Generator for which Mr Roberts identified a reasonable rate of $95.02 per day.  Like the 20Kva Generator, this overhead is subsequently omitted from Annexure 3.3 for each Delay Event.  For the reasons I have given above in relation to Item 34, I accept that this constitutes a clerical error.
  2. The effect of Item 35 on quantum is as follows:

Delay Event 9a –  $3,420.72

Delay Event 9b –  $760.16

Delay Event 9c –  $95.02

Delay Event 9d –  $4,846.02

Delay Event 9e –  $5,796.22

Delay Event 10 –  $1,995.42

Delay Event 11 –  $760.16

Item 36

  1. CMC seeks to include a daily allowance for motor vehicles of $2,119.83 for every day of the Delay Events.  This claim constitutes CMC’s largest adjustment to Exhibit 427.  The daily rate is ascertained by reference to CMC’s Cost Code 99102 (Staff Vehicles and Transport).[58]
  2. The daily allowance is sought on the basis that the resource is not included in Mr Roberts’ report “on its face”.[59]  CMC asserts that Mr Roberts provides a detailed breakdown of how he calculated his personnel rates which does not include any allowance for vehicles, and the most appropriate inference is that this was an omission.
  3. I accept WICET’s submission that this inference cannot be drawn.  First, there is no direct evidence as to whether or not Mr Roberts’ rates include an allowance for vehicles.  Secondly, Mr Tsipis expressly included an uplift in relation to vehicles in his valuation.  While Mr Roberts did not expressly state whether he was including a rate for vehicles, he did include a 30 per cent site-based uplift.  In the May Reasons I found that in quantifying the on-Site overheads in respect of each Delay Event by the application of reasonable rates, there is little difference in the result arrived at by Mr Roberts and Mr Tsipis.[60]  The application of CMC’s daily allowance for motor vehicles results in significant amounts being added to on-Site overheads for each Delay Event.  For example, the amount for Delay Event 9d is increased by $108,011.47 and for Delay Event 9e by $129,309.80.  This creates a considerable difference in the quantification of on-Site overheads between the experts in circumstances where Mr Tsipis has already taken motor vehicle costs into consideration.  This would suggest that Mr Roberts too has already taken those costs into account.  The appropriate way to resolve whether Mr Roberts did or did not include motor vehicle costs is by CMC adducing further evidence, which is not permitted.
  4. I accept WICET’s submission that CMC’s claim for a daily allowance for motor vehicles does not constitute the type of clerical error contemplated by the Court of Appeal.

Item 37

  1. Similar to Items 34 and 35, the error asserted by CMC in respect of Item 37 is that Mr Roberts, having identified a reasonable rate for the “hire of lunchroom” at $17.49 per day, subsequently omitted this overhead from the list of amenities included for each delay event.  I accept that this is a clerical error which has the following effect on quantum:

Delay Event 9a –  $629.64

Delay event 9b –   $139.92

Delay Event 9c –  $17.49

Delay Event 9d –  $891.99

Delay Event 9e –  $1,066.89

Delay Event 10 –  $367.29

Delay Event 11 –  $139.92

Item 38

  1. The considerations in relation to Item 38 are similar to those for Items 34, 35 and 37.  For the same reasons I am satisfied that the omission of a reasonable rate for the “hire of office” constitutes a clerical error.  The effect of Item 38 on quantum is as follows:

Delay Event 9a –  $571.68

Delay Event 9b –  $127.04

Delay Event 9c –  $15.88

Delay Event 9d –  $809.88

Delay Event 9e –  $968.68

Delay Event 10 –  $333.48

Delay Event 11 –  $127.04

Item 39

  1. This concerns a clerical error where Mr Roberts has identified a reasonable rate for “hire of two room office” as $19.07 per day but has incorrectly applied a rate of $9.07 per day.  The effect on quantum of Item 39 is as follows:

Delay Event 9a –  $1,440

Delay Event 9b –  $320

Delay Event 9c –  $40

Delay Event 9d –  $2,040

Delay Event 9e –  $2,440

Delay Event 10 –  $840

Delay Event 11 –  $240

Item 40

  1. This item concerns the hire of portable toilets.  It raises for consideration similar issues as Items 34, 35, 37 and 38.  I accept CMC’s submission that Mr Roberts has made an error in the Overheads Spreadsheet by:
  1. ascribing a rate for an overhead for which CMC was incurring additional costs by reason of the delay; and
  1. failing to apply that rate to any day that falls within a Delay Event.[61]
  1. The effect of Item 40 on quantum is as follows:

Delay Event 9a –  $277.20

Delay Event 9b –  $61.60

Delay Event 9c –  $7.70

Delay Event 9d –  $392.70

Delay Event 9e –  $469.70

Delay Event 9f –   $161.70

Delay Event 9g –  $61.60

(e) CMC’s proposed uplift

  1. CMC submits that the Court should apply an “uplift or adjustment” in arriving at the final quantification of the Delay Claim:

“The ascertainment of the cl 40.5(c) reasonable rate or price for CMC’s onSite overheads involves a degree of ‘judgment, estimation and approximation’[62] by the decision-maker.  Indeed, it is only through the exercise of such judgment and approximation that the Court can embrace the process of extrapolation used in Exhibit 427 at all.  This Court is both well placed, and entitled, to make an appropriate final estimation, including adopting an appropriate uplift, to produce a contractual rate.  It is particularly appropriate to do so given that Exhibit 427 is now being used in a way which was not contemplated at the time it was put forward, and where it is plain that it does not capture all of CMC’s on-Site overhead cost (and therefore doubtful that even the uplifted rate of $25,559.60/day captures the full cost borne by CMC).”[63]

  1. I do not accept this submission.  The quantification of the Delay Claim in accordance with the Reasons of the Court of Appeal requires this Court to apply the reasonable rates identified in Mr Roberts’ report to resources contained in the Overheads Spreadsheet (subject to correction for “clerical errors”).  Such an exercise does not permit this Court, either by reference to clause 40.5(c) or otherwise, to apply an uplift based on the Court’s own impression of the reasonableness of the outcome.  As correctly submitted by WICET, the Court in determining the quantification of the Delay Claim is not making an interim determination during the course of the works as the Principal’s Representative would do, but rather is settling the final rights of the parties in accordance with the pleadings, particulars and evidence.[64]

(f) Revised Exhibit 427 in accordance with Court of Appeal’s Reasons

  1. Annexure A to these Reasons is two tables.  The first is the revised Exhibit 427 in accordance with the Court of Appeal’s Reasons.  The second is a table showing the calculations for Exhibit 427 and the delay valuation.  The calculation of CMC’s Delay Claim, based on these tables, is $2,932,550.61. WICET has already paid CMC the amount of $4,087,223.21.  WICET is therefore entitled on its counterclaim in respect of the Delay Claim to an amount of $1,154,682.60.                                        

On-Site Overheads in the Piling Claim

  1. At paragraph [490] of the May Reasons I assessed quantum in respect of events 1, 2, 3 and 6 of the Piling Claim was assessed at $245,071.  In valuing this claim the Court adopted an alternative valuation of Mr Roberts which reduced the sum awarded by 7.5 per cent to remove on-Site overheads.[65]  CMC submits, and I accept, that this reduction was only necessary if the Court construed clause 36 of the General Conditions of the Contract as requiring Delay Costs to be valued contemporaneously with Delay Events.  I rejected this construction.  The parties therefore agree that the amounts in paragraph [490] should be adjusted as follows:

Direction 1 – Beales Creek Waterway Barrier Permit   $141,593 $151,706
Direction 2 – NCR01        $73,868 $79,144
Direction 3 – Postponement of Rail Receival Piling Work  $22,680 $24,300
Direction 6 – Stop Work       $6,930 $7,425
TOTAL:          $245,071 $262,575[66]

Final Certificate

  1. In paragraph [1069] of the May Reasons I requested the parties to calculate the amount payable by CMC to WICET in respect of the Final Certificate Scott Schedule in accordance with those Reasons. 
  2. CMC submits that the amount payable by it to WICET in respect of WICET’s Final Certificate counterclaim is $1,763,141.76.  WICET agrees with this amount except to the extent of two items, being Cells 89 and 91 of the Scott Schedule.  These two disputed amounts are in the Scott Schedule not the Final Certificate.  By reference to paragraphs [943(c)] and [946] of the May Reasons, CMC submits that its obligation to pay for any item in the Final Certificate or receive a refund for any item cannot be less favourable than the amount certified in the Final Certificate.
  3. For Cell 89 the Final Certificate identified that CMC had been paid $8,311.37 in respect of this item and a further amount of $10,708.88 was certified as payable by WICET to CMC.  In the Scott Schedule CMC conceded that it was overpaid an amount of $8,311.37 for this item.  According to WICET this position was agreed as between CMC and WICET and CMC should be held to its concession.  This results in the amount payable by CMC increasing by $19,020.25, reflecting the change from $10,788.78 payable to CMC to $8,311.37 payable to WICET.[67]
  4. The Scott Schedule reveals WICET’s valuation is based on the conceded fact that the work was not performed by CMC as the work was de-scoped.
  5. Nothing in the May Reasons, in particular at paragraph [946], permits CMC to depart from its concession.
  6. In respect of Cell 91 however, I accept CMC’s submission that no similar concession was made by CMC in the Scott Schedule.[68]
  7. The result is that CMC’s figure of $1,763,141.76 should be increased by $19,020.25 to $1,782,162.01.  This amount is payable by CMC to WICET in respect of WICET’s counterclaim concerning the Final Certificate. 

Quantification of the Earthworks Claim (Variation 141)

  1. At paragraph [265] of the May Reasons the Earthworks Claim was valued at $1,549,509.  Having considered the parties’ further submissions[69]  I do not intend to alter this amount.  I accept CMC’s submission that WICET in its recalculation fails to take into account, in considering Mr Roberts’ figures, a 15 per cent reduction for the Productivity Adjustment or a subsequent 12.5 per cent increase for profit.
  2. As to CMC’s suggestion that the amount of $1,549,509 should be increased by $2,765.78 because of a minor calculation error in exhibit 426, no such adjustment should be made.  As is evident from my consideration of the Earthworks Claim, no calculation of quantum could ever be approached with such exactitude as to warrant such a small adjustment.

GST

  1. CMC submits that on each amount to which the Court determines CMC is entitled, CMC should also be awarded a further 10 per cent in order to account for its GST liability.  Both parties accept that no interest is payable on any GST component.[70] 
  2. CMC claims GST on the total sum awarded to it by the Court, or alternatively on each amount awarded in respect of each individual claim which the Court is satisfied that CMC has a liability to pay GST.
  3. WICET accepts that, by reason of clause 57(f) of the General Conditions of the Contract, GST should be added to the payments made.  I accept WICET’s submission that the Court should make such payment under clause 57(f) conditional on a valid tax invoice being issued by the recipient.  I note that a similar approach was taken in Peet v Richmond (No 2).[71]
  4. I accept that in respect of each of the claims to which CMC has an entitlement to payment from WICET, it is also entitled to receive a further amount that is equivalent to its GST liability.  GST amounts payable are as follows:

Claim

Amount Payable

GST

Earthworks Claim

$1,549,509.00

$154,950.90

Piling Claim

$262,575.00

$26,257.50

Piling Hammer Claim

$639,258.58

$63,925.86

Bebo Arch Claim

$822,479.75

$82,247.98

Environmental Management Claim

$69,746.05

$6,974.61

Geolon 600 Claim

$219,018.00

$21,901.80

TOTAL

$3,562,586.38

$356,258.65

Bank Guarantee

  1. CMC’s claim with respect to the Bank Guarantee is that pursuant to clause 42.8 of the General Conditions of the Contract WICET should properly have returned ANZ Bank Guarantee Number DG 79323115 to CMC within 14 days of issuance of the Final Certificate and that its failure to do so constitutes a breach of that clause.[72] 
  2. Clause 42.8 provides:

“Within 14 days after the issue of a Final Certificate which certifies a balance owing by the Principal to the Contractor, the Principal shall release to the Contractor any retention moneys or security then held by the Principal.”

  1. The Final Certificate did not certify a balance owing by WICET to CMC.  CMC submits however, that had the Final Certificate been properly valued (in accordance with the May Reasons and these Reasons), it would have certified an amount payable by WICET to CMC.  On the figures identified in these Reasons, an amount would have been payable by WICET to CMC.  In these circumstances, CMC submits that at the time of the issue of the Final Certificate, CMC had discharged its obligations to complete the work, did not owe any money to WICET, and was entitled to the return of the Bank Guarantee, pursuant to clause 42.8, by 21 May 2014.  The Court should therefore order the Bank Guarantee be returned to CMC immediately.[73]
  2. WICET accepts that if it is obliged to pay an amount to CMC then the Bank Guarantee should be returned.[74]  It is therefore appropriate to order the return of the Bank Guarantee.  CMC seeks this return within seven days of judgment.
  3. CMC further submits that the Court should also order that WICET pay interest on the sum of the Bank Guarantee ($1,923,251.94) from 21 May 2014 to the date of judgment at the rate prescribed by section 58 of the Civil Proceedings Act 2011 (Qld) and from judgment until payment (of this interest amount) at the rate prescribed by section 59 of the same Act.  CMC submits that this was the course adopted by the New South Wales Court of Appeal in St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd.[75]  In that case Emmett JA (with whom Meagher JA and Sackville AJA agreed), in allowing the appeal, determined that under the provisions of the relevant contract the principal was required to return a bank guarantee.  His Honour continued:

“The Principal should be ordered to pay interest on the sum secured by the bank guarantee at the rate prescribed by the Court, calculated from 21 March 2012.”[76]

  1. The statement of Emmett JA does not reveal the basis upon which interest was allowed on the bank guarantee, nor whether any submissions were made on the issue.  As submitted by WICET, although the Court of Appeal in St Hilliers allowed interest on a bank guarantee, it does not appear that whether there was such an entitlement was an issue either on appeal or at first instance.[77]
  2. CMC submits that the New South Wales Court of Appeal in Hillier appears to have treated the return of a bank guarantee as sufficiently similar to the payment of money so as to warrant an award of interest.  CMC further submits that a proceeding for the return of a bank guarantee in effect constitutes a proceeding in a court for “the payment of money” for the purposes of section 58 of the Civil Proceedings Act.  Sections 58(1) and (3) provide:

“(1)This section applies in relation to a proceeding in a court for the payment of money, including a proceeding for debt, damages or the value of goods.

  1. The court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.”
  1. Section 59(2) provides that interest is payable from the date of a money order on the money order debt unless the Court otherwise orders.  The term “money order debt” is defined in the Schedule to the Civil Proceedings Act to mean the amount of money payable under a money order.  “Money order” is defined to mean an order of the Court, or part of an order of the Court, for the payment of money, including an amount for damages, whether or not the amount is or includes an amount for interest or cost.
  2. According to CMC the word “money” in section 58 should be given a similar meaning as found in the Australian Legal Dictionary[78] where “money” is defined as follows:

“Any generally accepted medium of exchange for goods, services, and the payment of debts.  Examples are coins, bank notes, bills of exchange, promissory notes and claims on bank deposits.”[79]

  1. According to CMC a bank guarantee, which is given as security instead of cash, fits within this definition of money.  If a bank guarantee is withheld then an award of interest on the bank guarantee amount should be made.
  2. WICET, by reference to the terms of sections 58 and 59 and in particular the definition in the Schedule of “money order”, submits that the seeking of the return of a bank guarantee is in the nature of an order for specific performance of the obligation to return the document rather than a proceeding “for the payment of money” which culminates in a “money order”.[80]
  3. I accept WICET’s submission.  CMC’s claim for interest on the principal amount under the Bank Guarantee pursuant to section 58 does not sit well with either the nature of a bank guarantee or the underlying purpose of an award of statutory interest.  Jackson J in Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd,[81] recently considered section 58 and the purpose of an award of interest:

“First, prejudgment interest under s 58, whether awarded in actions for debt or damages, is awarded in the nature of damages.[82]

Second, statutory interest is the ‘price’ to be paid by a defendant for keeping a plaintiff out of money to which the plaintiff is entitled, so as to provide compensation to the plaintiff for the loss of use of the judgment money;[83] however, the award is discretionary.”[84]

  1. There is no evidence before the Court that CMC has been kept out of the principal amount ($1,923,251.94) under the Bank Guarantee.  The relief sought in CMC’s Statement of Claim in paragraph 1B is an order that CMC return the Bank Guarantee to WICET.  Paragraph 4 of the relief seeks interest pursuant to section 67P of the QBCC Act, in the alternative interest pursuant to clause 42.9 of the Contract and in the further alternative pursuant to section 58 of the Civil Proceedings Act.  There is no claim for damages resulting from the retention of the Bank Guarantee, nor is there any claim constituting CMC’s costs, such as bank fees, in keeping the Bank Guarantee in place.  CMC’s claim for interest pursuant to section 58 therefore proceeds on the assumption that the Bank Guarantee constitutes “money” in the amount of $1,923,251.94 the use of which CMC has lost because of WICET retaining the Bank Guarantee.  The Bank Guarantee, however, is in the nature of a security and does not constitute “money” for the purpose of section 58.  The provision of the Bank Guarantee arose pursuant to clauses 5.2 and 5.3 of the General Conditions of the Contract.  Clause 5.2 which is headed “Provision of Security” states:

“If it is provided in the Annexure that a party shall provide security then the party shall provide security in the amount stated in the Annexure and in accordance with this Clause.

Where security is provided in the form of retention money, this shall be deducted from each progress or milestone payment at the rate stated in Annexure Part A.”

  1. The security required by the Annexure was 10 per cent of the contract sum (2 x 5 per cent unconditional bank guarantees).  The security envisaged by the Contract was therefore unconditional bank guarantees.  Clause 5.3 relevantly required the security to be in the form of an approved unconditional undertaking given by an approved financial institution, or other form approved by the party having the benefit of the security.
  2. CMC may have incurred costs or suffered damages as a result of the retention of the Bank Guarantee but there is no claim for such costs or damages.  Further, any such costs or damages would not ordinarily be calculated by reference to the interest on the principal amount under the Bank Guarantee.
  3. No interest should therefore be awarded on the Bank Guarantee. 

Interest

(a) Is CMC entitled to both interest under the QBCC Act and the Contract?

  1. CMC submits that it is entitled to interest under the QBCC Act as well as at the rate prescribed by clause 42.9 of the Contract, which provides for interest to be payable at the rate of 8 per cent per annum, compounding six monthly.
  2. CMC has not referred to any authority which would support this submission.  Nor is the submission consistent with CMC’s pleading where in paragraph 4 of the Prayer for Relief interest pursuant to clause 42.9 of the Contract is pleaded as an alternative claim for interest pursuant to section 67P of the QBCC Act.  Putting aside these two considerations, I am, in any event, of the view that upon a proper construction of the QBCC Act CMC’s submission should be rejected.
  3. In the May Reasons, paragraph [906], I concluded that CMC is entitled to interest payable pursuant to section 67P of the QBCC Act.  Section 67P provides:

Late progress payments

  1. This section applies if—
  1. the contracting party for a building contract is required to pay an amount (the progress amount) to the contracted party for the building contract; and
  1. the progress amount is payable as the whole or a part of a progress payment; and
  1.  the time (the payment time) by which the progress amount is required to be paid has passed, and the progress amount, or a part of the progress amount, has not been paid.
  1. For the period for which the progress amount, or the part of the progress amount, is still unpaid after the payment time, the contracting party is also required to pay the contracted party interest at the penalty rate, as applying from time to time, for each day the amount is unpaid.
  1. In this section—

penalty rate means—

  1. the rate made up of the sum of the following—
  1. 10% a year;
  1. the rate comprising the annual rate, as published from time to time by the Reserve Bank of Australia, for 90 day bills; or
  1. if the building contract provides for a higher rate of interest than the rate worked out under paragraph (a)—the higher rate.”
  1. CMC submits that section 67P provides an entitlement to “penalty interest” for unpaid progress payments under building contracts at the higher of the rate under that section or the contractual rate, which is additional to (and not exclusive of) any contractual rate otherwise agreed between the parties.  In particular, section 67P(2) mandates the payment of interest at the “penalty rate” but does not displace any contractual entitlement to interest.[85]
  2. CMC refers to one of the objects of the QBCC Act in section 3 which is to regulate the building industry to ensure the maintenance of proper standards in the industry.  According to CMC one of the primary issues in the building industry is contractor insolvency due to delayed payment from head contractors and principals.  CMC therefore submits that interpreting the QBCC Act as providing an additional right to “penalty interest” is consistent with this object because it more readily encourages timely payments.[86]  In support of this submission CMC refers to extrinsic material pursuant to section 14B of the Acts Interpretation Act 1954, including the Second Reading Speech by the relevant minister in introducing section 67P of the QBCC Act:

“For all contracts, a special penalty interest rate will apply for late payments.  This rate is 10%, in addition to the Reserve Bank’s 90-day bill rate, calculated daily.  Because no short-term investment could possibly yield such a rate, there will be a strong incentive for the contracting party to pay on time, and to settle disputes fairly and promptly.”[87]

  1. CMC also refers to the Explanatory Notes to the Queensland Building Services Authority Amendment Bill 1999:

“Section 67P provides that a penalty rate of interest is payable on late progress payments or any portion thereof, so as to remove incentives to contracting parties to delay payment.  The penalty rate is set at the 90-day bill rate published by the Reserve Bank, plus 10 per cent, calculated daily.  Parties are permitted to contract for higher rates.”[88]

  1. CMC also seeks to draw a distinction between section 67P of the QBCC Act and section 58 of the Civil Proceedings Act 2011 which expressly provides that it does not apply in relation to a proceeding in which interest is payable as of right under an agreement.[89]  CMC submits that in the absence of clear words, section 67P should not be construed as impinging on the terms of the parties’ agreement.[90]  Neither the reference to the objects of the QBCC Act nor the extrinsic material support CMC’s construction of section 67P. 
  2. Section 67P, as a matter of ordinary language, does not create a statutory right to penalty interest.  Section 67P simply specifies the rate of interest referred to as “the penalty rate” which is payable in respect of an unpaid progress amount or part of the progress amount.  The term “penalty rate” is a defined term in section 67P(3).  The penalty rate is either the rate prescribed in section 67P(3)(a) or is the rate of interest under the building contract, whichever is the higher.  This means that the interest under the building contract will constitute the “penalty rate” if it is higher than the rate prescribed by section 67P(3)(a).  The language used by section 67P is that of “penalty rate” not “penalty interest”.  CMC’s construction would mean that where the contractual rate of interest constituted the “penalty rate” for the purposes of section 67P, the building contractor would be entitled to interest under the contractual rate both under the contract and under section 67P.  If section 67P was to operate in this way, that is as creating a separate statutory right (independent of any contractual right) to penalty interest, one would expect such a right to be created by clear and unambiguous words.
  3. In this respect CMC’s reliance on the distinction between section 67P and section 58 of the Civil Proceedings Act is misplaced.  This is because unlike section 67P, section 58 bestows on a court a discretion to award interest in a proceeding for the payment of money only in circumstances where interest is not payable as of right whether because of an agreement or otherwise.[91]  That is, unlike section 67P, section 58 does create a right (albeit at the discretion of the court) to an award of interest.  As section 67P does not purport to create any right to penalty interest, it is unsurprising that it does not contain a similar provision to section 58(2)(b) of the Civil Proceedings Act.

(b) What interest rates apply?

  1. WICET submits that neither the QBCC rate nor the contractual rates apply to CMC’s claims.
  2. In paragraph 226 of the Eighth Further Amended Statement of Claim, CMC pleads that pursuant to clause 42.9 of the Contract it is entitled to payment of interest by WICET on any moneys held to be due and payable by WICET to CMC from the date on which those moneys were required to have been paid to CMC under the Contract.  WICET has admitted this allegation.[92]  In submitting that CMC is not entitled to interest either pursuant to the QBCC rate or the contractual rate, WICET accepts that it has not advanced this position previously and that it has admitted that CMC is entitled to be paid interest at the contractual rate.[93]  WICET submits however, that as the issue is one of law there is no apparent prejudice to CMC in WICET raising this issue.  CMC accepts there is no substantial prejudice.  Had it been necessary I would have granted WICET leave to withdraw the admission pursuant to rule 188 of the Uniform Civil Procedure Rules 1999.  Such leave is in any event unnecessary as I do not accept WICET’s submission.  The issue concerns the proper construction of clause 42 of the General Conditions of the Contract and section 67P of the QBCC Act.  WICET asserts that neither rate of interest applies as no moneys were due from WICET to CMC.  This is because the Personal Representative had not certified the amounts claimed as due to CMC.  By reference to clause 42.9 of the General Conditions of the Contract WICET submits that moneys do not become “due” until there has been a certification of that amount under clause 42, and the time for payment has arrived.  As there has been no such certification, the amounts claimed were not accordingly “due” under the Contract from the dates claimed by CMC.  CMC’s claims are therefore, in truth, claims for damages not in debt.[94]  Clause 42.9 provides:

“If any moneys due to either party remain unpaid after the date upon which or the expiration of the period within which they should have been paid then interest shall be payable thereon from but excluding the date upon which or the expiration of the period within which they should have been paid to and including the date upon which the moneys are paid.  The rate of interest shall be the rate stated in the Annexure and if no rate is stated the rate shall be 18 per cent per annum.  Interest shall be compounded at six monthly intervals.”

  1. WICET in support of its submission refers to Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2)[95] and Bulk Materials (Coal Handling) Pty Ltd v Compressed Air & Packaging Systems (NSW) Pty Ltd.[96]  In Spiers Murphy JA (with whom McLure P and Newnes JA agreed) considered a clause in the same terms as the present clause 42.9.  His Honour stated:

“In my view, cl 42.9 applies to liquidated sums in that it is dealing with ‘moneys due’ which ‘remain unpaid after the date upon which … they should have been paid.’ 

The clause is inapt, in my view, to apply to claims for unliquidated damages for breach of contract.”

  1. The claim in Spiers was for unliquidated damages for breach of contract. 
  2. In Bulk Materials Giles J observed:

“I do not think that BMCH’s damages for breach of contract fall within cl 23.  That clause is concerned with moneys as to which there is a time for payment or a period within which payment is to be made.  It is probably confined to times or periods for which the contract provides or which otherwise follow from provisions of the contract.”

  1. As is evident from the above passages, both Spiers and Bulk Materials concerned interest on unliquidated damages.  This is to be distinguished from the present case where the amounts claimed by CMC are for moneys owed under the Contract.  This is evident from paragraph 1 of the Prayer for Relief in the Eighth Further Amended Statement of Claim which claims moneys owed under the Contract.  WICET accepts that section 67P applies in the same circumstances as clause 42.9 but with different rates of interest.  I do not, however, accept that clause 42.9 only applies to a claim that has been certified by the Personal Representative.  Specifically, I do not accept WICET’s submission that clause 42.9 is designed to apply to a principal who, despite certification, refuses to pay the amount certified.[97]  Clause 42.9 forms part of clause 42 which deals with certificates and payments.  Clause 42.1 identifies the process and timing for the giving of a payment claim.  The sixth paragraph of clause 42.1 provides:

“Subject to the provisions of the Contract, including cl 42.10, within five Business Days of when the Principal’s Representative issues a payment certificate, the Principal shall pay to the Contractor or the Contractor shall pay to the Principal, as the case may be, an amount not less than the amount shown in the certificate as due to the Contractor or to the Principal as the case may be.”

  1. The seventh paragraph of clause 42.1 however provides:

“A payment made pursuant to this Clause shall not prejudice the right of either party to dispute under Clause 47 whether the amount so paid is the amount properly due and payable and on determination (whether under Clause 47 or as otherwise agreed) of the amount so properly due and payable, the Principal or Contractor, as the case may be, shall be liable to pay the difference between the amount of such payment and the amount so properly due and payable.”

  1. Paragraph 8 of clause 42.1 is also relevant.  It provides:

“Payment of moneys shall not be evidence of the value of work or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only, except as provided by Clause 42.8.”

  1. Clause 47 deals with dispute resolution and provides in clause 47.4 that if the dispute is not resolved either party may commence legal proceedings.  CMC by these proceedings claims those moneys properly due and payable pursuant to the Contract. 
  2. I accept CMC’s submission that when these clauses are read with clause 42.9 it is evident that progress claims and progress payments are provisional only, not final and binding.  In particular CMC relies on the words in paragraph 8 of clause 42.1 “on account only” and the words in clause 42.9 “if any moneys due to either party remain unpaid after the date upon which … they should have been paid, then interest shall be payable thereon.”  CMC submits, and I accept, that if a court or an arbitrator later determines what amount should have been paid at an earlier time, then interest should apply to that amount.  That is, the final determination by a court has, in effect, retrospective effect for adjusting amounts owing between the Principal and the Contractor to which interest under clause 42.9 applies.[98] 
  3. WICET accepts that the payment claims and subsequent certified payments under clause 42 are intended to be provisional only.[99]  WICET does not however accept CMC’s submission that any later determination by a court or an arbitrator obliges the Principal to pay interest under the Contract retrospectively.  WICET’s construction of clause 42 and in particular clauses 42.1, paragraphs 1, 2 and 7, is that liability to pay interest only accrues as at the date or time that the claim is determined.[100]  In support of this construction WICET emphasises the words in paragraph 7 of clause 42.1:

“… on determination (whether under Clause 47 or as otherwise agreed) of the amount so properly due and payable, the Principal or Contractor, as the case may be, shall be liable …”

  1. Both parties refer to the decision of Jackson J in Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous & Ors.[101]  In that case his Honour was dealing with an application to strike out parts of a statement of claim.  The plaintiff was seeking to recover alleged overpayments to the first and second defendants pursuant to an adjudication certificate under the Building and Construction Industry Payments Act 2004 (Qld).  Recovery was also sought against the fourth defendant as the guarantor and indemnifier of the first and second defendant’s liability to the plaintiff.  The strike out was sought on the basis that any liability of the fourth defendant as guarantor and indemnifier had not yet arisen.  The adjudication applications were made in relation to two construction contracts which contained clauses in similar terms to clauses 42.1 and 42.9 of the Contract.  The plaintiff sought to rely on clause 42.9 as supporting a submission that the liability of the fourth defendant as a guarantor and indemnifier had arisen.  Jackson J did not accept this submission:[102]

[44] As to interest, the respondent submits that because under cl 42.9 interest is payable upon moneys due to either party that remain unpaid after the date upon which or the expiration of the period within which they should have been paid, it would be uncommercial if a recoverable overpayment is not payable under the 9th par of cl 42.1 until a determination is made under cl 47.

[45] In my view, it is not necessarily uncommercial if interest is not payable under cl 42.9 upon a claimed but uncertified amount under cl 42.1 before a dispute about the certification is resolved under cl 47.

[46] That view is, I think, supported by the fact that cl 47.3 in AS2124-1992 expressly provides for an arbitrator to award whatever interest the arbitrator considers reasonable which would include an amount calculated from the date on which it should have been originally allowed.”

  1. The present Contract does not contain an equivalent provision to that identified by his Honour in clause 47.3 above.  The decision is of limited assistance in determining when interest is payable as this was not the issue Jackson J was required to determine. 
  2. The amounts I have determined as payable by WICET to CMC in respect of CMC’s various claims are amounts which are due and payable under the Contract.  They are, for the purposes of clause 42.9, moneys which “should have been paid”.  In accordance with the seventh paragraph of clause 42.1 WICET, as Principal, is liable to pay the difference between the amount already paid and the amount “so properly due and payable”.  Interest should therefore accrue from the date when such payment should have been made rather than from the date of determination.
  3. I have previously determined that CMC is entitled to interest payable pursuant to section 67P of the QBCC Act.[103]  Section 67P(1) sets out the circumstances in which the section applies.  One of those requirements is under 67P(1)(a), namely that the contracting party for a building contract is required to pay an amount (the progress amount).  Section 67A of the QBCC Act defines “progress payment” by reference to the Building and Construction Industry Payments Act 2004.  That Act defines “progress payment” to mean a payment to which a person is entitled under section 12.  Section 12 provides:

“Rights to progress payments

From each reference date under a construction contract, a person is entitled to a progress payment if the person has undertaken to carry out construction work, or supply related goods and services, under the contract.”

  1. Section 13 deals with the amount of progress payment and provides that the amount of a progress payment to which a person is entitled in relation to a construction contract is the amount calculated under the contract.
  2. There are a number of cases that have considered section 13 and specifically rejected the notion that the term “the amount calculated under the contract”, as that expression appears in section 13, is limited to the amount calculated by a superintendent or personal representative.  In Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors[104] McMurdo J (as his Honour then was) stated:

[23] By cl 42.1 of this contract the Contractor may make a progress claim for ‘the value of the work carried out by the contractor in the performance of the contract to that time together with all amounts then due to the Contractor arising out of or in connection with the contract or for any alleged breach thereof’. The Superintendent is to assess the claim and issue a payment certificate stating the amount of the payment which, in the opinion of the Superintendent, is to be made. The Superintendent is to set out in the certificate ‘the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference’. It then provides that provided the Contractor has issued a valid tax invoice for the certified amount, there should be paid an amount not less than that shown on the payment certificate. The contract thereby provides a regime for the assessment of a progress claim and the calculation of the amount to which the Contractor is then entitled.

[24] The Principal argues that ‘the amount calculated under the contract’, as that expression appears in s 13, is whatever was the amount in fact calculated by the Superintendent.  The Contractor’s argument, which the adjudicator accepted, is that s 13 refers to the amount which should have been calculated under the contract and not the amount in fact calculated. The authorities, with one exception, are against the Principal’s argument and in favour of the adjudicator’s interpretation of s 13. The first of these cases is the judgment of McDougall J in Abacus v Davenport. In Transgrid v Siemans Ltd, Hodgson JA (with whom Mason P and Giles JA agreed) said that although he did not have to decide the matter, he preferred the reasoning in Abacus to that of Macready AJ who at first instance in Transgrid disagreed with Abacus. It is the judgment of Macready AJ upon which the Principal here strongly relies, it being the only authority cited for its argument. Hodgson JA adhered to the same view in John Holland Pty Ltd v Roads & Traffic Authority of New South Wales8, and Beazley and Basten JJA agreed. Hodgson JA said:

‘38 I note that in Transgrid v. Siemens Limited [2004] NSWCA 395, (2004) 61 NSWLR 521 at [35], I expressed the view (obiter) to the effect that “calculated in accordance with the terms of the contract” meant calculated on the criteria established by the contract, and did not mean reached according to mechanisms provided by the contract; and I adhere to that view as being more in accord with the use of the word “calculated” and with the prohibition in s.34 of the Act on contracting out of the effect of the Act. On the other view, contractual provisions denying progress payments for construction work otherwise than as certified by a superintendent or in accordance with review procedure provided by the contract could in my opinion have the effect of restricting the operation of the Act, and thus be made void by s.34. I do not think the legislature intended to make such usual provisions void’.

Basten JA said:

‘A further fact which gives support to the conclusion set out above is that, as explained by Hodgson JA at [40], Part 2 of the Building Payment Act, and in particular the right to a progress payment conferred by s 8 and the calculation of the amount in accordance with ss 9 and 10, suggests that the statutory right to payment is unaffected by calculations undertaken by Superintendent or other authority appointed to value work under the contract. In other words, the statutory regime is, partly, though not of course wholly, independent of the terms of the construction contract and is intended to operate according to its own statutory terms: see the prohibition on contracting out in s 34’.

I am not persuaded that this interpretation of the equivalent of s 13 of the Payments Act, and in particular the expression “amount calculated under the contract” is wrong. There was no error by the adjudicator in applying these authorities and holding that the Contractor was entitled to a progress payment which he could calculate on the criteria established by the contract.”[105]

  1. The words in section 67P(1)(a) “is required to pay an amount” should therefore be understood as a reference to what the contract required to be paid.  Section 67P operates in a similar way to clause 42.9 in that in both instances interest is payable on the amount that was due and payable under the contract.

(c) Interest on amounts owed to CMC

  1. WICET submits that even if the Court determines that CMC is entitled to interest under section 67P of the QBCC Act, CMC should not be entitled to such interest on claims not made under the Contract.  There is no dispute between the parties that the Piling Claim, Bebo Arch Claim, Environmental Management Claim and Geolon 600 Claim are claims made under the Contract pursuant to clause 40.1.  It is also common ground that in relation to the Geolon 600 Claim interest should run from 8 June 2012 and in relation to the other three claims from 2 January 2013.[106]  In accordance with section 67P CMC is entitled to interest on the amounts of these claims from these dates until payment.
  2. As to the Piling Hammer Claim, CMC in its reply submissions accepts that it did not make this claim until the Second Further Amended Statement of Claim filed on 19 December 2014.[107]  Accordingly, CMC is only entitled to interest on the Piling Hammer Claim ($639,258.58) pursuant to section 58 the Civil Proceedings Act.  CMC submits that interest should accrue from 15 business days after the claim was made, namely 14 January 2015.  WICET identifies the relevant date as 27 December 2015, being the date of the second further amended defence and counterclaim.  I will allow interest on the Piling Hammer Claim from 14 January 2015 to the date of judgment pursuant to section 58 of the Civil Proceedings Act.  This date is the appropriate date as, pursuant to section 58(3), CMC is entitled to interest from when the cause of action arose.
  3. As to the Earthworks Claim, WICET submits that this claim (Variation 141) as finally agitated in CMC’s pleading, bears little resemblance to the claim made under the Contract and advanced for the majority of the proceedings.[108]  According to WICET it was not until 5 January 2016 that CMC:
  1. introduced the concept of non-critical delay into the claim for Variation 141;
  1. pleaded a delay commencing from 14 October 2011 to 4 November 2011 (which accounts for 22 of the 30 days awarded in respect of Delay Events 1 and 2).[109]

In the result WICET submits that even if section 67P of the QBCC Act applies in principle, the section should not apply to the Earthworks Claim because the claim as determined by the Court is so significantly different to the claim made under the Contract.

  1. CMC submits that it first claimed Variation 141 on 19 November 2012 and subsequently in Payment Claim 15.  According to CMC it is irrelevant as to its entitlement to interest whether the quantification changed during the proceedings:

“[I]ndeed, that would be expected as experts are appointed and issues are ventilated.  Had WICET properly assessed and paid Variation 141, CMC would have been paid on 2 January 2013.”[110]

  1. I accept CMC’s submission.  First, the amount of the Earthworks Claim that the Court has determined is an amount that was payable under the Contract pursuant to clause 33.1 or clause 34.1.[111]  It is an amount captured by section 67P(1)(a) as a “progress amount” as that term is discussed in [154] to [157] above.  Secondly, both parties refer to Exhibit 115, which is CMC’s first substantial articulation of Variation 141.  This document is entitled “Bulk Earthworks Variation” and is dated 19 November 2012.  An examination of paragraphs 4-6, 10-12, 28, 38, 218-220 and 225-226 of Exhibit 115 sufficiently demonstrates, in my view, that the Earthworks Claim as determined was not so different in substance as to deprive CMC of interest.  CMC submits and I accept, that had WICET properly assessed and paid Variation 141, CMC should have been paid on 2 January 2013.  CMC is therefore entitled to interest pursuant to section 67P of the QBCC Act in respect of the Earthworks Claim ($1,549,509) from 2 January 2013 to the date of payment.[112]

(d) Interest on late payments

  1. CMC seeks interest in respect of late payments received from WICET concerning relevantly the Bebo Arch, the Environmental Management Claim and the Geolon 600 Claim.[113] 
  2. In order to understand this claim it is helpful to refer, by way of example, to the Environment Management Claim (Variation 90).  The Court has determined that WICET is liable to pay CMC $69,746.05 for this claim calculated by reference to CMC’s claim for $224,363.72 less the amount WICET had already paid to CMC.  This was an amount of $154,617.67 paid on 22 February 2013.  CMC claims interest pursuant to section 67P of the QBCC Act for the period between 2 January 2013 and 22 February 2013, on the basis that it made a claim for Variation 90 on 7 December 2012 which ought to have been paid by 2 January 2013.  CMC has deducted from its interest calculation any interest already paid by WICET. 
  3. The amount of $154,617.67 together with interest in the amount of $1,016.66 was paid by WICET to CMC in accordance with the determination of an adjudicator in respect of a payment claim made by CMC dated 7 December 2012.  The adjudicator also determined that the date for payment was 30 January 2013, not 2 January 2013, on the basis that the fourth paragraph of clause 42.1 applied.  The adjudication decision was not challenged by CMC.[114]
  4. CMC’s claim for interest on late payments should not be permitted.  Its claim for interest pursuant to section 67P of the QBCC Act, as pleaded in paragraph 225G of the Eighth Further Amended Statement of Claim, only seeks interest “on any moneys held to be due and payable” by WICET to CMC.  Taking Variation 90 as an example, the amount that the Court has determined as payable by WICET to CMC is the amount of $69,746.05.  CMC has not made any claim for additional interest on amounts already paid under the Contract.  Further as correctly submitted by WICET, CMC’s claim for interest raises factual issues because it appears the parties typically operated on the basis of an approximate 30 day payment period, similar to that provided in the fourth paragraph of clause 42.1.  I accept WICET’s submission that CMC should not be permitted to raise this new claim at this stage.[115]

(e) WICET’s submission that interest shall be awarded on the judgment sum only

  1. WICET, by reference to section 58(3) of the Civil Proceedings Act, submits that the section by its terms only authorises interest on “the amount” for which judgment is given.  The amount for which judgment is given depends upon whether the Court gives judgment for one amount (being the balance of the claim and the counterclaim) pursuant to rule 184 of the Uniform Civil Procedure Rules 1999 or whether it gives judgment for an amount in each proceeding.[116]  Rule 184 provides: “If a defendant establishes a counterclaim against the plaintiff and there is a balance in favour of 1 of the parties, the court may give judgment for the balance.”
  2. The Court has a discretion.  I would exercise the discretion in the present case to give judgment for an amount in each proceeding.  This is because I have determined that CMC is entitled to interest pursuant to section 67P of the QBCC Act in respect of the Earthworks Claim, the Piling Claim, the Bebo Arch Claim, the Environmental Claim and the Geolon 600 Claim.  For some of these claims the date from which interest accrues varies.  Further, such interest pursuant to section 67P runs until payment is made.  The only CMC claim which attracts interest under section 58(3) is the Piling Hammer Claim.  In such circumstances it is appropriate to give judgment for an amount in each proceeding.
  3. This exercise of discretion does, however, inform WICET’s claim for interest pursuant to section 58(3) in respect of its counterclaim concerning the Delay Claim and the Final Certificate.

(f) WICET’s claim for interest on the counterclaim

  1. The Court has determined that the amount of $1,782,162.01 is payable by CMC to WICET in respect of WICET’s counterclaim concerning the Final Certificate.
  2. WICET seeks interest on this amount pursuant to section 58(3) of the Civil Proceedings Act from 15 May 2014 to the date of judgment.  The Final Certificate was issued under the Contract on 7 May 2014.  The commencement date of 15 May 2014 is arrived at by reference to the sixth paragraph of clause 42.1 of the Contract which requires payment within five business days of the issuing of a payment certificate. 
  3. CMC submits that the Court should award no interest to WICET, because it has not in fact been kept out of any moneys owing to it.[117]  This is because the effect of the Court’s decision in this case is that the Final Certificate should have certified a net amount owing from WICET to CMC.  Accordingly, CMC submits that interest on WICET’s Final Certificate counterclaim only accrues from the date of judgment.[118] 
  4. The difficulty with this submission is that CMC has sought and been awarded interest on the amounts it has claimed under the Contract from the dates that those claims should have been paid.  In circumstances where the totality of those claims would have been reduced by the amount payable by CMC to WICET pursuant to the Final Certificate, it would be unjust to deprive WICET of interest from 15 May 2014.  WICET is entitled to interest pursuant to section 58(3) on the amount of $1,782,162.01 from 15 May 2014 to the date of judgment.
  5. WICET is also entitled to interest pursuant to section 58(3) on its counterclaim in respect of the Delay Claim.  Interest should accrue from the date the overpayment for the Delay Claim was made.  WICET has paid to CMC the amount of $4,087,233.21 for the Delay Claim as follows:
  1.  $3,629,203.12 on 22 February 2013;
  1.  $458,000 on 17 June 2013.

Based on the revised Exhibit 427 in accordance with the Reasons of the Court of Appeal, the value of the Delay Claim is              with the result that           is payable to WICET.  In terms of the commencement date for interest I have simply selected the midpoint between 22 February 2013 and 17 June 2013, which is 20 April 2013.

Disposition

CMC’s Claim:

  1. Judgment for CMC against WICET in the sum of $3,562,586.38 plus GST in the amount of $356,258.65 together with interest as follows:
  1. Earthworks Claim – interest on $1,549,509.00 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;
  1. Piling Claim – interest on $262,575.00 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;
  1. Bebo Arch Claim – interest on $822,479.75 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;
  1. Environmental Management Claim – interest on $69,746.05 pursuant to section 67P of the QBCC Act from 2 January 2013 to the date of payment;
  1. Geolon 600 Claim – interest on $219,018.00 pursuant to section 67P of the QBCC Act from 8 June 2012 to the date of payment;
  1. Piling Hammer Claim – interest on $639,258.58 pursuant to section 58 of the Civil Proceedings Act from 14 January 2015 to the date of judgment.
  1. The payment by WICET of GST in the amount of $356,258.65 is conditional on CMC issuing a valid tax invoice.
  1. Order that WICET return to CMC ANZ Bank Guarantee Number DG 79323115 within seven days from the date of judgment.

WICET’s Counterclaim:

  1. Judgment for WICET against CMC in the sum of $2,936,844.61 together with interest as follows:
  1. Final Certificate – interest on $1,782,162.01 pursuant to section 58 of the Civil Proceedings Act from 15 May 2014 to the date of judgment;
  1. Delay Claim – interest on $1,154,682.60 pursuant to section 58 of the Civil Proceedings Act from 20 April 2013 to the date of judgment.

Costs

  1. I will hear the parties as to costs.


ANNEXURE A

 

REVISED EXHIBIT 427 IN ACCORDANCE WITH COURT OF APPEAL’S REASONS

Delay

Event

Dates of Impacted Delay

Duration

Reasonable Rate Valuation

Average Daily Rate

9a

14-Aug-12 to 18-Sep-12

35

$687,220.64

$19,634.88

9b

19-Sep-12 to 26-Sep-12

8

$167,812.92

$20,976.62

9c

17-Sep-12 to 17-Sep-12

1

$20,393.49

$20,393.49

9d

13-Oct-12 to 02-Dec-12

46

$601,493.07

$13,075.94

9e

14-Dec-12 to 12-Feb-13

61

$664,192.79

$10,888.41

10

22-Jan-13 to 11-Feb-13

21

$287,603.29

$13,695.39

11

13-Feb-13 to 20-Feb-13

8

$109,067.98

$13,633.50

TOTAL

180

$2,537,784.18

 

Average daily rate:

$15,964.69

Weighted average daily rate:

$14,098.80

Weighted average rate x 208 days of delay:

$2,932,550.61

 

CALCULATIONS FOR EXHIBIT 427 AND DELAY VALUATION

-

9a

9b

9c

9d

9e

10

11

 

-

14-8-12 to 18-9-12

19-9-12 to 26-9-12

17/09/2012

13/10/12 to 2/12/12

14/12/12 – 12/02/13

22/1/13 – 11/2/13

13/2/13 – 20/2/13

 

-

35

8

1

46

61

21

8

 

1

 

 

 

 

 

 

 

 

2

 

 

 

$9,100

$20,020

 

 

 

3

 

 

 

$5,110

$24,820

$10,950

$2,555

 

4

 

 

 

 

 

 

 

 

5

 

 

 

 

 

 

 

 

6

 

 

 

 

 

 

 

 

7

 

 

 

 

 

 

 

 

8

 

 

 

$3,750

$30,625

$11,875

 

 

9

 

 

 

$8,750

 

 

 

 

10

 

 

 

 

 

 

 

 

11

 

 

 

$2,400

$3,600

 

 

 

12

 

 

 

$2,560

 

 

 

 

13

 

 

 

 

$28,085

$17,125

$2,740

 

14

 

 

 

 

$54,560

$27,280

$7,440

 

15

 

 

 

 

$4,800

$4,800

$2,400

 

16

 

 

 

 

$1,360

$1,360

 

 

17

 

 

 

$6,800

 

 

 

 

18

 

 

 

$1,020

 

 

 

 

19

 

 

 

$3,840

$7,280

$2,320

$1,120

 

20

 

 

 

 

 

 

 

 

21

 

 

 

 

 

 

 

 

22

 

 

 

 

 

 

 

 

23

 

$1,080

$180

$2,160

$7,560

$3,060

$1,440

 

24

 

 

 

 

 

 

 

 

25

 

 

 

$3,920

$5,180

$2,240

$840

 

26

 

 

 

 

 

 

 

 

27

 

 

 

$3,000

 

 

 

 

28

 

 

 

 

 

 

 

 

29

 

 

 

 

 

 

 

 

29A

 

 

 

 

 

 

 

 

30

$7,200

$1,600

$200

$9,200

$12,200

$4,200

$1,600

 

31

 

 

 

$19,525

 

 

 

 

32

 

 

 

$2,270.50

 

 

 

 

33

 

 

 

$1,422.90

$474.20

 

 

 

34

$2,156.40

$479.20

$59.90

$3,054.90

$3,653.90

$1,257.90

$479.20

 

35

$3,420.72

$760.16

$95.02

$4,846.02

$5,796.22

$1,995.42

$760.16

 

36

 

 

 

 

 

 

 

 

37

$629.64

$139.92

$17.49

$891.99

$1,066.89

$367.29

$139.92

 

38

$571.68

$127.04

$15.88

$809.88

$968.68

$333.48

$127.04

 

39

$1,440.00

$320.00

$40

$2,040

$2,440

$840

$240

 

40

$277.20

$61.60

$7.70

$392.70

$469.70

$161.70

$61.60

 

41

 

 

 

 

 

 

 

 

Total adjustments

$15,695.64

$4,567.92

$615.99

$96,863.89

$214,959.59

$90,165.79

$21,942.92

 

Exhibit 427 Valuation

$671,525.00

$163,245.00

$19,777.50

$504,629.18

$449,233.20

$197,437.50

$87,125.06

 

Exhibit 427 daily rate

$19,186.43

$20,405.63

$19,777.50

$10,970.20

$7,364.48

$9,401.79

$10,890.63

 

Total Revised Valuation

$687,220.64

$167,812.92

$20,393.49

$601,493.07

$664,192.79

$287,603,29

$109,067.98

 

Average daily rate

$19,634.88

$20,976.62

$20,393.49

$13,075.94

$10,888.41

$13,695.39

$13,633.50

 

Original weighted average

 

 

$11,627.63

Revised Weighted average

 

 

$14,098.80

 

CMC recovery based on 208 days’ delay

$ 2,932,550.61

Less: amounts already paid

$4,087,233.21

TOTAL TO CMC

-$1,154,682.60

 

Footnotes

[1] Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85.

[2] Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 2) [2017] QSC 218 (the “October Reasons”).

[3]  [2017] QCA 296 at [64].

[4]  Annexure A to CMC’s Supplementary Submissions (Post-Appeal).

[5]  CMC’s Further Submissions, [21(a)].

[6]  CMC’s Further Submissions, [22].

[7]  CMC’s Supplementary Submissions (Post-Appeal), [2]-[4]; CMC’s Supplementary Submissions in Reply (Post-Appeal), [1].

[8]  [2017] QCA 296 at [51].

[9]  [2017] QCA 296 at [55].

[10]  [2017] QCA 296 at [52].

[11]  [2017] QCA 296 at [53]-[55].

[12]  [2017] QCA 296 at [64].

[13]  WICET’s Post-Appeal Submissions, [8].

[14]  Delay Events 9a, 9b, 9c, 9d, 9e, 10 and 11.

[15]  CMC’s Supplementary Submissions (Post-Appeal), [8].

[16]  Three in category (a) and four in category (d).

[17]  Six in category (a) and two in category (d).

[18]  Exhibit 2, CMC 027.004.0008.

[19]  T16-16, lines 9-11; T16-19, lines 5-9.

[20]  Schedule C-9 to the Contract (Exhibit 2A, CMC.508.001.1786 at 1842-1844) and Special Condition 18 (Exhibit 2A, CMC.508.001.1974 at 1982).

[21]   Exhibit 422, CMC.503.007.2852; Exhibit 422, CMC.505.016.8180; Exhibit 2, CMC.504.005.4294; Exhibit 2, CMC.505.016.7609; Exhibit 2, CMC.502.061.2851; Exhibit 2, CMC.502.015.3042; Exhibit 2, CMC.505.083.8385.

[22]   Exhibit 2, CMC.027.004.001.

[23]  Exhibit 2, CMC.508.002.1301 at 1311.

[24]   Exhibit 2, CMC.501.016.7859 at 7909; Exhibit 2, CMC.502.015.3786 at 3805; Exhibit 2, CMC.502.036.2234 at 2245; Exhibit 2, CMC.502.061.9248 at 9260.

[25]   CMC.002.008.0106; CMC.002.008.0107; CMC.002.008.0108; CMC.002.008.0109; CMC.004.007.0035; CMC.505.084.2398; CMC.004.007.0036; CMC.004.007.0037; CMC.508.002.1016 at .1025; CMC.502.062.0001; CMC.508.002.1016 at .1026; CMC.508.002.1016 at .1023 and .1024.

[26]  Exhibit 2, CMC.508.002.1301.

[27]  Exhibit 422, CMC.505.016.7326.

[28]  See [27] above.

[29]  Exhibit 286, CMC.514.002.0136 at 0161.

[30]  Exhibit 304, CMC.505.017.6127.

[31]   Exhibit 422, CMC.505.087.4741.

[32]  Exhibit 2, CMC.508.002.1301.

[33]  CMC’s Schedule of Errors and Omissions in Overheads Spreadsheet, page 14.

[34]  Exhibit 2, CMC.5082.1301 at 1313.

[35]  WICET’s Further Submissions, Annexure 3, page 7.

[36]   Exhibit 422, CMC.502.063.0842.

[37]  Exhibit 421, CMC.004.006.0308.

[38]  CMC.004.006.0289.

[39]  CMC’s Schedule of Errors and Omissions in Overheads Spreadsheet, page 14, footnote 6.

[40]  Exhibit 2, CMC.508.002.1301 at 1313.

[41]  21 January 2013-25 January 2013 (five days); 29 January 2013-31 January 2013 (three days); 1 February 2013‑2 February 2013 (two days); 4 February 2013-8 February 2013 (five days); 11 February 2013‑15 February 2013 (five days).

[42]  Exhibit 2, CMC.505.036.2240, CMC.505.029.6702, CMC.505.029.6703, CMC.505.095.3214, CMC.505.095.3215.

[43]  WICET’s Further Submissions, Annexure 3, page 7.

[44]  Exhibit 421, CMC.508.002.0896 at 0898, CMC.508.002.0905 at 0914 and CMC.508.002.0918 at 0919.

[45]   Exhibit 2, CMC.502.036.2234 at 2245; Exhibit 2, CMC.502.061.9248 at 9260.

[46]  Exhibit 209, CMC.513.002.0023.

[47]  Exhibit 422, WIC.206.028.7057.

[48]  Exhibit 2, CMC.502.036.2234 at 2245.

[49]   Exhibit 421, CMC.508.002.0905 at 0917.

[50]   Exhibit 2, CMC.502.036.2234 at 2245; Exhibit 2, CMC.502.061.9248 at 9260.

[51]    Exhibit 2, CMC.027.004.0008.

[52]    CMC.002.008.0090, CMC.004.007.0043.

[53]   CMC.502.015.3786 at .3805, CMC.502.036.2234 at 2245 and CMC.502.061.9248 at 9260.

[54]   See, eg, Exhibit 421, CMC.013.014.0117.

[55]  Exhibit 208, CMC.514.002.0141.

[56]  T14-43, lines 43-44.

[57]  CMC.004.007.0026.

[58]   CMC.508.002.1154.

[59]  CMC’s Further Submissions, [35].

[60]  [2017] QSC 85 at [831].

[61]  CMC’s Schedule of Errors and Omissions in Overheads Spreadsheet, page 37.

[62]  Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (2013) 41 VR 636 at [28].

[63]  CMC’s Supplementary Submissions in Reply (Post-Appeal), [3].

[64]  WICET’s Post-Appeal Submissions, [10].

[65]  [2017] QSC 85 at [487].

[66]  CMC’s Further Submissions, [54]; WICET’s Further Submissions, [50]-[51].

[67]   WICET’s Further Submissions, [45]-[46].

[68]  CMC’s Reply Submissions, [12(b)].

[69]  WICET’s Further Submissions, [52]-[59]; CMC’s Reply Submissions, [14]-[16] and Annexure 4.

[70]   CMC’s Further Submissions, [94]; WICET’s Further Submissions, [60]-[61].

[71]  [2009] VSC 585; WICET’s Further Submissions, [61].

[72]  CMC’s Further Submissions, [55].  Statement of Claim, [225A]-[225E].

[73]  CMC’s Further Submissions, [59]-[60].

[74]  WICET’s Further Submissions, [109].

[75]  (2013) 29 BCL 476; [2013] NSWCA 104.

[76]  (2013) 29 BCL 476 at [43].

[77]  WICET’s Further Submissions, [110(b)].

[78]  LexisNexis Australian Legal Dictionary, 2nd ed, 2016.

[79]  Transcript, 21 August 2017, T2-32, line 35 to T2-33, line 15.

[80]  WICET’s Further Submissions, [110(a)].

[81]  [2017] QSC 219 at [182]-[183].

[82]  Citing John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Haines v Bendall (1991) 172 CLR 60, 66; Bonython v The Commonwealth (1948) 75 CLR 589, 606.

[83]  Citing MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663; Batchelor v Burke (1981) 148 CLR 448, 455; Ruby v Marsh (1975) 132 CLR 642, 644.

[84]  Citing Fire & All Risk Insurance Co Ltd v Callinan (1978) 140 CLR 427, 432; Bennett v Jones [1977] 2 NSWLR 355, 375.

[85]  CMC’s Further Submissions, [70]-[71].

[86]  CMC’s Further Submissions, [72].

[87]  Queensland, Parliamentary Debates, Legislative Assembly, 21 July 1990, 2770 at 2772.

[88]  Explanatory Notes, Queensland Building Services Authority Amendment Bill 1999 at 24.

[89]   Civil Proceedings Act 2011 (Qld) s 58(2)(b).

[90]  CMC’s Further Submissions, [71] citing Commonwealth v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 427 at 464.

[91]  Section 58(2)(b) and section 58(3) of the Civil Proceedings Act 2011.

[92]  Defence, 244(a).

[93]  Defendant’s Further Submissions, [76].

[94]  Defendant’s Further Submissions, [69]-[71].

[95]   (2012) 287 ALR 360; [2012] WASCA 53 at [24] and [245].

[96]  (1997) 14 BCL 109 (NSWSC) at 136 (Giles J).

[97]  Defendant’s Further Submissions, [74].

[98]  Transcript, 28 July 2017, T1-25, lines 8-26.

[99]  Transcript, 21 August 2017, T2-66, line 39.  See also Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49 at [18] and [21]; Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2015] QSC 309 at [15] and [42] (Jackson J).

[100]  Transcript, 21 August 2017, T2-67, lines 39-47.

[101]  [2015] QSC 309.

[102]  [2015] QSC 305 at [44]-[46].

[103] Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 at [906].

[104]  [2008] QSC 58.

[105]  See also Gambaro Pty Ltd as Trustee for the Gambaro Holdings Trust v Rohrig (Qld) Pty Ltd; Rohrig (Qld) Pty Ltd v Gambaro Pty Ltd [2015] QCA 288 at [31] (Fraser JA, with whom Morrison JA and Boddice J agreed); SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119 at [75]-[83].

[106]  WICET’s Further Submissions, [92].

[107]  CMC’s Submissions in Reply, [20].

[108]  WICET’s Further Submissions, [93], Annexure 7.

[109]  WICET’s Further Submissions, [93].

[110]  CMC’s Reply Submissions, [20].

[111]  See Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 at [198]-[201].

[112]  See Eighth Further Amended Statement of Claim, [225G(c)], where CMC claims interest pursuant to section 67P to the date of actual payment; see also QBCC Act s 67P(2), which refers to interest being payable for each day the amount is unpaid.

[113]  CMC’s Further Submissions, [87].

[114]  WICET’s Further Submissions, [105a]; Adjudication Decision, [395]-[399].

[115]  WICET’s Further Submissions, [107].

[116]  WICET’s Further Submissions, [86]-[87].

[117]  CMC’s Reply Submissions, [19].

[118]  CMC’s Further Submissions, [85].

Close

Editorial Notes

  • Published Case Name:

    Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 3)

  • Shortened Case Name:

    Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 3)

  • MNC:

    [2018] QSC 60

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    26 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 85 19 May 2017 Substantive Judgment on liability: Flanagan J.
Primary Judgment [2017] QSC 218 06 Oct 2017 Application by plaintiff to re-open case granted: Flanagan J.
Primary Judgment [2018] QSC 60 26 Mar 2018 Final Judgment: Flanagan J.
Notice of Appeal Filed File Number: Appeal 10845/17 16 Oct 2017 Appeal from [2017] QSC 218
Notice of Appeal Filed File Number: Appeal 4068/18 16 Apr 2018 Plaintiff's appeal from [2018] QSC 60.
Notice of Appeal Filed File Number: Appeal 4286/18 20 Apr 2018 Defendant's appeal from [2018] QSC 60.
Appeal Determined (QCA) [2017] QCA 296 04 Dec 2017 Appeal from [2017] QSC 218 (application by plaintiff to re-open case) granted: Fraser, Gotterson and McMurdo JJA.
Appeal Determined (QCA) [2018] QCA 78 27 Apr 2018 Defendant's application for an indemnity certificate (following [2017] QCA 296). Application refused: Fraser, Gotterson and McMurdo JJA.

Appeal Status

{solid} Appeal Determined (QCA)