Prosser v Kimama Holdings Pty Ltd
[2015] QCAT 77
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- Unreported Judgment
- Prosser v Kimama Holdings Pty Ltd[2015] QCAT 77
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Prosser v Kimama Holdings Pty Ltd[2015] QCAT 77
Prosser v Kimama Holdings Pty Ltd[2015] QCAT 77
CITATION: | Prosser v Kimama Holdings Pty Ltd T/A Visual Diversity Homes [2015] QCAT 77 |
PARTIES: | Michelle Prosser (Applicant) |
v | |
Kimama Holdings Pty Ltd T/A Visual Diversity Homes (Respondent) |
APPLICATION NUMBER: | BDL052-14 |
MATTER TYPE: | Building matters |
HEARING DATE: | 13 October 2014 and 4 February 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 12 March 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent pay to the applicant the sum of $11,995.15 within 30 days of the date of order. | |
CATCHWORDS: | BUILDING MATTERS - regulated contract – variation – failure to make variation in writing – repudiation of contract – breach of contract – termination of contract by commencement of proceedings - determination of ambiguities between specifications and drawings - practical completion - certification – unsigned Form 21 – defects – assessment of damages – calculation of cost of rental premises as basis of assessment – owner excluded from occupation in breach of contract Allaro Homes Cairns Pty Ltd v O'Reilly & Anor [2012] QCA 286 Better Homes Queensland Pty Ltd v O'Reilly & Anor [2012] QCATA 37 | |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Michelle Prosser represented herself |
RESPONDENT: | Anthony Smith and Daniel Smith for the respondent company |
REASONS FOR DECISION
BACKGROUND
- [1]On 11 May 2013 the parties signed a building contract. The price stated was $199,800. The contract changed the usual stages for progress payments on the basis there was extensive site works necessary before the slab stage and retaining walls.
- [2]The parties enjoyed a good relationship prior to contract and during most of the construction, but had fallen out by the time the builder claimed practical completion stage had been achieved on 19 February 2014. The owner, Ms Prosser, disputed that that stage had been reached. She refused to pay the final payment. The builder refused to let her into the home.
- [3]She commenced these proceedings in the Tribunal. She claimed a number of things including damages for breach of contract. At initial hearing the builder’s counterclaim was for the payment due at practical completion, $19,980, plus $10,000 for a variation to the contract. Ms Prosser was still excluded from the property as at the first day of hearing and the Tribunal ordered the final payment of $19,980 be made to the builder and the builder supply and install all appliances and hand over possession to her by 18 October 2014. The parties complied. That meant the claim of the builder was reduced to claiming for the $10,000 variation.
- [4]Ms Prosser disputed the $10,000 variation. She disputed practical completion had been achieved by the builder on 19 February 2014. She claimed for the cost of air-conditioning she said was due under the contract and not supplied. She also had complaints about the retaining walls. Finally, she claimed for defective building work.
The Contract Price
- [5]Throughout April 2013 the parties negotiated the price of the build. Attachment 1 to Ms Prosser’s statement of evidence[1] is a series of emails between the parties. On 16 April 2013 she told the builder that the cost must not exceed $210,000. The builder’s price was more than that. On 22 April 2013 she suggested a number of savings including the exclusion of air-conditioning. On 24 April 2013 she told the builder her bank would only finance a contract to $200,000. On 29 April 2013 she confirmed that air-conditioning would have to “come off” the “plans”. Mr Anthony Smith for the builder asked if the finance problem was because of deposit or serviceability restrictions. Later that day he suggested that if a bigger deposit would allow her to borrow more, say $220,000, he was prepared to provide a receipt for an imaginary $5000 deposit which would increase her borrowing capacity. Ms Prosser replied that her finance had taken her savings and salary into account and $202,000 was left to fund the build.
- [6]By 2 May 2013, the contract price had been reduced to $210,800, achieved in part by removing air-conditioning from the contract. That day, strangely enough, Ms Prosser advised Mr Smith she wanted to add some things - dimmer switches in the bathrooms and media room, and wall lights above bathroom mirrors. Mr Smith asked the next day whether she was prepared to sign a contract if the additional items were included. At that stage, based on the email exchange, I conclude Mr Smith and Ms Prosser were agreed and both understood the price of the build would be $210,800.
- [7]By email on 7 May 2013 Ms Prosser said “just looking at the figures – let’s do $10K then it brings contract down to $199,800. Does that sound okay to you? Can we aim for contract by weekend?” I conclude that reference to a reduction of $10,000 was Ms Prosser’s proposal to write in the sum of $199,800 on the contract, perhaps to satisfy her bank, and she would pay the builder an additional $10,000 on top of the contract price from other funds. That is what the builder says the arrangement was. Ms Prosser disputes that. She says the total agreed price was $199,800 as stated in the contract.
- [8]The email correspondence does not, in my opinion, support Ms Prosser’s version of the agreement with the builder. In a letter of 4 November 2013 the builder refers to additional funds being contributed by Ms Prosser at lock up stage and enquires how she wants that payment invoiced.[2] Her reply on 12 November 2013 was “No discussion was ever had on when I was to pay the additional funds, I was assuming this would be paid on completion but this has yet to be negotiated.”[3]
- [9]The builder decided to treat the additional payment of $10,000 as a variation.[4] It seems a variation “order” was forwarded by the builder to Ms Prosser on 20 December 2013, although she says she hadn’t received it as at 29 January 2014.
- [10]The builder asked her to sign that document and she did on 30 January 2014. By that stage the house was nearly finished. She added a note to the document however which said “$10,000 payable by the bank at final stage/completion of the build (whichever is the latter (sic)”. Ms Prosser says she misunderstood the significance of the variation document provided for her signature. She also said she thought the variation was referring to the money she was supposed to contribute. According to the bank’s records, the only additional moneys payable by Ms Prosser was the deposit paid at the start of the job.[5]
- [11]I do not accept her evidence on this point. In so far as there is a conflict between the builder and Ms Prosser about the true contract price I prefer the evidence of the builder. The letter of 4 November 2013 clearly referred to additional money payable by her at lock up stage. It was clearly nothing to do with the deposit. Her response just as clearly shows she understood the builder was talking about additional monies payable by her at the end of the construction, not the deposit.
- [12]She also said at hearing that her reference to additional funds was a reference to payment for variations concerning a carpet upgrade and additional electrical items. In the letter of 4 November 2013 the builder also referred to “variation requests” but then went on to discuss “in addition to these issues” Ms Prosser’s contribution of “additional funds”. The letter was clear. So was Ms Prosser’s reply. I conclude Ms Prosser had agreed at the time of entering into the contract to pay an additional $10,000 in addition to the stipulated price in the contract, though without discussion as to when it would be due.
Variation
- [13]The contract is a regulated contract pursuant to s 9 of the Domestic Building Contracts Act 2000 (Qld) (DBCA). As such by s 79 variations are required to be set out in writing and signed by the parties before any domestic building work the subject of the variation is carried out.[6] By s 80 the variation document is required to state the reason for the variation; if the variation would result in a delay affecting the subject work, state a reasonable estimate for the period of delay; for a fixed price contract state the change of the contract price because of the variation or how the change of the contract price is to be worked out; and if the contract provides for progress payments, make appropriate provision for payments under the contract to reflect any change of the contract price caused by the variation.
- [14]The subject variation fails in respect of all of these legislative requisites. Additionally by s 83 as soon as practicable after a variation is agreed, the contractor must give the owner a readily legible signed copy of the variation document for the variation. That was not done. Ms Prosser said the first she saw the variation “order” was in January 2014 when it was forwarded to her for signature. By that stage most of the work under the contract had been done.
- [15]By s 84 of the DBCA a building contractor may recover an amount for a variation only if the building contractor has complied with ss 79 through 83. The ground of unforeseen circumstances may apply if the variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was entered into. Given the builder says the variation of $10,000 was agreed prior to or at the time of signing the original contract, that ground is not available here.
- [16]The contractor may also recover on its variation if the Tribunal approves recovery. However the Tribunal may only approve recovery if there are exceptional circumstances to warrant it or the building contractor would suffer unreasonable hardship if he does not recover. There was no evidence led of any exceptional circumstances applying in this case,[7] nor any evidence that the builder would suffer unreasonable hardship if the variation was not recovered.[8] That was necessary.
- [17]The variation breaches almost all the required provisions of the DBCA that apply to variations and the builder. The builder cannot recover for the variation of $10,000.
- [18]In so far as it could be argued there was a secondary agreement to pay an additional $10,000 for the building work, that secondary agreement was a regulated contract with respect to domestic building work and as such only had effect if signed by the parties and in writing.[9] It was not. The builder cannot recover his additional $10,000 on that basis either.
Air-conditioning
- [19]Ms Prosser says the parties agreed air-conditioning units would be supplied and installed as part of the contract. The builder denies that. The experts for the parties, Mr Helisma and Mr Kelly, are divided on the point.
- [20]Ms Prosser says the builder told her the reference in the specifications “location of electrical components on electrical plan” under the heading electrical was a reference to or included air-conditioning. She claims construction drawings 002 and 003 show air-conditioning units on the plans for the living room and main bedroom. Ms Prosser’s expert, Mr Helisma, concurs, and adds those units have not been added to the schedule 3 exclusions to the contract, which only mentions blinds.
- [21]The builder says the parties agreed to exclude air-conditioning when first signing the contract. Mr Kelly, the expert for the builder, agrees and says even though the drawings show air-conditioning, that is an error and there is a discrepancy between the plans and the specifications. If air-conditioning is included in a construction contract the specifications usually make express reference to it and that was not the case here.
- [22]During the negotiations for the contract, a letter of offer from the builder of 19 March 2013 included air-conditioning in the proposed price of $218,000.[10] A subsequent letter of offer dated 7 May 2013 had no such inclusion and the price was reduced to $210,800.[11] The removal of air-conditioning from the contract accords with the negotiations of the parties attempting to reduce the price. That seems fairly clear from the emails between the parties dated 22, 24, 29 and 30 April and 2 May 2013.[12] A number of extras were added to the contract shortly before signing, but they didn’t include air-conditioning.[13]
- [23]I find that the parties agreed air-conditioning would not be included in the contract. Air-conditioning was added to the drawings by the draft of 3 April 2013,[14] but after that it was taken out. I conclude leaving air-conditioning marked in drawings 002 and 003 was a mistake in light of the agreement between the parties to exclude it. I do not accept the phrase “location of electrical components on electrical plan” in the specifications is to be interpreted as air-conditioning units being part of the contract. At best in any case the phrase “location of electrical components on electrical plan” takes one to the “electricals” plan drawing 005, not drawings 002 or 003, respectively the floor plan and elevations sheet 1, and on the electricals plan 005 there is no air-conditioning noted either in the legend or in the drawing detail.
- [24]Further and in so far as necessary I note the order of precedence or interpretation of the various documents making up the contract is provided for in clause 13.6 of the contract and gives primary interpretation where there are conflicts or ambiguities between the specifications and the drawings to the former. That order of precedence appropriately applies here. There was no air-conditioning noted in the specifications.
Retaining Wall
- [25]At hearing Ms Prosser stated the issue concerning the retaining wall was no longer an issue between the parties other than as regards safety. By that she meant the wall required a fence, perhaps a swimming pool fence, on top because there was a drop of nearly 2 metres to the earth behind it in one part.
- [26]But at the same time she also said the siting and composition of the retaining walls were not in accordance with the approved drawings and that had reduced the value of her home.
- [27]The builder’s evidence is that he informed Ms Prosser before the walls were built that the southern retaining wall had to change from timber to rock, and would have to be built inside her property line because another builder building next door had already built a retaining wall, designed to benefit the adjacent land, on the common boundary. He said he told Ms Prosser that and that the position of the walls would have to be determined during their construction. The retaining walls would have to be built inside the other boundary wall. Ms Prosser denied that that was discussed. On this I again prefer the evidence of Mr Anthony Smith, the builder, to the evidence of Ms Prosser. Ms Prosser agreed they had met on site to discuss the retaining wall. In an email from Ms Prosser to the builder dated 12 November 2013 she refers to her meeting with the builder on 22 August 2013 discussing additional design work “to deal with the retaining wall”.[15] Her primary concern in the email seems to have been to ensure the builder who caused the problem building on lot 1256 (the neighbouring site) was responsible for any additional costs associated with any additional design work consequent to her retaining wall on her side of the boundary. I conclude the additional design work referred to in the email refers both to a change of construction material from timber to rock and as to the positioning of the retaining walls. In respect of the latter, I note version D[16] of the Landscape Plan created on 26 June 2013 shows a treated timber retaining wall on the southern boundary. Version E[17] of the Landscape Plan bearing date 28 August 2013 bears the additional notation “Retaining wall to be rock and determined on site” and the reference to a timber retaining wall is omitted. The plan has been initialled by Ms Prosser.
- [28]The builder has borne the additional costs associated with building the retaining wall from rock rather than timber. That is appropriate given I conclude the parties agreed to vary the contract both as to siting of the southern retaining wall and the materials to be used. That variation to the contract should have been in writing but was not as required by the DBCA and the builder could not, I anticipate, have convinced the Tribunal to allow recovery of the extra costs associated with that variation because of that deficiency.
- [29]At hearing Mr Kelly agreed a rock or boulder retaining wall could have been built in the position of the wall constructed by the builder next door, but he stated that that would have required demolition of the existing wall and negotiation with the neighbour. It would have been a costly exercise. I conclude the parties agreed that Ms Prosser’s retaining wall should be changed to rock and its position determined by the builder when building it which avoided this problem with the neighbour and his wall.
- [30]Accordingly Ms Prosser cannot now complain the value of her property has been reduced by the siting and composition of the retaining walls.
Practical Completion
- [31]The builder maintains practical completion was achieved on 19 February 2014. On 18 December 2013 the builder gave notice extending the building period to 20 February 2014 because of rain days and annual Christmas industry shutdown. I accept the builder was entitled to do that in accordance with item 10 of schedule 1 of the contract. There is no evidence the extension claimed for rain delay was not justified.
- [32]On 19 February 2014 the builder forwarded a Form 21 final inspection certificate dated 18 February 2014 to Ms Prosser together with an invoice claiming $19,980 for the practical completion stage together with an invoice for the $10,000 variation to the contract price. The Form 21 bore no signature by the certifier. Ms Prosser disputed practical completion had been achieved. The matter is confusing, which is not wholly unexpected. Mr Kelly, the builder’s expert, commented in his report of 31 October 2014[18] that the builder was poorly organised with paperwork and he failed to abide by “red tape” with approvals and certificates. I agree with the comment about poor paperwork but cannot agree that a failure to provide a duly signed and certified Form 21 necessarily involves “red tape”, certainly not in the context of this particular dispute.
- [33]The builder had arranged for a walk through or pre-handover inspection of the property – the parties diverge as to the description of this exercise - on 11 February 2014. That occurred with Ms Prosser present though there were difficulties between a friend and the brother of Ms Prosser who attended with her and the builder. After an argument it appears the builder excluded those other individuals from the premises. The builder prepared a defects list based on that attendance.[19] The builder maintained there were no major defects to prevent practical completion occurring. The builder forwarded the unsigned Form 21 and variation invoice on 19 February 2014 together with an invoice for practical completion stage. Ms Prosser objected that there were numerous defects and accordingly practical completion stage had not been reached. She prepared a long list of defects on 20 February 2014 and the builder subsequently responded that they were only minor defects and gave estimated dates when they would be remedied.
- [34]The builder arranged for an independent inspection by an independent expert, Handovers.com, to be done. Handovers.com concluded that there were minor defects but practical completion had otherwise been achieved.[20]
- [35]The joint experts in their joint report conclude that other than for the issue of the unsigned Form 21, and the air-conditioning, they agreed that the defects that existed as at 19 February 2014 were minor. Clause 38 of the contract states the term practical completion has the same meaning as it has in schedule 2 to the contract. By schedule 2 practical completion is defined as “the stage when the works: (a) have been completed in accordance with this contract and all relevant statutory requirements apart from minor defects or minor omissions; and (b) are reasonably suitable for habitation.”
- [36]A major issue between the parties throughout has been the validity or otherwise of the Form 21 final inspection certificate issued by the certifier. The certificate bears no signature. One wonders whether the certifier gave the local government a copy of the inspection documentation within five days after the giving of that final inspection certificate as required by the Building Act 1975 (Qld).[21] Unfortunately neither party called evidence from the certifier to clarify whether the certificate was certified as claimed by the builder on 18 February 2014. Often the owner will also be supplied with a copy of the Form 21 by the certifier after it issues, but that does not seem to have happened here. Mr Kelly reported that he had sighted the signed Form 21 dated 18 February 2014. But Mr Kelly did not say whether the document was so signed and certified on the date the document bears. That was evidence Mr Oliver the certifier could have given, but he did not give evidence.
- [37]What is clear however is that that final certificate dated 18 Fairbury 2014 did not certify or deal with the rock retaining wall that was built in lieu of the timber retaining wall as required pursuant to the varied contract between the parties. I conclude the contract was varied by agreement. The provisions of the DBCA does not preclude such a finding, it precludes recovery by a building contractor for non-compliant variations. A development permit for construction of a rock retaining wall in lieu of the original timber retaining wall was only approved by Mr Oliver the certifier on 13 October 2014. A Form 15 compliance certificate for the engineered design had only been certified by an engineer on 10 October 2014. The Form 21 final inspection certificate for the retaining wall was certified, with signature, by Mr Oliver, only on 30 October 2014.
- [38]Development approval was necessary for the rock retaining wall constructed by the builder in lieu of the original timber. The local government in fact issued a show cause notice to Ms Prosser as owner on the basis appropriate development approval for the wall had not been obtained as at 27 August 2014.[22]
- [39]I conclude a relevant statutory requirement, namely approval of the rock retaining wall constructed by the builder on the land under the contract, was lacking as at February 2014. I therefore also conclude that the builder could not claim to have reached practical completion of the contract in February 2014. The retaining walls were an important feature of the construction and indeed relied on by the builder to justify avoidance of the usual stages for progress payments set by the DBCA.[23]
- [40]The builder gave notice to Ms Prosser that she was in substantial breach of the contract in failing to pay the monies due on practical completion and the variation claim of $10,000. The builder was not entitled to claim either of those amounts as at 19 February 2014, nor to give notice of breach to Ms Prosser. Ms Prosser challenged the builder’s claim to having achieved practical completion. The replacement boulder wall was assessable development. The builder had failed to obtain approval for it. The demand for payment of the monies due at practical completion stage when that had not been reached constituted repudiation of the builder’s obligations under the contract. I conclude Ms Prosser accepted the builder’s repudiation and terminated the contract between the parties when she filed the within application in the Tribunal on or about 2 March 2014.
- [41]Ms Prosser claims damages in result. She claimed the builder’s refusal to complete the contract and to exclude her from her home has caused her a significant financial burden. She provided a calculation of expenses[24] but it is without any supporting documents to evidence her claim.
Rental Agreement
- [42]She maintained the parties executed a secondary agreement at the time of signing the contract whereby the builder agreed to a “16 week guaranteed build time or they pay your rent.” The builder denies any such agreement. Ms Prosser refers to special condition 9 of the contract which states “The separate rental agreement to this contract supercedes (sic) clause 11 (late completion damages) providing all terms and conditions are met.”
- [43]But there is no separate rental agreement attached to the contract. There is no evidence about what the document said or the rights and obligations created. Ms Prosser says it was an agreement whereby, if the builder failed to complete the contract within 16 weeks, the builder would pay her rent. In an email to the builder on 28 November 2013[25] she said “I understand you guarantee a 16 week build time which you stated in your email on 29 May which I believe starts from the earthworks stage of 3 September 2013.” There was no mention of any rental agreement executed at the time of signing the contract in that email. One would have expected that to have been referred to. In that email she goes on to talk about difficulties the delay was causing her in renting properties, but nothing else.
- [44]Clause 11 in schedule 1 states “Late completion damages (Clause 32) $..15… per day (if nothing stated then $15).” The additional specific addition of the figure of $15 was put in by the builder. Mr Anthony Smith said the rental agreement was never discussed with Ms Prosser, but the liquidated damages clause was. I do not accept Ms Prosser’s evidence that there was a separate written rental agreement between the parties. On this point I again prefer the evidence of the builder and conclude any delay in the period of construction was agreed would only entitle the owner to liquidated damages of $15 per day for the period of delay.
Damages
- [45]Ms Prosser is entitled to damages for the builder’s breach of contract. The difficulty is in calculating damages. The agreement as to liquidated damages for delay had no effective application after the owner terminated the contract.[26] The builder refused to handover the property to Ms Prosser. Ms Prosser only obtained possession of the property on 18 October 2014 after order made by the Tribunal at the conclusion of the first day of hearing. Also, as ordered by the Tribunal, immediately before that the builder supplied and installed all appliances under the contract at the property. As an aside, and given the parties were at odds about this as well, I note the experts agreed withholding appliances until handover was an industry standard to prevent theft from vacant premises. It was also a course provided for in clause 2 of the special conditions to the contract.
- [46]I conclude Ms Prosser has suffered loss arising out of the builder’s breach of contract. She has suffered delay in obtaining possession. She says she has been obliged to pay mortgage payments and rates together with rent and increased travel costs and storage charges. Had the contract completed correctly and she had been able to take possession in or about end February 2014, I conclude she would not have been put to the expense of paying rent elsewhere. She provides a calculation of the rent and mortgage payments[27] but as stated, no documentary evidence to support her claims.
- [47]Ms Prosser said at hearing when she signed the contract she was paying rent of $395 per week. She had plans to let the property long term to Defence Housing Australia, but that fell by the wayside or was overtaken by events. I have no evidence about anticipated earnings and outgoings had that venture come to fruition. There was some suggestion the builder was responsible for the failure of that plan, but given on the evidence air-conditioning was a Defence Housing Australia prerequisite, and given that I have found she excluded that from the contract, there can be no claim to damages associated with any alleged loss on that basis.
- [48]In all the circumstances I conclude the appropriate calculation of damages is to calculate the rent she could have saved over the period 2 March 2014 to 18 October 2014 had the builder not repudiated the contract on 19 February 2014. In her statement of evidence filed 12 June 2014 she said she was in shared rental accommodation with a friend at a cost to her of $160 per week. There was no update on that information at hearing. I cannot see that she could obtain cheaper accommodation over the subsequent period July to October 2014 and I am not prepared to conclude she could live rent free.
- [49]I conclude it is appropriate to accept she has paid rent over the period of $160 per week. On my calculation such rent from 3 March 2014 to 18 October 2014 at $160 per week totals $5257.15. Without documentary evidence to support the claims concerning travel and storage, I am not prepared to award any sum for those other items.
Defects
- [50]The experts are agreed on the defects and omissions in the construction. The costs of rectification in Mr Kelly’s report of 31 October 2014 is $6320. Mr Helisma agreed with that. The experts also add additional costs associated with fencing on top of the “right-hand boundary” retaining wall and correcting roof tiles. With respect to the tiles on the roof, the experts agree an additional $380 plus GST should be allowed to rectify this defect. In respect of the fencing on top of the “right-hand boundary” retaining wall, Mr Kelly for the builder gave evidence that it is possible to erect a pool fence on top of the retaining wall and both experts agree that the absence of a fence is a safety issue, however neither expert suggested the builder had an obligation under the contract to include that additional work as a responsibility under the contract. As such I cannot conclude that the builder is responsible, in whole or in part, for that additional safety fence. The suggestion by the experts that each party pay half may be sensible but the builder is only responsible for defects and incomplete work associated with his contract.
- [51]Accordingly I accept most of the findings of the experts and conclude the costs of rectification total $6,738 and that should be paid by the builder.
Conclusion
- [52]The appropriate order in this matter is that the builder pay Ms Prosser the sum of $11,995.15 within 30 days of the date hereof.
Footnotes
[1] Ex 1.
[2] Ex 8 attachment C.
[3] Ibid attachment D.
[4] Ibid attachment E.
[5] Ex 1 attachment 20.
[6] Section 79(1)(b) and (4).
[7] Allaro Homes Cairns Pty Ltd v O'Reilly & Anor [2012] QCA 286.
[8] Better Homes Queensland Pty Ltd v O'Reilly & Anor [2012] QCATA 37 at [28] per Kingham DCJ.
[9] DBCA s 30.
[10] Ex 1 attachment 16.
[11] Ibid attachment 17.
[12] Ibid attachment 1.
[13] Ibid email dated 2 May 2013 from Ms Prosser to the builder.
[14] Ex 4 – document entitled “changes register”.
[15] Ex 8 attachment D.
[16] ibid attachment T.
[17] Ex 17.
[18] Ex 20 at 1.49.
[19] Ex 8 attachment J.
[20] Ibid attachment M.
[21] Section 149(1).
[22] Ex 5.
[23] Ex 4 p7.
[24] Ex 1 attachment 32.
[25] Ex 1 attachment 31.
[26] Ex 4 contract general conditions clause 32.1(b).
[27] Ex 1 attachment 32.