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  4. Exel Drilling P/L v GLB Quarrying & Logistics P/L - [2013] QDC 244

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Exel Drilling P/L v GLB Quarrying & Logistics P/L[2013] QDC 244

Exel Drilling P/L v GLB Quarrying & Logistics P/L[2013] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

Exel Drilling P/L  v GLB Quarrying & Logistics P/L [2013] QDC 244

PARTIES:

EXEL DRILLING PTY LTD (ACN 129 170 681)

(plaintiff)

and

GLB QUARRYING & LOGISTICS PTY LTD (ACN 131 402 910)

(defendant)

FILE NO/S:

4775/11

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane 

HEARING DATES:

11, 12 and 24 June 2013

(Written Submissions: defendant on 22 July; plaintiff on 5 August; defendant’s reply on 12th August)

JUDGE:

Dorney QC, DCJ

JUDGMENT & ORDER:

THE JUDGMENT OF THE COURT IS THAT:

  1. On the claim, the defendant pay to the plaintiff the amount of $166,290.52 (including $64,961.58 interest to this day).
  2. On the counterclaim, the plaintiff pay to the defendant the amount of $217,392.16 (including $32,599.46 interest to this day).
  3. One judgment be set off against the other and execution issue for the balance only.

AND THE COURT ORDERS THAT:

  1. Each party file, and serve, submissions on costs, if any, by 4pm 11 October 2013.

CATCHWORDS:

Contracts- whether breach of implied term – whether partly oral agreement – whether varied, or substituted, agreement – whether “normal” terms incorporated by reference – whether equitable set-off applicable (and to what extent) - whether “failure to mitigate”

LEGISLATION:

Civil Proceedings Act 2011 (Qld), s 58

Corporations Act 2001 (Cth), s 1305

Uniform Civil Procedure Rules 1999 (Qld), r 173

CASES CITED:

BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors [2008] QSC 141

Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239.

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Ltd (2000) 201 CLR 520

Daoud v Boutros [2013] NSWSC 687

Godecke v Kirwan (1973) 129 CLR 629

Hadley v Baxendale (1854) 9 Exch 341

Hanak v Green [1958] 2 QB 9

Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287

Hays Personnel Services (Australia) P/L v Motorline P/L [2008] QCA 375

Henville v Walker (2001) 206 CLR 459

HTW Valuers v Astonland Pty Ltd (2004) 217 CLR 640

Knott Investments Pty Ltd & Ors v Fulcher & Ors [2013] QCA 67

La Rosa v Nudrill Pty Ltd [2013] WASCA 18

Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Moy v Pettman Smith (Firm) [2005] UKHL 7

Powell & Berry v Jones & Jones [1968] SASR 394

Pritchard v Trius Constructions Pty Ltd & Ors [2011] NSWSC 749

Robinson v Harman (1848) 1 Exch 850

Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd & Ors [1976] 1 NSWLR 5

Sherrin Rentals Pty Ltd v Mac-Attack Equipment Hire Pty Ltd [2012] QDC 150

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23

The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Weller v Phipps [2010] NSWCA 323

COUNSEL:

Ms K Gothard for the plaintiff

Mr H Scott-Mackenzie for the defendant

SOLICITORS:

JHK Legal for the plaintiff

Wellners Lawyers for the defendant

Introduction

  1. [1]
    The plaintiff has sued for $135,555.79 for drilling and blasting (by shot-firing) services conducted for the defendant at the Southern Resource of the Byerwen Quarry, Queenslandin the first half of 2011. It was met by a defence of set-off, as well as a counterclaim alleged to flow from concurrent breaches by the plaintiff of the agreement reached, and of a duty of care, concerning such services and from a failure to complete such services until a specified volume of blasted rock was obtained. These allegations were made in circumstances where the defendant admitted that it had not paid to the plaintiff the balance (i.e. $135,555.79) of the total amount claimed by the plaintiff for such services as provided, in invoices sent and received.
  1. [2]
    The plaintiff, Exel Drilling Pty Ltd (“Exel”), alleged there was a written agreement. The defendant, GLB Quarrying & Logistics Pty Ltd (“GLB”), alleged a partly oral and a partly written agreement. No further amendments were sought during the trial. But, as matters evolved at trial, it was clear that the plaintiff’s assertion of one entirely written agreement could not be sustained, particularly since the plaintiff’s primary document [a written Work Approval Form (“WAF”) signed on 18 March 2011 by both parties] did not deal, very importantly, with the first of three similar sets of services undertaken by the plaintiff at the Quarry. Certain details of the work undertaken as stated in that WAF were different from the tender (“Tender Document”) communicated to an authorised representative of GLB on 29 January 2011, as were significant terms alleged to be incorporated by reference. The acceptance of that tender preceded the first blast being activated on 10 March 2011 (designated as the “First Shot Fired”) - yet GLB’s unamended pleading did not rely on that acceptance, but, rather, on “conversations” on some prior unidentified dates plusthe later WAF (properly interpreted and, therefore, alleged to properly incorporate GLB’s “normal terms of purchase”).
  1. [3]
    Since GLB based no part of its defence or counterclaim on anything being amiss in either the Second Shot Fired (on 31 March 2011) or the Third Shot Fired (shortly before 2 May 2011), the primary focus will be on the circumstances of the terms of the agreement existing as at 10 March 2011 and of the consequences of any breach, insofar as the consequences of the First Shot Fired are concerned. Since GLB’s counterclaim also deals with the consequences, if any, of Exel leaving the site after the Third Shot Fired and, thereby, undertaking no further work for GLB, it will be necessary to look at all the “agreements” sought to be identified in the written submissions to determine its outcome.

Issues

  1. [4]
    As extracted from the written submissions made, the following are the major relevant issues:
  • what dispute, if any, apart from issue of set-off, is there about the claimed sum of $135,555.79;
  • was the Tender Document accepted in a way such that it had a long-term contractual effect or, alternatively, were the terms which governed the First Shot Fired (in particular) the subject solely, or partly with the Tender Document, of an oral agreement;
  • to what extent did the exchanged emails between the parties on 17 March 2011 form part of any later varied, or perhaps substituted, agreement on 18 March 2011;
  • did any agreement incorporate GLB’s Terms of Purchase;
  • was Exel in breach of the (mutually agreed) implied term, or duty of care, that it would exercise reasonable care and skill in performing its obligation with respect to whatever agreement covered the First Shot Fired;
  • to what extent (percentage-wise) was the rock produced from the First Shot Fired oversized, such as to require further breaking (or some other remedial measure);
  • was it a term of any agreement between Exel and GLB that Exel would bind itself to conduct its services so as to produce 111,000 cubic metres of rock (or some other, and what, volume) for GLB – and, if so, what damages flow from a failure to continue its services after the Third Shot Fired;
  • to what extent, if any, is any set-off available to GLB; and
  • what interest, if any, has accrued pursuant to agreement, or statute?

Witnesses

  1. [5]
    Two witnesses were called by each party. It is necessary to canvass the extent to which the evidence of any of them should be accepted, because there is some conflict in recollection in a case where, despite the pleadings, a significant area of dispute exists about certain matters, even including the terms of any agreements reached.
  1. [6]
    Before considering each of the witnesses, in turn, it can be remarked at the outset that each attempted to give evidence of their honest recollection of things that occurred well over two years before. Even so, the reliability of the evidence they gave bears upon the final determination of what my findings are concerning the occurrences in the early months of 2011, assisted as I am by the written material that does exist.
  1. [7]
    The plaintiff’s first witness was Mr Kemp. His occupation was a shot firer. He said he was a director of Exel. I conclude, from the whole of his evidence, that his experience was in undertaking the skilled work required of a shot firer, a skill about which he was adamantly – if a little overly so – confident. He, as a person whose primary concern was not with the financial or administrative parts of Exel’s business, but rather with the technical aspects of planning and executing the work of shot firing, had a somewhat defensive view about the original pattern chosen for the First Shot Fired. Additionally, it did not appear to me that he was overly attentive in the discussions that were had between Exel and GLB, at least prior to the less than successful result from the First Shot Fired. His email dated 15 March 2011, after that firing, is self-serving in its attempt to blame everyone and everything else for the admitted requirement, then, to implement “a dramatic change to design” of the drilling and firing pattern. As I find the relevant facts, the geology of the Northern Resource was quite similar to that of the Southern Resource, as amply demonstrated by the changed - and successful - pattern for the Second Shot Fired (which was similar to the pattern for the successful blasting in the Northern Resource). This was exemplified by his comment on the Second Shot Fired (which I find to be much more successful in limiting the oversize rock to less than 2%) as being a “slight improvement”, though, in cross-examination, he was more realistic, accepting that the Second and Third Shots Fired were “successful when compared with the First Shot in terms of … oversize rock produced”. Consequently, where there was conflict between Mr Kemp’s recollection and those from witnesses called from GLB’s side concerning conversations had, particularly before the First Shot Fired, I conclude that Mr Kemp was not the most reliable of historians.
  1. [8]
    The second witness called by the plaintiff was Mr Torresan. He was, by occupation, a driller; and, therefore, complementary in skills to Mr Kemp for Exel’s purposes. He described himself as the managing director of Exel (although no ASIC extracts were produced concerning the directorial or management structure of either party). I conclude that Mr Torresan took a greater interest than Mr Kemp in the financial and administrative sides of Exel’s business. The restriction on his full understanding of what occurred arises from the fact that, although he carried out the drilling for the First Shot Fired, he did not do the drilling for either of the Second Shot Fired or the Third Shot Fired. But that limitation is not as important in the total context here, because the primary focus is on the circumstances leading to, and the consequences of, the First Shot Fired. In general terms, I accept that the reliability of his recollection was better than Mr Kemp but, again, I conclude that, in terms of the conversations that are in dispute, particularly early on in 2011, while I generally accept that he had some recollection, I am concerned about his level of accurate memory as to the detail of it.
  1. [9]
    The first witness called by the defendant was Mr Byrne. He was the managing director of GLB. He had a comprehensive grasp of the quarrying industry in general and significant recollection of the arrangements between GLB and its contract with Queensland Rail. The concern I have about Mr Byrne’s evidence is the extent to which he, presumably subconsciously, adopted exaggerated terminology in his recalling of events. While I accept that, in his own mind, Mr Byrne was outraged by the results of the First Shot Fired, his expressed level of indignation raised concerns for me in determining the accuracy of many of his statements. His reference to the consequence of the First Shot Fired as being “a total disaster” appeared to me to have an effect upon his estimation of the percentage of oversized rock produced from that First Shot Fired. For instance, he estimated it to be at 30%. Even GLB’s final pleadings, left unamended after his evidence, particularised the size at “approximately 20%, or 8,273 tonnes”. Yet again, his potential exaggeration is shown by his characterisation of his response to Exel’s indication of its intention to remove its equipment from the Quarry around 2 May 2011 as being “in a panic”. Nevertheless, as I have remarked concerning all witnesses, the personal approaches of each have clearly had some effect on the accuracy of the recollection asserted.
  1. [10]
    The second witness called by the defendant, and the last witness to be called, was Mr Sanderson. Unlike the three other witnesses, he did not have a personal financial investment in the respective corporations. Rather, he was the general manager of GLB. His experience was extensive, even if his expertise in both firing and drilling was not as deep as either Mr Kemp or Mr Torresan. But I did find his evidence to be the most compelling. He was calm and collected in giving his evidence and, where necessary, made appropriate concessions in cross-examination. Moreover, his presence on the site, which was much more considerable than any other witness called, leads me to conclude that he had a better understanding, with a consequent better recollection, of many of the circumstances that impinge upon the determination of the case here. But he, unlike Mr Arnett (for GLB), was not constantly present on site early in the material times. In summary, accordingly, particularly where there was a conflict between his recollection and that of any other witness at the times that he was there, I do prefer him on that score. As for Mr Arnett, despite the fact that no explanation was offered for his absence, there is no significant difference between Exel’s witnesses and Mr Arnett’s documentary evidence.

Significance of Exel’s Tender Document

  1. [11]
    Although both pleadings have avoided any direct reference to GLB’s emails dated 28 and 29 January 2011, the evidence as it was dealt with by both parties at trial (and in later submissions) gave them some significance in terms of the belated acceptance of the significance of the Tender Document (Exhibit 1 – Tab 2). The defendant alleged the oral part of its alleged agreement pre-dated the First Shot Fired. Further, the Tender Document did not support in any way the pleaded allegation about the production of 111,000m3 of rock. As for the plaintiff, despite Exel’s pleadings conceding the substantially different pattern for drilling and firing which was used for the First Shot Fired from that in the WAF, both parties now accept that some anterior agreement existed, although there is still debate about whether it was subjected to later substitution.
  1. [12]
    The email that attached the tender from Exel, which was then forwarded by GLB’s recipient, Mr Arnett, to both Mr Sanderson and Mr Byrne on 29 January 2011, clearly can be characterised in legal terms as an offer by way of tender. While it refers to the “duration of the contract”, there is no specific term stated. It is ambiguous; and, as discussed later, surrounding circumstances add no necessary clarity. Nevertheless, a banked cubic metre (“BCM”) rate of $3.50 (plus GST) was stated.
  1. [13]
    Turning to the evidence led by both parties concerning this “tender” or “quote”, Mr Kemp was not taxed with the issue at all. Mr Torresan, in examination-in-chief, while he asserted that the visit he made to the Quarry was in February 2011, referred to a conversation at the Quarry site with Mr Arnett and that, after both he and Mr Kemp left the site, they received a phone call from Mr Arnett saying that GLB had received a “cheaper quote” and that it would be proceeding with that. Immediately following that answer, Mr Torresan’s attention was drawn to Exhibit 1 - Tab 2. When asked whether the First Shot Fired occurred as a result of the tender, Mr Torresan replied that “it did”. Unsurprisingly, Mr Torresan acknowledged that the tender contained “our price”. The circumstances of that were elaborated upon by Mr Torresan to the effect that a phone call from Mr Arnett informed him that GLB would be “going with our pricing” (although the next question elicited the response that the telephone conversation was with Mr Byrne).
  1. [14]
    When Mr Torresan was cross-examined, he stated that Exel’s inspection of the Quarry took place before the tender was submitted, adding later in that cross-examination that prior to submitting the tender there was a discussion with Mr Byrne by telephone. Later yet in cross-examination, Mr Torresan acknowledged that Exel did not specify a drill pattern in the tender, being a pattern designed by Mr Kemp later. I, for reasons earlier expressed, do not accept that Mr Kemp advised Mr Arnett that, to achieve the tender price of $3.50 per BCM, an alternative pattern to that used on the Northern Resource was “required”. In any event, Mr Kemp’s recollection put it after the Tender Document. In the end, I accept that Mr Torresan’s evidence is more likely (being an “advice” of what pattern it would use).
  1. [15]
    Finally, in re-examination, Mr Torresan asserted that Exel did not receive any “documents” from GLB “regarding the scope” of the tender process, did not receive any “documents” at all before the tender, and did not receive any “documents” after the tender was submitted. Although the purpose of that series of puzzling questions was probably to reinforce the sole document theory (or perhaps to deny receiving any geotechnical reports), it has little effect on the outcome that I decide concerning the significance of the tender.
  1. [16]
    In Mr Byrne’s evidence, he conceded that Mr Arnett had been told to go out to find a contractor for drilling and blasting using the same method as the previous driller/blaster had used at the same cost, but that the actual tender that came “in cheaper” was from a legal entity that was not available to start “straight away”, whereas Mr Arnett indicated that Exel “could start straight away”. Although it is not clear from Mr Byrne’s evidence, the best understanding of it would suggest that, when he had a conversation with Mr Torresan, Mr Torresan stated that he was “quite happy” about Mr Arnett “indicating” that GLB would use it “as preferred drill blast contractor”. Consequently, this can only have been after the tender was received by GLB on 29 January 2011. Finally, in cross-examination, Mr Byrne acknowledged that when he spoke to Mr Torresan on the telephone to tell him that GLB “wanted to engage Exel” it was because Exel was very clear that it could achieve the same result as the former shot fire/driller for the same price and that it could “mobilise pretty well straight away”. Since this is consistent with other evidence that I accept, I accept Mr Byrne as to this.
  1. [17]
    The only further evidence led at trial concerning this issue was in the examination-in-chief of Mr Sanderson. He acknowledged that he could remember receiving the email of 28 January 2011 (which was forwarded to him from Mr Arnett).
  1. [18]
    What, then, can be determined from that survey of the evidence in the context of other relevant (particularly documentary) evidence?
  1. [19]
    Since the evidence strongly suggests that the tender or “quote” was received and considered, it is difficult to escape the conclusion that there was an offer by Exel which was accepted by GLB. That became an agreement in the express terms of the Tender Document. While certain details were not then agreed (for example, details about the extent of the “duration” of the contract, when payments would be made, and, perhaps, the shot pattern to be used), there were still enough terms, expressed with certainty, which would permit a court to conclude that the legal structure that covered the First Shot Fired was covered by the acceptance of that tender. After all, the first invoice sent (Exhibit 1, Tab 7, dated 16 March 2011) charged at the rate of $3.50 (plus GST) per BCM (especially where there is no conversation otherwise held prior to 10 March 2011 containing an offer and acceptance of that rate).
  1. [20]
    In consequence, despite the pleadings of both parties (in which the different allegations concerning the existence of any relevant agreement are not supportable on the evidence led and accepted), it is inevitable that this Tender Document ought to be accepted as the initial contractual document, either solely or partly.

Partly written and partly oral agreement

  1. [21]
    In Daoud v Boutros,[1]Sackar J delineated the principles relevant to deciding whether any agreement that the parties entered into is one wholly in writing, or partly written and partly oral - relying upon Masterton Homes Pty Ltd v Palm Assets Pty Ltd[2]-  as follows, relevantly:
  • where there is a document that on its face appears to be a complete contract, that provides an evidentiary basis for inferring that the document contains the whole of the express contractual terms that bind the parties;
  • it is open to a party to prove that, even though there is a document that on its face appears to be a complete contract, the parties have agreed orally on terms additional to those contained in writing and that, conversely, it is open to a party to prove that the parties have orally agreed that the document should contain the whole of the terms agreed between them;
  • the parol evidence rule applies only to contracts that are wholly in writing - and thus has no scope to operate until it has first been ascertained that the contract is wholly in writing;
  • where a contract is partly written and partly oral, the terms of the contract are to be ascertained from the whole of the circumstances, as a matter of fact;
  • in determining what are the terms of the contract that is partly written and partly oral, surrounding circumstances may be used as an aid to finding what such terms of the contract are - but if it is possible to make a finding about what were the words the parties said to each other, the meaning of those words is ascertained in the light of those surrounding circumstances, although, if it is not possible to make a finding about particular words that were used, surrounding circumstances can be looked at to find what in substance the parties agreed to; and
  • a separate type of contractual arrangement or contract that is partly written and partly oral is where there is a contract wholly in writing and there is an oral collateral contract.
  1. [22]
    Also importantly, Sackar J, by reference to cited authority, described the type of intention relevant to contract formation as being:
  • for the purpose of deciding whether a contract has been entered into, the common intention the court seeks to ascertain is what is sometimes called the “objective intention” of the parties;
  • that objective intention is the intention that a reasonable person, with a knowledge of the words and actions of the parties as communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had (concerning the subject matter of the alleged contract);
  • there is also authoritative recognition that a factor to be taken into account in deciding whether the contract has been entered into and, if so, on what terms, is “the purpose and object of the transaction”; and
  • there are some statements to the effect that there can be some exceptional cases where the subjective intention of the parties can be taken into account in deciding whether a contract has been entered into or not - but only in situations where, for instance, the parties were doing or saying something that was not intended to be taken at face value;

: at [65].

  1. [23]
    Importantly – though this is subject of course to any substitution or variation (for which consideration has been provided) – that Tender Document does not detail any contractual obligation to produce 111,000m3of rock (or any other specific volume, say, of 110,000.00m3). I reject the evidence of Mr Byrne that any oral “terms” were agreed to, either for the Tender Document agreement or the later WAF agreement. Further, nothing was agreed about: Exel’s liability for any failure to produce any “agreed” volume of rock; or any extended liability for any breach of the implied term of exercising reasonable care and skill. Even though both Mr Kemp and Mr Torresan gave evidence that they were aware that there was much rock to be drilled and shot fired, there was no express agreement obliging Exel to work to produce some specific volume of rock or that Exel was contractually entitled to exploit its skill to secure its extraction in full. After all, the history of GLB’s engagement with drillers did not give any historical support for such a long-term engagement; and the eventual volume blasted and used appears to have been somewhat lower (some 103, 645.5m3only).
  1. [24]
    Sackar J also discussed the importance of a party affixing a signature to a document: at [69]. He noted that in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[3]the High Court remarked that, consistently with the objective approach to contracts, it is a matter of some significance when a person places a signature on a document and that, generally, a person cannot escape the consequences of signing a document. As he stated, the High Court went on to observe that unless a person was prepared to take the chance of being bound by the document, whatever it might be, it was for the person to protect himself or herself by abstaining from signing the document, until satisfied with it: also at [69].
  1. [25]
    Regarding variation or substitution, in Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Ltd,[4]the High Court remarked that, when parties to an existing contract enter into a further contract by which they vary the original contract, then by hypothesis, they have made two contracts: at 533 [22]. Conversely, for one reason or another, it may be necessary to decide whether the original contract subsists - turning, for example, upon the place, or the time, or the form, of the contract: also at 533 [22]. The determining factor “must always be the intention of the parties as disclosed by the later agreement”: at 534 [23] (by reference to cited authority). Here, at least until after the First Shot Fired, there was no substitution for the Tender Document (as a solely written contract); and there was no variation of it (even if some consideration could have been identified to contractually enable it).
  1. [26]
    Subsequent to the First Shot Fired, it is uncontested that Mr Sanderson (for GLB) signed the already signed (by Exel) WAF on 18 March 2011. Even without Exel’s Terms and Conditions of Trade [expressly incorporated by reference into the WAF as appears from a copy of that signed document (Exhibit 1 - Tab 11), and expressly earlier communicated as to its actual terms by an attachment to the relevant email] stating that “no regard” was to be had to “prior dealings” (Clause 1.3), despite GLB’s protestations that it only covered the Second Shot Fired, I conclude that it was a substituted agreement and that, therefore, the Tender Document had no further contractual effect thereafter. The very argument by GLB that its “normal” terms were incorporated by the notation made by Mr Sanderson on the WAF supports this determination, given not only their wide scope but also the nature and extent of GLB’s reliance on such terms in its submissions. The appearance of the word “ongoing” is, at best for GLB, ambiguous; but any such ambiguity is resolved either by the acknowledgement that Sara Leecontemplates that an ongoing relationship may well be subjected to completely “new” terms (i.e. for further drilling and shot firing) or by the all too obvious response that it merely reflects a recognition of a previous dealing, being the First Shot Fired. Because of the signing by authorised representatives of both parties on 18 March 2011 and the conclusions that I have reached, the WAF contains all relevant terms. The handwritten parts are to be interpreted in the context of the objective circumstances of such signing.
  1. [27]
    The issue of tacit agreement was analysed recently by Jackson J in Mackay Sugar Ltd v Sugar Australia Pty Ltd.[5] Accepting his conclusions (at [46-47]), based on his reference to extensive citation, and relevant to the present controversy: first, a contract may be inferred from the acts and conduct of parties as well as, or in the absence of, their words; secondly, the question is whether such conduct, received in light of the surrounding circumstances, shows a tacit understanding or agreement; thirdly, such conduct must be capable of proving allthe essential elements of an express contract; fourthly, care must be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances; and, lastly (for present purposes), because in any dynamic commercial relationship new terms may be added or supersede older terms, it is the whole relationship which must be looked at, not only what was said and done at first formation. Also, importantly, is the necessity to focus on the actual contract in question, testing all relevant conduct against its alleged existence.
  1. [28]
    The only oral term that I find did exist is that which deals with the charging rate in the WAF Agreement. Subsequent conduct of both parties shows not only tacit acceptance of what the rate was (clearly set out in Exel’s invoices), but also that the Third Shot Fired was the subject of the WAF Agreement, solely.

Implied term to exercise reasonable care and skill

  1. [29]
    Applying the tests outlined in Byrne v Australian Airlines Ltd,[6]apart from exercising reasonable care and skill, no business efficacy existed here for any other term to be so implied. In particular, for reasons discussed earlier (and later), there is no basis for implying a term as to the total quantity of rock to be the subject of the drilling and shot firing arrangement. At the least, it is “incapable of clear expression”.
  1. [30]
    The consideration of this issue arises from the admission by the plaintiff of the allegation in the defendant’s further amended defence and counterclaim that Exel owed to GLB a duty to exercise reasonable care and skill in connection with the drilling and blasting operations, though Exel, as defendant to the counterclaim, took issue with the alleged failure by it to exercise that reasonable care and skill.
  1. [31]
    There was no specific expert evidence led about the standard of care normally exercised by reasonable and prudent drillers and blasters. This raises for consideration what position the court is placed in determining the standard of care which is expected, normally, to be exercised. In the recent decision of the New South Wales Court of Appeal in Weller v Phipps[7]Hodgson JA, with whom Beazley and Young JJA agreed, examined the position of the necessity of adducing expert evidence to ascertain the standard of care. While the position of a court with respect to determining the liability for negligence of legal practitioners was the main focus of the decision, the ancillary subject of the necessity for expert evidence was also addressed.
  1. [32]
    It was remarked, by paying due regard to Moy v Pettman Smith (a Firm)[8](where Lord Hope cautioned against a court coming to its own view without the benefit of expert evidence), that, where a claim is brought for professional negligence, the court will usually be expected to be provided with some evidence to enable it to assess whether the relevant standard of care has been departed from (at [19]): at [72]. Attention was also paid to the judgment, for her own part, of Baroness Hale where she added that, in claims against members of professions other than legal, the court “will have expert evidence on whether their conduct has fallen short of this standard” (being, there, what a reasonable doctor might have done) (at [26]): also at [72].
  1. [33]
    Here, considering the timing of the First Shot Fired and the absence of any further agreement beyond the ambit of the Tender Document, since Mr Kemp gave some, if brief, evidence about the “primary” and “secondary” objectives of rock blasting, and since it was conceded by both Mr Kemp and Mr Torresan that the purpose of the blasting was to produce rock capable of being crushed in GLB’s crushers, and since all witnesses agreed that the product of the Second and Third Shot Fired was within acceptable bounds of expectation, despite the absence of independent expert evidence, I accept that the exercise of reasonable care and skill would have been able to be discharged by blasting to that level (“the tolerance percentage”) - but not that all rock was to be so crushable.
  1. [34]
    As for the further aspect of such an implied term meaning that the pattern of drilling and shot firing was to be of the same kind that had been successfully used in the Northern Resource, while I accept that representatives of both parties discussed it, I do not find that there was any express agreement as to the content of any such express term. Nevertheless, I do conclude that it is an integral part of the accepted implied term to exercise reasonable care and skill - particularly where I have determined that it required the product, in its post-blasted form, to be limited to the tolerance percentage - that the pattern was to be determined using Exel’s superior expertise to achieve this quality for immediate crushing of blasted rock.
  1. [35]
    To the extent that it matters, in the above expressed conclusions, in dealing with the evidence concerning the “presence” of larger rocks, I accept Mr Sanderson’s detailed explanations as to reasons for the existence of references to such in the Daily Production Register (Exhibit 1 – Tab 3) and reject any statement by either Mr Kemp or Mr Torrensan that “oversized” rock was ever stated by Mr Sanderson to be part of either the original Tender Document agreement (which was before Mr Sanderson’s involvement) or any substitution for it by the WAF in whatever “amended” form, (which was after the First Shot Fired), apart from that produced as part of the tolerance percentage (discussed above).

Breach of implied term?

  1. [36]
    Exel’s written submissions accept that approximately 10% to 20% of the rock produced by the First Shot Fired was oversize (noting that Mr Torresan accepted that such was “probably 20%, maximum”) and unable to be crushed by GLB’s crushers without further breaking. Any claim by MrByrne, on behalf of GLB, to assess that percentage at 30% is rejected (for the reasons that I have extensively canvassed earlier).
  1. [37]
    It not disputed by Exel that the oversize rock produced by the Second and Third Shots Fired was in the order of 1% to 2%. Mr Sanderson’s evidence was, also, not disputed that it was generally accepted in the drilling and blasting industry that “maybe less than 2%” was expected. If the drilling pattern for the First Shot Fired had been exactly, or, even substantially, the same as the pattern used for the Second and Third Shots Fired, it might be more difficult to conclude that the discrepancy between the product of the First and the product of the Second and Third Shots Fired was not due to some failure to exercise reasonable care and skill.
  1. [38]
    Even putting to one side, for the moment, the substantive difference between the pattern used by Exel and that used by MrLeahy (the previous drilling contractor engaged by GLB who worked on the Northern Resource and whose drilling and shot firing produced an acceptable level of product tolerance), unless Exel could adequately explain why its own pattern changed so dramatically without any fault on its part, it is a reasonable inference that it did not meet the relevant standard of reasonable care and skill for that First Shot Fired.
  1. [39]
    The explanations proffered by Exel include: that the true geology of the Southern Resource could not be visually assessed by Exel, such that it was not possible, until the First Shot Fired had occurred, to determine whether the geology of the two Resources was the same; that the Southern Resource was “grassed over” and that a visual inspection of the column sizes was not possible, since the area that had been the subject of a test blast had been backfilled with oversize rocks such that the rock face was not visible; and that MrKemp, on behalf of Exel, informed MrArnett, on behalf of GLB, of the actual blast pattern that Exel would be using for the First Shot Fired. As for the “explanation” that the price that GLB would pay dictated the shot pattern, I have rejected Mr Kemp’s evidence to that effect.
  1. [40]
    The evidence of MrSanderson which I generally accept, and specifically accept in this instance, was to the effect that the geology of both the Northern and the Southern Resources was substantially similar. The “petrographic tests” (purportedly prepared by Queensland Rail) never became evidence in the trial. If that similarity was obvious to a person such as MrSanderson, then it should have been obvious to a person such as either MrKemp or MrTorresan, or even both. They both asserted that they were experienced in their skilled occupations. With respect to the assertion by Exel that the Southern Resource was unable to be properly investigated, particularly as to the column sizes, it is a contention that must be faced with some incredulity when it is asserted by Exel that they would have, if so knowing, used a different pattern from that deliberately chosen by Exel for the Southern Resource. Did Exel, then, choose the pattern by guesswork or speculation? While MrKemp’s evidence is that that different pattern was because Exel could only do it for the price that it quoted in the Tender Document – which I have rejected – it still would not have been acceptable in discharge of the obligation to exercise reasonable care and skill to respond that way, without also at the same time seeking to vary the terms of the agreement (perhaps as to price) that both sides have conceded contained such an implied term to exercise reasonable care and skill. Further, the mere fact that representatives of Exel advised representatives of GLB about what pattern would be used cannot excuse any breach of the relevant obligation by Exel. Moreover, MrSanderson – whose evidence as I said I have accepted – stated that, in a conversation with MrKemp, he expressed the view that he did not think that the pattern would “work”, to which MrKemp’s response was that Exel was the “expert” and that it would “work better” than that pattern selected by MrLeahy.
  1. [41]
    Thus, the findings that I do make about this issue are as follows:
  • I accept that one, or more, representatives of Exel stated to one, or more, representatives of GLB the nature of the pattern of drilling and blasting that Exel would use for the First Shot Fired, in circumstances where Mr Kemp accepted that he was told the size of rock that GLB’s “facilities” (for crushing) could accept;
  • (as indicated) I do not accept that MrKemp, for Exel, stated that, for Exel to achieve the price of $3.50 per BCM, an alternative blast pattern to the one being used in the Northern Resource was required, particularly where in his cross-examination he accepted that he “believed” the pattern would work “based on what” had been seen “in” the Northern Resource (but, even if it was, it was for Exel to modify the otherwise agreed implied term or to otherwise change the terms of the Tender Document to include an exemption from, or even some limitation on, the consequences of a failure to achieve a result that otherwise was within the exercise of reasonable care and skill);
  • it was the responsibility of Exel as the driller and blaster to determine the correct pattern to achieve a successful blast that limited the oversize rock to the relevant tolerance (particularly where Mr Torresan agreed that, in deciding a drill pattern, one of the first steps is “to comprehensively scope the project” – and site inspection was part of that – and where Mr Kemp’s acknowledgement was that Mr Leahy’s pattern used for the Northern Resource was for “making sure that it was going to work”);
  • MrKemp was convinced (believing that he could achieve an appropriate outcome for a lesser cost) that his chosen pattern would work despite lacking the knowledge of the exact nature of the geology in the Southern Resource (especially where a default position would surely have been to assume that the geology of both Resources would be at least substantially similar and to use a pattern similar to a successful pattern employed there, where Mr Torresan admitted that, before drilling and firing, the relevant area in the Southern Resource had been exposed down to the hard surface); and
  • consequently, Exel went ahead with its own pattern relying upon its own expertise and produced something which it at least implicitly acknowledged (by using a different pattern for the Second and Third Shots Fired) that its decision was wrong in the selection of that pattern.
  1. [42]
    On the balance of probabilities, I find that Exel did breach its obligation under the implied term to exercise reasonable care and skill, and that it was negligent, in not exercising reasonable care and skill in the planning and execution of the drilling and the shot firing for the First Shot Fired.

Breach of term to produce 111,000 m3 of rock

  1. [43]
    In paragraph 2(b)(i) of the Further Amended Defence and Counterclaim, GLB alleged such an agreement to that specific figure. It also claimed a breach of that agreement, and damages. It then alleged, in paragraph 14, that Exel “failed to produce 67,074m3 of rock”.
  1. [44]
    As for uncertainty, in Godecke v Kirwan,[9]Walsh J (with Mason J) stated that, subject to the qualifications referred to by Bray CJ in Powell & Berry v Jones & Jones,[10]there is no reason in principle for holding that there cannot be a binding contract if some matter is to be left to be determined by one of the contracting parties: at 642. But the qualifications are: first, the option left must not be whether there shall be “any performance at all”; and secondly, all terms must be “settled”: at 398.
  1. [45]
    Although I dealt with this issue when considering the absence of any oral, or implied, term to such effect, I do add the following observations. There was no reference in the Tender Document to any volume of rock. In the WAF Agreement there was, again, no reference to any volume of rock to be produced by Exel for GLB. I accept that MrKemp, in cross-examination, answered positively - although adding the qualifier of “thereabouts” - in response to a question that his understanding was that there was 110,000m3 of rock to be produced and delivered by GLB to Queensland Rail. I also accept that MrTorresan, in cross-examination, stated, in answer to a question asserting that he was told that there was 110,000m3 of rock to be delivered, that he “believe(d)” that it was “about” 110,000m3 “that was required for the project”.
  1. [46]
    For the reasons earlier canvassed, I do not accept MrByrne, as a representative of GLB, in his evidence, both in examination-in-chief and in cross-examination, that:  MrTorresan’s “main concern” was that he wanted to know that he was going to be “used” for the whole contract (being the whole 111,000 m3); and MrByrne made it very clear to MrTorresan that GLB would “use” Exel, adding - to the exaggerations outlined above - that Mr Byrne made it clear to MrTorresan that he would be “on a boat to China if (he) didn’t produce and he’d be in there with (him)”.
  1. [47]
    What I do find is that there was, undoubtedly, a discussion between representatives of both parties about the size of the whole project (involving Queensland Rail). I also accept that a volume of either, or both, 111,000m3 and 110,000m3 of rock was mentioned. Interestingly, Mr Sanderson’s evidence was that the precise figure was 111,259m3. No negotiating representative purported to use that figure. Nevertheless, what I do conclude is that it was aspirational on both Exel’s and GLB’s part. For the former it was hoped to be able to continue to get that work and for the latter it was hoped that it would not have to change drilling and blasting contractors as it had done with MrLeahy.
  1. [48]
    What I do notconclude is that there was such certainty about both parties’ obligations to each other that it can be determined that those oral statements became part of what I have otherwise determined to be the original written agreement (the Tender Document) and the substituted written agreement (the WAF Agreement) – noting that I have accepted that the parties’ post-contractual conduct shows only the tacit acceptance between the parties of a change by way of an increase in the actual price to be charged in accordance with the invoices sent by Exel. That is, I find that there were no relevant “settled terms” for any such volume.

Incorporation of standard terms

  1. [49]
    One of the important aspects of this case, at least from GLB’s perspective, is to what extent its standard, or “normal”, Terms of Purchase became part of any agreement.
  1. [50]
    The issue arises because, in GLB’s acceptance of, at that stage, a draft WAF presented by Exel, it stated that it was “subject of course to our normal Terms of Purchase”. That email communication was sent by GLB to Exel on 17 March 2011. When the authorised representative of GLB signed the WAF on 18 March 2011, he added the words “SUBJECT TO EMAIL PRIOR CONDITIONS”.
  1. [51]
    It is common ground that Exel neither received nor requested, either before or after 17 March 2011 (at any relevant time), a copy of such Terms of Purchase (Exhibit 1 - Tab 10).
  1. [52]
    A consideration of the applicable principles should start with, at least, Hays Personnel Services (Australia) P/L vMotorline P/L.[11]Keane JA and McMeekin J agreed with the reasons expressed in the judgement of Holmes JA. What was postulated was an objective test: how a reasonable person would have responded to the relevant circumstances involving the standard terms: at [17]. In particular, reference was made to Lord Pearce’s observation in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association[12]to the effect that the court’s task is to decide what each party to an alleged contract “would reasonably conclude from the utterances, writings or conduct of the other”: also at [17].
  1. [53]
    Hays Personnel Serviceswas considered, recently, in the New South Wales Supreme Court in Pritchard v Trius Constructions Pty Ltd & Ors[13]. There, Hoeben J summarised the Queensland decision as encapsulating the principle that, where there is no signed contract (presumably, containing all the terms), terms appearing on documents that are not attached to the contract documents are only incorporated in the contract if reasonable notice has been given of them: at [93]. After considering a number of different cases – necessarily involving a range of different facts – he held that the common theme in most of those cases (but which was absent in relation to two of them) was that “a copy of the terms and conditions sought to be relied upon had been sent to the other party to the contract, and during the course of dealing between them no objection had been made to those terms and conditions”. The significant difference in the case under consideration by Hoeben J, therefore, was that a copy of the terms and conditions “was never provided” by the asserting party to the other: at [104]. He concluded that the “General Purchase Order Terms and Conditions” did not form part of the contract, having reached that conclusion for a number of reasons, including that he was “not satisfied that reasonable steps were taken” by the asserting party “to bring the terms and conditions which it says were incorporated in the contract and upon which it seeks to rely, to the attention of the other party”, referring, in particular, to there being no evidence that the terms and conditions were ever provided “to the other party” before the contract “and – though different from the case that (was being considered) – there was no evidence that (the asserting party) ever mentioned to the other party the existence of such terms and conditions”: at [105] – [107].
  1. [54]
    In this court in Sherrin Rentals Pty Ltd v Mac-Attack Equipment Hire Pty Ltd[14]McGill SC DCJ applied Hays Personnel Services in concluding that it would be reasonable for someone in the defendant’s position (there) to assume that the plaintiff (there), when offering equipment for hire, was offering it subject to its standard terms and conditions, so that by taking the equipment on hire the contract was formed, either orally or by conduct, which incorporated the standard terms and conditions used by the plaintiff: at [10]. It should be noted that circumstances of the case there considered were that there were terms and conditions printed on the back of the rental agreements and also that terms and conditions were printed on the back of invoices, even though the former had never been signed and the latter were not received (at least until well after the hirings had come into existence): at [8]. It was held to be of particular importance that the equipment which was the subject of the proceeding there “was by no means the first equipment which had been hired by the defendant from the plaintiff”: at [9]. Thus, it was held that, in such circumstances, prior to the time when any of the relevant pieces of equipment was hired, the defendant was in a position to know what the standard terms and conditions for hire used by plaintiff were: at [10].
  1. [55]
    Exel never had any actual knowledge of GLB’s “normal terms of purchase” until, seemingly, after litigation disclosure occurred. Additionally, Exel had never been given any earlier (i.e. prior to 17 March 2011) copy of such terms of purchase so as to give rise to any argument of constructive knowledge (or its applicable analogue). There is no authority which casts the obligation on a person informed about the existence of undisclosed terms to obtain a copy or, in default, be subjected to them. That person could have no idea of how referenced (but uncommunicated) terms could affect the contractual relationship. This case differs from those considered in that, here, there was a specific, though indirect, reference to them. But if one party has had no prior dealings with the other and takes no steps to inform the other of what is claimed to be its “normal” terms, it does seem appropriate to determine that the other party would reasonably, objectively conclude that such conduct, despite the utterances and writings of the recalcitrant party, meant that the non-disclosing party had no “normal” terms available for such incorporation into the written agreement. Thus, on an application of the principles canvassed, I hold that there was no incorporation of GLB’s “normal terms of purchase” into the WAF Agreement.
  1. [56]
    As for incorporation of Exel’s Terms and Conditions of Trade, they were expressly incorporated into the executed WAF (and had earlier been disclosed in full when sent by an email accompanying the WAF “offer”). The fact that GLB made the annotation of “subject to prior email conditions” does not negative that conclusion. How both sets of “terms” could have been interpreted (to the extent of any inconsistency) is not necessary to determine here. That annotation did not reject Exel’s express incorporation but merely sought to add GLB Terms as well – though unsuccessfully.

Effect of Exel’s cessation of work

  1. [57]
    It is common ground that Exel did not do any further drilling, or firing, subsequent to the Third Shot Fired.
  1. [58]
    The reasons advanced by both parties for how that happened are not identical.
  1. [59]
    From Exel’s perspective, MrKemp gave evidence that it had no choice but to withdraw its drilling machine because it had ceased to be effective for its purpose and that the machine could take one month to effect necessary repairs to it. MrKemp also stated that the discussion that he had with MrByrne involved the former saying that GLB ought supply a hired rig and Exel supply the drilling personnel, adding “that wasn’t taken up” by GLB. I reject Mr Byrne’s assertion that GLB offered that it would itself “dry hire” another drilling rig at this time, if only because Mr Byrne was the driving force behind GLB not paying any part of the outstanding $135,555.79. Exel acknowledges that GLB then contracted with Sequel Drill & Blast Pty Ltd to continue, and eventually complete, the drilling and blasting: see Exhibit 1 – Tab 24.
  1. [60]
    Since I have concluded that there was no obligation on either Exel or GLB to engage the other for some specific production of crushed rock (be it 111,000m3 of rock, or 110,000m3, or some higher, or lower, figure), it is unnecessary to discuss the consequences of Exel’s cessation if I were to have concluded that such an agreement existed.
  1. [61]
    Nevertheless, it is necessary for me to consider the position that GLB took of refusing to make any payment after it paid part of Exel’s first invoice, leaving a balance of $135,555.79. GLB’s approach was to refuse to pay any further sum on the basis that its asserted set-off (which it had then not determined in any concrete way as to what monetary extent was involved) would at the least exceed that sum of $135.555.79. It sits ill for GLB in its written submissions to contend that, strictly construed, the only invoice outstanding was the balance of the first invoice, when it could not be clearer that GLB was refusing to pay any further sums to Exel. It might be added - were I to be wrong about there being no agreement for mutual obligations owed by both Exel and GLB to each other to continue their relationship until some specified volume had been produced - that Exel might well have been in the position to validly terminate the agreement in light of that refusal by GLB, subject to any equitable set-off notionally raising injunctive restraints. If that were not to be available on such an equitable ground or on such common law grounds as a repudiation of GLB’s obligations to pay Exel at all and to continue to refuse to pay (seemingly forever – noting that the amount of the eventual counterclaim for this breach was $169,785.79), it may well have been that Clause 15.4, perhaps together with Clause 22.5, of the Terms and Conditions of Trade of Exel would have permitted the express contractual termination of the WAF Agreement, although, at all relevant times to such termination, GLB was not in a position to determine what was “owed” or “claimed to be owed” within the meaning of Clause 22.5. The defendant’s very late reliance, without seeking any amendment, on defences under the Australian Consumer Lawis not entertained in that context.

Recovery of damages

  1. [62]
    There are a number of aspects to the recovery in this case, insofar as it affects the defendant’s set-off and counterclaim.
  1. [63]
    The first aspect is an understanding of the “ruling principle” with respect to damages at common law for breach of contract. As elucidated by the High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd,[15]relying on Parke B in Robinson v Harman[16], the party sustaining loss is, so far as money can do it, to be placed in the same situation, with respect to damages, “as if the contract had been performed”: at 286 [13]. But that does not necessarily mean as good a “financial” position: also at 286 [13]. This is because, in some circumstances, not only must the work to be undertaken be necessary to produce conformity but also it must be a reasonable course to adopt. Thus, this further aspect is whether the damages which form the basis of the set-off are really the result of GLB acting reasonably in face of the established breach.
  1. [64]
    This consideration brings into play the so-called “duty to mitigate”. Recently, the Queensland Court of Appeal in Knott Investments Pty Ltd & Ors v Fulcher & Ors[17]considered, through the judgment of Muir JA, with whom Holmes JA and Atkinson J agreed, this issue, although in the context of breaches of the Trade Practices Act 1974 (Cth). By reference to Medlin v State Government Insurance Commission[18]the judgment discussed the decision under consideration as being whether “as a matter of common sense and experience” the breach should “properly” be “seen as having caused the relevant loss or damage”, with all relevant factors to be considered in confirmation, because they had a cumulative effect: at [43]. In determining whether that decision concerned conduct characterised as acting “reasonably in all the circumstances”, Muir JA held that the reasonableness of the conduct in response to, or as a result of, a defendant’s wrongful conduct is directly relevant to the question of whether the wrongful conduct has caused the plaintiff’s loss, referencing Henville v Walker[19]: at [44]. In terms of principles applicable to mitigation, Muir JA indicated that such “may be thought to have relevance” in considering the reasonableness of the actual conduct; and, in that regard, Muir JA noted that it had been held that a plaintiff is not under “any obligation to do anything other than in the ordinary course of business [to mitigate his loss]… [and that] the plaintiff is not required to sacrifice or risk any of his property or rights”: at [45], referring to Sacher Investments Pty Ltd v Forma Stereo ConsultantsPty Ltd & Ors.[20] 
  1. [65]
    Specifically with reference to Victorian and New South Wales Authority, Muir JA adopted relevant observations to the effect that the measures which the sufferer from a breach of contract may be driven to adopt “ought not to be weighed in nice scales”, such that, so long as the party not in breach can be seen to have acted reasonably and justifiably in the circumstances, that party should not be debarred from recovering the actual loss flowing to it simply because it is asserted that, by taking some other course, the loss might well have been lower: at [45].
  1. [66]
    As explored by McMurdo J in BHP Coal Pty Ltd & Ors v O & K Orenstein & Koppel AG & Ors,[21]the question of what is reasonably necessary for the purpose of making good a plaintiff’s loss is not whether the conduct undertaken was reasonable as a business decision but, rather, whether the conduct was reasonably necessary to put a plaintiff in the position which it would have enjoyed but for the breach of contract: at [750]. He also observed that, in assessing what was reasonable in the relevant sense, while it is often easy after an emergency has passed to criticise the steps which had been taken to meet it, such criticism does not come well from those who have themselves created the emergency: at [751], by reference to cited authority. Even so, in considering the facts of the case that he was then considering, McMurdo J stated that to spend more for an advantage, while it may make perfect commercial sense, if it was to obtain a benefit which the plaintiff did not have prior to the breach, it was not a consideration relevant to the present question: at [759].
  1. [67]
    The third aspect concerns expenditure (whether actual or accounting based) and whether it constitutes claimable damages. In BHP Coal, McMurdo J, in a consideration of the admissibility of books kept by a body corporate under the requirements of the Corporations Act 2001 (Cth), pursuant to s 1305, after noting that the relevant document is prima facieevidence of the fact, determined that it is a question of whether, on the evidence as a whole, that particular fact is “established”: at [797]. He further observed that there is, clearly, scope for error in such record keeping and that, where persons who may have made such errors were not called, it did not, at least there, warrant a Jones v Dunkel inference: at [798]. In the consideration, in particular, of the use of existing employees, rather than engaging new employees to do the same work, McMurdo J, after considering many (some purported) relevant authorities, noted the following propositions:
  • the fact and, if so, the extent of the diversion of staff time both need to be properly established and if, in that regard, evidence which it would have been reasonable for a claimant to adduce is not adduced, the claimant is at the risk of a finding that the “loss” has not been established;
  • the claimant also has to establish that the event caused “significant disruption” to the claimant’s business;
  • even though it may well be that, strictly, the claim should be cast in terms of a loss of revenue attributable to the diversion of staff time, nevertheless, in any ordinary case and unless the defendant can establish to the contrary, it is reasonable for the court to infer from the disruption that, had the staff time not been thus diverted, such staff would have applied it to activities which would, directly or indirectly, have generated revenue for the claimant in an amount at least equal to the costs of employing the staff during that time;
  • the reality is that, in many cases, particularly where the delay affects a small part of a large contractor’s total resources, the contractor’s organisation has sufficient flexibility to cope with the extra time on site without sacrificing any other contracts that may be available, so that the contractor’s total overhead return of profit is not in fact adversely affected by the delay, or not to the extent claimed (on foot of the usual mathematical formula);
  • on the other hand, where a major part of the contractor’s resources are tied down on a site because of a delay, the ultimate length of which is not known, the contractor genuinely may be inhibited from tendering for other work at competitive rates, such that the edge may be taken off the contractor’s tendering in a way not susceptible to very clear proof (with the difficulty being to establish the real facts); and
  • since the impact upon a contractor’s resources as a whole needs to be shown to have had the likely effect of inhibiting the contractor’s operations, with proof of such a likely impact being necessary, it is not simply a matter of saying that a plaintiff should recover as if it had incurred an incremental cost by engaging outsiders to do the same work;

:at [806] – [808].

  1. [68]
    The fourth aspect intrinsically involved in the consideration of damages, particularly considering remoteness, it is the effect of the two limbs of Hadley v Baxendale[22]. Those are expressed in terms of what may fairly and reasonably be considered either as arising naturally (that is, according to the usual course of things from such a breach of contract itself) or may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the proper result of the breach of it: at 354. In their consideration of that seminal decision in The Commonwealth v Amann Aviation Pty Ltd,[23]Mason CJ and Dawson J wrote that it is now accepted that the statement of the two limbs “is the statement of a single principle” and that its application “may” depend upon the degree of relevant knowledge possessed by the defendant in the particular case: at 92. Nevertheless, as they noted in the case then under consideration, the application of that rule turned not on the degree of knowledge possessed by the defendant but on what might reasonably be supposed to have been in the contemplation of the parties as the probable result for the breach: also at [92]. Mason CJ and Dawson J then held that what was in the contemplation of the parties “depends upon a consideration of the terms of the contract in light of the matrix of circumstances in which it was made”: also at 92. From the conclusions that I have already reached, both parties knew of the relative urgency of producing the right quantity and quality of rock for Queensland Rail. Hence, it was within the contemplation of the parties that any shortfall from a shot-firing such as from the First Shot Fired would need to be obtained in a timely fashion.

Calculation of damages

  1. [69]
    From GLB’s perspective, MrByrne was the source of the relevant evidence concerning GLB’s response to Exel’s position of being unwilling to take responsibility for the oversize rock from the First Shot Fired. Although MrByrne referred to the obligation on GLB, on a daily basis, to have 4,000m3 fully stockpiled of road base (approved by a NATA-accredited lab) available each day, and that liquidated damages of $1,000.00 per tonne per day were potentially payable, those aspects only seemed to be part of the case actually run, from a damages perspective, as relevant to the necessity for immediacy of GLB’s response and to how “reasonably” to react. Although there was no claim, by way of counterclaim by GLB, resulting from any failure based upon the lack of availability, each day, of such 4,000m3and, on the evidence, Queensland Rail did not seek liquidated damages at $1,000.00 per tonne per day, or at all, I accept that MrByrne was concerned (at the relevant time of being informed by Exel of its difficulties in continuing) about such issues. I do accept that from the perspective of GLB’s management, it was necessary to react immediately to its obligation to Queensland Rail to continue providing crushed rock of the requisite quality.
  1. [70]
    Despite the above mentioned concession by Exel that the oversize rock produced was approximately 10% to 20% of the rock produced by the First Shot Fired, the evidence that I accept is that of Mr Sanderson (whose “estimate” was from 20% to 25%). As I have accepted that his understanding of day-to-day operations, and his recollections of such operations, were to be preferred in any clash with other witnesses (rather than documents), I am content to make a finding that there was  20% which was oversize (being the most accurate figure that the evidence lets me determine).
  1. [71]
    Mr Sanderson’s evidence was that the quality of block in the oversize product would, if not included, reduce the quality of the crushed rock from that First Shot Fired. The explanation given by Mr Byrne that, because of time constraints, GLB had no option but to sort out and break the oversize rock is consistent with the evidence just canvassed of Mr Sanderson. For reasons already expressed, I accept that Mr Sanderson’s explanation is correct. This is despite Exel’s attack in its written submissions’ on Mr Sanderson’s recollection through his evidence given concerning GLB’s Daily Production Register. One aspect, however, of Exel’s contentions concerning that Register is that it is submitted that it is unlikely that time constraints were a significant concern to GLB. In light of the findings just made, and in the absence of supporting evidence for the contention, I reject it. While on the issue of the extent to which the production of oversize rock from the First Shot Fired might have provided a source of supply to GLB in its contract with Leighton for the use of such rock on bridges, the examination of Mr Sanderson on this score was productive more of confusion than clarity. This, of course, was not helped by the fact that the Daily Production Register, on its face, asserted that it was relevant to February 2011. As explained by MrSanderson, the actual document which was exhibited was an “updated” sheet. What is able to be extracted from the document and the questions directed to what it meant appears to reveal that, as at February 2011, GLB had 22,000 tonnes already stockpiled of oversize rock and their obligation, at that time, was only to produce 24,000 tonnes in total. Additionally, there was some “previous scour rock” available such that GLB had 25,710 tonnes as against an order of 24,000 tonnes. The reference in the Register to 40,000 tonnes was something, according to MrSanderson, that came subsequently, since the further answers he gave in cross-examination show that the indication that Leighton wanted “more” occurred in April/May 2011. Additionally, from his own memory and not from the Register, MrSanderson indicated that Leighton said “they didn't know” as “the designers were still working on it” and that Leighton told GLB that the “river levels were too high” and they would not need any of the additional rock until August/September 2011, meaning that there was “no pressure at all to produce any more material” on GLB.
  1. [72]
    GLB elected to address the issue of the oversize rock produced from the First Shot Fired by engaging its own machinery and personnel to hammer the oversize rock into sizes which would fit in the existing crushers for the production necessary for Queensland Rail. At this point, it needs to be reiterated that the amount claimed in the counterclaim for the sorting and breaking of this rock was $249,565.00, vastly exceeding the sum sought in the invoice for the First Shot Fired (namely $68,465.85). In its written Outline of Argument, GLB reduced its claim to $243,355.00 (citing absence of supporting company records).
  1. [73]
    Before considering whether that figure could be justified on any basis, it is necessary to consider whether, although authority clearly establishes that GLB was financially entitled to do what it saw fit, some other reasonable course was open to GLB at that time (i.e. did mitigation apply?).
  1. [74]
    The first possibility is that, given, in relative terms at least, the lower cost of paying for further drilling and shot firing to produce that 20% (less the 1% to 2% tolerance) of the product on the First Shot Fired, as adequately sized rock for GLB’s crushers, that course was the one which should have been taken. But it was not explored in any way by any party in evidence. It does seem to be one way that might have been open as a reasonable course to follow (considering the vast difference between the cost of sorting and breaking as against the cost of some further, limited drilling and shot firing, especially where GLB’s crushers were to be used anyway, no matter what course was followed). But a considerable hurdle to Exel voluntarily doing it then would have been Exel’s insistence that any “excessive” oversize rock produced was not its fault.
  1. [75]
    Next, Exel’s written submissions contend that, concerning the oversize rock – accepted by me (above) as 20% – which was, as pleaded in GLB’s amended pleading, some 8,273 tonnes, in circumstances where MrSanderson had conceded that GLB might be required to produce 40,000 tonnes for Leighton, GLB could have, but did not, mitigate its loss by utilising the oversize to fulfil that contract “with the effect that the oversize would have been cleared to allow further blasting by” Exel. One immediate problem with that contention is that Exel after the Third Shot Fired had no capacity to undertake further blasting within any reasonable time. A further, significant, problem was that GLB had strict deadlines to meet with Queensland Rail. This contention also overlooks the fact that there was no evidence that contradicted the fact that GLB independently, and at a cost effective timing later on, was able to obtain all the oversize rock it needed to satisfy its obligations to Leighton. It was never examined at trial whether the 8,273 tonnes was already necessary, at that time, for supply to Leighton (i.e. at the time before Exel terminated the WAF Agreement) or what the cost would have been, if any, to GLB to “store” the oversize rock until it were to be needed, if it in fact ever were to be, by Leighton. But the major problem is that I have accepted that MrSanderson stated that the particular oversize rock would reduce the quality of the crushed rock able to be processed immediately from the First Shot Fired. This particular contention by Exel does not address that concern.
  1. [76]
    Turning, then, to the sums claimed by GLB (which on their face appear to be way out of proportion to the consideration payable under the Tender Document), I find that, apart from the requirement to purchase four new hammers, the use of equipment and personnel which was utilised in the various items of work done to generate the pleaded claim of $249,565.00 was done by using GLB’s own equipment and own personnel. GLB led no evidence that any outside legal entity would have desired to have contractually engaged GLB to use, or even to hire from GLB, such machinery and such personnel, so that it could be concluded by this Court that GLB had been deprived of earning income by the utilisation of such machinery and such personnel for this rectification of the oversize rock produced. As canvassed in BHP Coal, there is no basis upon which I can conclude, on the balance of probabilities, that the sorting and crushing of the oversize rock caused “significant disruption” to other parts of GLB’s business. There was, for instance, no examination with respect to GLB’s personnel that their time would been applied to activities which would, directly or indirectly, have generated revenue for GLB in an amount at least equal to the cost of employing such personnel for such an operation during the relevant time. As similarly canvassed there, there is no evidence that GLB’s total overhead return of profit was in fact adversely affected by the use of such equipment and such personnel. There was no attempt to establish that there was some kind of inhibition in tendering for other work at competitive rates such that the edge was taken off at GLB’s tendering, even if it was not susceptible to very clear proof. Accordingly, GLB faces the problem of seeking recovery as if it had incurred an incremental cost by engaging outsiders (with their equipment) to do the same work, in circumstances where there is no proof of such an impact. Besides, there is no evidence of an allowance for the acceptable 2% oversize rock produced without breach. If I were to otherwise accept GLB’s figures, a deduction of 10% would have to be allowed where the only reasonable inference from the evidence is that allthe oversize rock was broken up and crushed by GLB in its efforts.
  1. [77]
    As earlier indicated, there was, even so, the purchase of four additional hammers. But there was no examination with respect to those hammers that they might not, in the long term, be the source of increased capacity which had revenue generating effects so as to offset any wear and tear that might otherwise be attributed to such machinery or offset the depreciation inevitably accompanying further use.
  1. [78]
    It is necessary to address Exel’s contentions concerning significant deficiencies in the breakdown of the charge referable of the machinery used and the personnel employed to use it. To the extent that there was disagreement between MrSanderson and MrByrne, for the reasons already repeatedly stated, I accept MrSanderson’s evidence, particularly given his position in GLB and his instruction to the relevant project manager to detail all expenses used. To the extent that Exel criticised the books kept by GLB, as a body corporate it is clear from the examination of s1305 of the Corporations Act that GLB’s entries, being initially prima facieevidence of the fact recited by the entry, can be determined on the whole of the evidence to be “established”. Except for a few of the entries to be considered next, there is nothing in the evidence of MrSanderson with respect to the handwritten timesheets prepared as part of the records of GLB which does not support the conclusion that it was “established”. The evidence of handwritten “ticks” beside certain entries became part of the records kept by GLB. While errors might be able to be identified in a summarisation of such “ticked” timesheets when converted to a spreadsheet, the timesheets themselves – subject to identified errors – stand in this case, in the absence of any realised contradiction, as establishing the relevant facts. It therefore matters not that it was MrByrne rather than MrSanderson who placed the “ticks” on the timesheets.
  1. [79]
    Turning then to the cross-examination of MrSanderson: the absence of pre-start checklists or job cards has not been proved to negative the entries made by the personnel who handwrote the timesheets of the work to the effect they had actually done for GLB. As for the contention by Exel that the hourly costs for machinery utilised were “not an accurate reflection of the actual use of that machinery”, the contention is an attack upon the calculation of the hourly rate based upon evidence extracted from Mr Sanderson who accepted that some machines were actually used for twice the number of hours per month. But the point being made by MrSanderson was that some guidelines needed to be followed on costing. Those guidelines were worked out over the long term. He instanced a normal period of some five years at 1,800 hours per year and that that produced an “effective life” of the machine. Consequently, he stated that the costs that “you are going to charge people” are rated on that theoretical basis, asserting that, in this case, on average, for the relevant period GLB did “very poorly, very poorly indeed”. But the problem that this cross-examination does create for GLB is that, as Mr Sanderson went on to acknowledge, the examination was not as to profit but as to imputed cost. That aspect of this issue, thus, bears upon the matters relevantly raised by BHP Coal.
  1. [80]
    As to the submission by Exel that, for instance, the hourly rate of $270.00 claimed for the use of the PC750 was not correlated, Mr Sanderson conceded that GLB was not “very experienced with – at that stage – with what we would get in the city, because we hadn’t hired them in the city, because they’re very, very big machines, alright… (a)nd so, basically, what we put in was what we thought we would achieve in the city”. To the extent that the spreadsheet relied upon by Mr Sanderson did not, in fact, correlate with evidence lead by GLB about the actual hourly rate, then some initial concern may be is appropriate. But, as is clear from Mr Sanderson’s evidence, the rates actually charged (Exhibit 1 – Tabs 21 and 22) were considerably lower than those in the spreadsheet and were “commercial” rates, “not punitive” but “reasonable”, and “didn’t include profit”. Besides, Mr Sanderson’s basis was Brisbane-based rates. He estimated the true local rates to be some 30% higher. Therefore, since I generally accept his evidence, I see no reason not to allow recovery, if any, at the rates contended for.
  1. [81]
    Although it might be arguable that GLB’s evidence is not sufficiently clear to establish a proper basis for its claim for damages resulting from the breach of the contractual obligation to exercise reasonable care and skill, and arising from negligence (of the same kind), apart from, in mitigation terminology, choosing a “reasonable” course of causing an extra drill and shot fire to be undertaken to supply the deficit of 8,273 tonnes (less 2%), I conclude that such a course as that was not, in fact, open to GLB. First, there was no evidence from Exel that it would undertake that task for no remuneration – particularly where it continued to deny responsibility for that deficiency. Secondly, GLB was in no position to immediately engage another driller/firer (such as Sequel), particularly after signing the WAF on 18 March 2011. Thirdly, Exel did not lead any evidence, being the entity most capable of doing so, to show that time was available to conduct another drill and shot fire operation in sufficient time to allow GLB’s continuing obligation to fulfil the delivery of the rock quantity to Queensland Rail, especially where, according to GLB’s documentation, the rock breaking and crushing was undertaken between 11 March 2011 and 30 April 2011 and the crushers were able to be utilised during that time without any evidence of disruptive interruption. Fourthly, there was no evidence that GLB’s ability to win rock from firing would have contractually allowed it to undertake such further extraction from the Southern Resource. Overall, it would not have been a reasonable course to follow.
  1. [82]
    What, then, should be the approach? Clearly there has been a breach for which nominal damages would not be an adequate legal response. As noted in HTW Valuers v Astonland Pty Ltd,[24]approving Barwick CJ in Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd,[25]provided that there is some evidence of damage, in the field of assessing damages, “a tribunal of fact must do the best it can in assessing damages”: at 661 [47]. The Court is able to determine that GLB has incurred internal “costs” in undertaking remedial measures for the established breach. Since Exel “created” the “emergency” (to use BHP Coalterminology), it can not be too critical of what GLB did in response. As for establishing the extent of the loss, given the lack of any other basis for calculation, it can only be through use of the items appearing in consolidated form in GLB’s spreadsheet and making adjustments for matters not accounted for or any established incorrect calculation of “charging”. The figure contended for by GLB (after reduction for acknowledged flaws) is $243,355.00. There is no evidence that the figure is not for the full 20% of the oversize rock produced. Thus, it can be reasonably inferred that it should be further reduced by 10% to reflect the inevitable by-product of oversize rock (being 2% in 100% of product) even if no breach had occurred. The resulting figure is $219,019.50.

Legal and equitable set-off

  1. [83]
    As examined in Derham on the Law of Set-off,[26]there may no longer be in Queenslanda statutory right of set-off in the case of mutual debts. The Uniform Civil Procedure Rules1999 simply recognise a procedure for giving effect to a set-off, by providing that a set‑off can be relied upon as a defence, being particularly relevant to equitable set-off (which was given effect before the Judicature Actsby way of an injunction to restrain proceedings at law): at [2.82]. Because this is not a case of mutual debts, the only consideration that needs to be undertaken is how, in this State, the effect of equitable set-off through the application of the UCPR[particularly r.173(1)] has effect here.
  1. [84]
    As is further explored by Derham, a characteristic of the form of equitable set-off which arises in the case of closely connected cross-claims is that it operates as a true, or substantive, defence, leading to the suggestion that it is better described as an equitable defence rather than a set-off: at [4.29]. Nevertheless, the defence has no effect until judgment; but it needs to be recognised that a debtor is still entitled to withhold payment of the debt to the extent of the equitable set-off because this accords with the view that, while circumstances exist which support an equitable set‑off, it is unconscionable for the creditor to regard the debtor as being indebted:  at [4.33].
  1. [85]
    Turning to the circumstances of this particular case, situations where there is a claim for a sum of money payable under a contract which is met by a claim for set-off in respect of a damages claim for breach of that contract are a prime source of equitable set-offs. Such a prime example is Hanak v Green[27]where the plaintiff sued the defendant builder for breach of contract for failing to complete, or properly complete, certain items of work and the defendant counterclaimed, and claimed by way of set-off, among other claims, a loss that was alleged to be caused by the plaintiff’s refusal to admit the defendant’s workmen to the site (being one of the reasons why the defendant had not completed the work):  analysed at [4.05]. An example of a failure to allow an equitable set-off is Bayview Quarries Pty Ltd v Castley Development Pty Ltd[28]. There the plaintiff was suing for the price of goods delivered to the defendant pursuant to an arrangement involving a running account between the parties. It was held that a cross-claim for damages arising out of defects in other earlier deliveries did not constitute a sufficient reason in equity to protect the defendant from the plaintiff’s demand, even though, because of payments made pursuant to the running account, the defendant had already paid for defective goods: analysed at [4.20]. While there are other authorities which suggest that damages payable for breach of one contract can be set-off in equity against the price payable under another contract [4.21], as closely analysed by Derham, the general principle is that, in appropriate circumstances, claims under separate contracts can give rise to an equitable set-off, but that, if the separate contracts “in truth each involve separate transactions”, a set-off generally should not be allowed:  at [4.91]-[4.93].
  1. [86]
    The present case is not one (because of the decisions that I have reached in this particular case) where the plaintiff and the defendant have had their dealings subject to an overriding agreement. If that had occurred, the argument would be stronger, if not strongly persuasive, that an equitable set-off would exist for all three claims pursuant to the three Shots Fired. In the circumstances here, given the nature of the jurisprudence behind a set-off, there is no strong ground for concluding that it would be unconscionable for Exel to regard GLB as continuing to be indebted for the invoices which were raised with respect to the Second Shot Fired and the Third Shot Fired (which were undisputed).

Set-off and Counterclaim

  1. [87]
    The plaintiff is prima facie entitled to recover $135,555.79. Because of the principles applicable to set-off, since the failure to exercise reasonable care and skill is so closely connected with work justifying their claim for the balance of the account for the First Shot Fired, a defence by way of set-off applies to the sum of $34,226.80 alone. Thus, the plaintiff’s claim is not fully extinguished, but is reduced by that sum. Exel therefore can recover $101,328.94 on its claim.
  1. [88]
    As for the balance remaining of the counterclaim, GLB has established its claim to the sum of $184,792.70.
  1. [89]
    As for interest, neither party has given any specificity to support either its claim for, or response to a claim for, interest. Exel, at least by its pleading, has relied on contractual interest. For GLB, especially where I have not determined that GLB’s “normal” terms were incorporated, and where no evidence was led of relevant commercial rates, interest pursuant to s 58 of the Civil Proceedings Act 2011 will be at the rate so determined by that provision. I hold, by reason of s 58(2)(b), that s 58 is inapplicable to Exel. Nevertheless, where there was no evidence at trial of any discretion being exercised to compound interest (the denial of paragraph 10 of the Statement of Claim requiring such evidence), I will calculate it at the simple interest rate. I will calculate both sets of interest from the date each was first claimed in the party’s relevant pleadings in a properly articulated way. It is to be noted that the October 2012 pleading of GLB sought a sum less than I have allowed (before adjustment). Therefore the November 2012 pleading date has been used.
  1. [90]
    I will give leave to both parties to file submissions on costs. My preliminary view is that, given that one set of costs will be set-off against the other (as with the judgments), and given the amounts of the prospective costs of preparation for, and conduct of, the assessment, no order as to costs should be made.

 

Footnotes

[1] [2013] NSWSC 687 at [64], citing relevant appellate authorities.

[2] [2009] NSWCA 234.

[3] (2004) 219 CLR 165 at 176-178.

[4] (2000) 201 CLR 520.

[5] [2013] QSC 233.

[6] (1995) 185 CLR 410, at 442-447.

[7] [2010] NSWCA 323.

[8] [2005] UKHL 7.

[9] (1973) 129 CLR 629.

[10] [1968] SASR 394.

[11] [2008] QCA 375.

[12] [1966] 1 WLR 287, at 339.

[13] [2011] NSWSC 749.

[14] [2012] QDC 150.

[15]  (2009) 236 CLR 272.

[16] (1848) 1 Exch 850 at 855.

[17] [2013] QCA 67.

[18] (1995) 182 CLR 1 at 6.

[19] (2001) 206 CLR 459.

[20] [1976] 1 NSWLR 5 at 9.

[21] [2008] QSC 141.

[22] (1854) 9 Exch 341.

[23] (1991) 174 CLR 64.

[24] (2004) 217 CLR 640.

[25] (1977) 16 ALR 23 at 26.

[26] Rory Derham (Oxford University Press, 4th ed, 2010).

[27] [1958] 2 QB 9.

[28] [1963] VR 445.

Close

Editorial Notes

  • Published Case Name:

    Exel Drilling P/L v GLB Quarrying & Logistics P/L

  • Shortened Case Name:

    Exel Drilling P/L v GLB Quarrying & Logistics P/L

  • MNC:

    [2013] QDC 244

  • Court:

    QDC

  • Judge(s):

    Dorney QC DCJ

  • Date:

    04 Oct 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bayside Quarries Pty. Ltd. v Castley Development Pty. Ltd. [1963] VR 445
1 citation
Jump To
Cite 1 - [1963] VR 445
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG [2008] QSC 141
2 citations
Jump To
Cite 1 - [2008] QSC 141
Cite 2 - [2008] QSC 141
Brambles Holdings Ltd v WMC Engineering Services Pty Ltd (1995) 14 WAR 239
1 citation
Jump To
Cite 1 - (1995) 14 WAR 239
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520
2 citations
Jump To
Cite 1 - (2000) 201 CLR 520
Cite 2 - (2000) 201 CLR 520
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
2 citations
Jump To
Cite 1 - (1991) 174 CLR 64
Cite 2 - (1991) 174 CLR 64
Daoud v Boutros [2013] NSWSC 687
2 citations
Jump To
Cite 1 - [2013] NSWSC 687
Cite 2 - [2013] NSWSC 687
Godecke v Kirwan (1973) 129 CLR 629
2 citations
Jump To
Cite 1 - (1973) 129 CLR 629
Cite 2 - (1973) 129 CLR 629
Hadley v Baxendale (1854) 9 Ex Ch 341
2 citations
Jump To
Cite 1 - (1854) 9 Ex Ch 341
Cite 2 - (1854) 9 Ex Ch 341
Hanak v Green (1958) 2 QB 9
2 citations
Jump To
Cite 1 - (1958) 2 QB 9
Cite 2 - (1958) 2 QB 9
Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287
2 citations
Jump To
Cite 1 - [1966] 1 WLR 287
Cite 2 - [1966] 1 WLR 287
Hays Personnel Services (Australia) Pty Ltd v Motorline Pty Ltd [2008] QCA 375
2 citations
Jump To
Cite 1 - [2008] QCA 375
Cite 2 - [2008] QCA 375
Henville v Walker (2001) 206 CLR 459
2 citations
Jump To
Cite 1 - (2001) 206 CLR 459
Cite 2 - (2001) 206 CLR 459
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
2 citations
Jump To
Cite 1 - (2004) 217 CLR 640
Cite 2 - (2004) 217 CLR 640
Knott Investments Pty Ltd v Fulcher[2014] 1 Qd R 21; [2013] QCA 67
2 citations
Jump To
Cite 1 - [2013] QCA 67
Cite 2 - [2013] QCA 67
La Rosa v Nudrill Pty Ltd [2013] WASCA 18
1 citation
Jump To
Cite 1 - [2013] WASCA 18
Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233
2 citations
Jump To
Cite 1 - [2013] QSC 233
Cite 2 - [2013] QSC 233
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
2 citations
Jump To
Cite 1 - [2009] NSWCA 234
Cite 2 - [2009] NSWCA 234
Medlin v State Government Insurance Commission (1995) 182 CLR 1
2 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Moy v Pettman Smith (Firm) [2005] UKHL 7
2 citations
Jump To
Cite 1 - [2005] UKHL 7
Cite 2 - [2005] UKHL 7
Powell v Jones (1968) SASR 394
2 citations
Jump To
Cite 1 - (1968) SASR 394
Cite 2 - (1968) SASR 394
Pritchard v Trius Constructions Pty Ltd & Ors [2011] NSWSC 749
2 citations
Jump To
Cite 1 - [2011] NSWSC 749
Cite 2 - [2011] NSWSC 749
Robinson v Harman (1848) 1 Ex Ch 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex Ch 850
Cite 2 - (1848) 1 Ex Ch 850
Sacher Investments Pty. Ltd. v Forma Stereo Consultants Pty. Ltd. (1976) 1 NSWLR 5
2 citations
Jump To
Cite 1 - (1976) 1 NSWLR 5
Cite 2 - (1976) 1 NSWLR 5
Sherrin Rentals Pty Ltd v Mac-Attack Equipment Hire Pty Ltd [2012] QDC 150
2 citations
Jump To
Cite 1 - [2012] QDC 150
Cite 2 - [2012] QDC 150
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
2 citations
Jump To
Cite 1 - (2009) 236 CLR 272
Cite 2 - (2009) 236 CLR 272
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23
2 citations
Jump To
Cite 1 - (1977) 16 ALR 23
Cite 2 - (1977) 16 ALR 23
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
2 citations
Jump To
Cite 1 - (2004) 219 CLR 165
Cite 2 - (2004) 219 CLR 165
Weller v Phipps [2010] NSWCA 323
2 citations
Jump To
Cite 1 - [2010] NSWCA 323
Cite 2 - [2010] NSWCA 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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