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  4. Wilson's Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd - [2017] QDC 29

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Wilson's Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd[2017] QDC 29

Wilson's Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd[2017] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson’s Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd [2017] QDC 29

PARTIES:

WILSON’S PLANT HIRE PTY LTD

(plaintiff)

v

THE PIPE KING (AUST) PTY LTD

(defendant)

FILE NO/S:

D4989/2015

DIVISION:

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26-29 September 2016

JUDGE:

McGill SC DCJ

ORDER:

Judgment that the defendant pay the plaintiff $9,955.11, including $1,425.91 by way of interest.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Remuneration – whether work within scope of contract – whether extra payable for latent conditions – whether additional work requested – delay – whether damage caused by actions of defendant. 

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – applied.

Thiess Services Pty Ltd v Mirvac Qld Pty Ltd [2006] QCA 50 – applied.

Watson v Scott [2015] QCA 267 – applied.

COUNSEL:

M. J. Thompson for the plaintiff

M. D. Ambrose for the defendant

SOLICITORS:

John Walker Lawyers for the plaintiff

Grants Law Firm for the defendant

  1. [1]
    The defendant was a subcontractor for the civil drainage and stormwater works for a building being constructed in Railway Terrace, Milton. It entered into a contract with the plaintiff for the plaintiff to do certain work in connection with underground storm water drainage. The plaintiff did some of the work covered by the contract in September and October 2015 but there were difficulties between the parties and the contract was abandoned. There was no issue between the parties as to the circumstances surrounding the termination of the contract, but the plaintiff claims that it is entitled to be paid for work it did under the contract or otherwise at the request of the defendant, and for which it has not been paid.
  1. [2]
    The trial was on affidavit but there was lengthy cross-examination, and some further evidence in chief, so that evidence extended over most of four days, after which I received submissions in writing. I should record that subsequently in 2016, a number of communications were received by my associate apparently by one of the parties which had not been copied to the other party; these were referred to the Chief Judge, and I have never seen or been told of the content of these communications.

The setting

  1. [3]
    The new building occupied the end of the block between Manning Street and Walsh Street on Railway Terrace. The existing storm water drainage system collected storm water from Park Road and nearby areas of Milton Road, which was then brought down Railway Terrace as far as Manning Street. That plus the drainage from Manning Street went into a pipe which ran under private land in the block to Walsh Street[1] where there was a drainage pit which picked up a couple of other drains from Walsh Street and Railway Terrace, then a drain took it to the other side of Walsh Street.  From this point, one drain ran in the line of Walsh Street more or less directly to the river, while another pipe ran under private land to Crombie Street, then along Crombie Street and under private land beyond McDougall Street to the river. 
  1. [4]
    The plans for the development showed existing storm water drainage coming along Railway Terrace from Park Road and a substantial storm water drain in Manning Street. As part of the development, this was to feed into a 3 by 1.2 meter box culvert constructed along the southern boundary of the development, which in turn fed into a drainage pit in Walsh Street, identified as pit 4/1. A pipe running from Railway Terrace along Walsh Street also fed into this pit, which was drained by two 1500 mm pipes into another pit, 5/1, also in Walsh Street. The box culvert along the edge of the development site had already been constructed by the time the plaintiff began its work, though it was not connected at either end; the plaintiff’s work included constructing those connections. Evidently, the intention was that this box culvert would replace, and upgrade, the existing pipe running from Manning Street to Walsh Street.[2]  It is obvious, even to me, from the storm water layout plan that what was being constructed was not just for storm water drainage from the development site and immediate surrounds, but involved accommodating fairly substantial storm water drainage from elsewhere. 
  1. [5]
    So far as the plaintiff was concerned, water from pit 5/1 drained via an existing pipe to a drainage pit on the other side of Walsh Street. Mr Wilson appears to have assumed that it drained from there to Crombie Street and then discharged to the river, because Walsh Street rises to the south towards McDougall Street (p 97),[3] but the rise is not very great and there is no reason why that drain could not fall to the river.  The Walsh Street drain is much larger than the Crombie Street pipe,[4] suggesting that it is, in practice, the main outlet for the relevant storm water.  What matters, however, is that there were two storm water pipes between that pit and the river, either of which was a potential source of water from the river at high tide. 
  1. [6]
    The area where the building was to be constructed was relatively low-lying. The bottom of pit 5/1 was designed with an invert level of RL 0.632.[5]  During the trial the defendant had a surveyor measure the level of the floor of pit 5/1 as constructed, at RL 0.753.[6]  The surveyor also measured the water level at the outlet opposite Walsh Street on 20 September 2016 at what appeared to him to be a high tide, and found that the water had a level of RL 1.047.[7]  At about the same time, he measured the top of the water that was present in pit 5/1 at RL 1.073.[8]  Hence, when excavating for pit 5/1, the plaintiff was working below high tide level of the river.  Of course the surface level was well above high tide, but the pit was over 2.5 metres deep.  Mr Wilson’s view,[9] that they were considerably above the high tide level of the river, was unduly optimistic.  The surveyor’s evidence was uncontradicted, and I accept it. 
  1. [7]
    There was also evidence from the defendant that, when excavating the basement for the new building, water would regularly enter the excavation at times which appeared to correspond with high tide, so that it was necessary for work to be staged so as to avoid periods of inundation;[10] the water drained away again once the tide fell: p 3-90.  Indeed, the building was constructed so that the basement would have waterproof walls and floor,[11] and even ramps for vehicles into the basement had to rise a certain distance from street level before they peaked and began to slope down to the basement level, to keep out flood water from the street.[12] 

The contract

  1. [8]
    There was no formal contract document executed by the parties. On or about 13 November 2014 the plaintiff was sent an invitation to tender which included a set of plans and drawings as a “tender package”.[13]  The email said that the plaintiff was to allow for various things, including bitumen cutting and locating existing services.  On 27 November 2014 the plaintiff sent a tender in writing to the defendant to do the work for a stated sum, which was accepted by the defendant on 19 December 2014.[14]  There were no detailed terms and conditions incorporated into any of these documents, though the drawings included in the tender package provided to the plaintiff included two pages of “general notes”, some of which are relevant to the matters in dispute.  In particular, there was no provision in the contract between the parties for any variation by either party to the work required under the contract. 
  1. [9]
    It follows that the plaintiff can have no entitlement under the contract to any payment for any work not covered by the contract which it was required to undertake by the defendant. If such a situation arose, the plaintiff could only recover if it could show a variation to the contract, or an entitlement to be paid on a quantum meruit.  There was also no qualification to the tender price in relation to additional costs associated with “latent conditions” i.e. unexpected conditions underground.  On the face of it therefore the plaintiff was bound to do the contract works for the contract price even if unforeseen conditions made it more difficult and expensive,[15] at least unless the situation came within the scope of the doctrine of frustration, which was not relied on, I think correctly. 

The plaintiff’s claim

  1. [10]
    The plaintiff alleges that the parties subsequently agreed to some contract variations or, pursuant to the subcontract, the plaintiff varied the contract in respect of a number of matters. As I indicated, there was no express provision in the contract for either party to vary it with any defined consequences. It was submitted for the plaintiff that it was not necessary in the written agreement to make reference to variations to enable the plaintiff to succeed on this basis (para 9) but no authority for that proposition was cited, and it is contrary to the general proposition that one party to a contract cannot unilaterally vary it.[16]  In the alternative, the plaintiff claims that the work the subject of the pleaded variations was carried out by the plaintiff at the request, express or implied, by the defendant.  The defendant took the benefit of the work so that the plaintiff was entitled to reasonable remuneration for that work on a quantum meruit. 
  1. [11]
    For practical purposes, I do not think I need to decide whether any entitlement of the plaintiff arose on the basis of a variation to the contract, or in quantum meruit.  What matters is whether the plaintiff was required or requested by the defendant to do the work, on the basis that it would be paid for.  There is no evidence that there was ever any agreement on a particular amount of payment for any particular “variation,” so the plaintiff’s entitlement, if any, is to be paid reasonable remuneration for the particular work done in each case.  In those circumstances, the practical issues are whether the work the subject of each particular claim was work the plaintiff was required to do under the contract anyway, and if not, whether the defendant expressly or impliedly requested the plaintiff to do that work in circumstances giving rise to an obligation on the part of the defendant to pay reasonable remuneration for that work. 
  1. [12]
    Apart from these claims, the statement of claim also alleges that the defendant was in breach of its duty of care not to discharge or permit the discharge of water from the construction site which occurred on certain days in September and October 2015 and which caused delay and expense to the plaintiff. The defendant, in response to this claim, among other things, pleaded a factual defence which is specific to the proposition that it carried out water pressure pipe testing at the construction site in September and October, by alleging that the water so used was discharged into the sewage system, rather than into the storm water drains and thus into the plaintiff’s works. There was uncontradicted evidence to this effect from the defendant,[17] which I accept, but on its face the plaintiff’s pleading is not confined to the discharge into its works of water which had been used to carry out water pressure pipe testing at the construction site.  There are, however, other defences raised which I will consider later. 
  1. [13]
    Although the submissions in reply alleged that the drawings provided in the tender package were not suitable for the construction of the contract work, there was no claim pleaded in the statement of claim of negligence in the preparation of the drawings in the tender package, or that they involved misleading or deceptive conduct by the defendant. It is true that the various drawings, in particular, the ones relevant to the construction of the plaintiff’s work, were marked “issued for approval, not to be used for construction”.[18]  However, the defendant invited the plaintiff to tender for certain works in accordance with those drawings, and the plaintiff did tender for the works on that basis, which tender was accepted.  On the face of it, that gave rise to a contract to complete the works in accordance with those drawings, whether or not the person who drew them intended that they were used for construction.[19]  It would have been open to the plaintiff to tender on the basis that it be provided with “for construction” drawings which were not materially different from the drawings in the tender package, but it did not do so, and in fact it embarked on the work.[20]  In those circumstances I do not think that the plaintiff can complain about the fact that the drawings were marked “not for construction”.  There is also the consideration that the general notes in the drawings said, among other things:  “If there are doubts regarding civil design, contact the engineer for clarification.”[21]

Variations 1-3, 16.

  1. [14]
    These were referred to in the statement of claim as the “bitumen variation”. In substance, the plaintiff’s allegation was that the tender documents showed a bitumen depth of a maximum of 50 mm in the vicinity of the site, but when the plaintiff came to do the work it emerged that the depth of the bitumen on the road to be opened for the plaintiff to do work under the road was in the order 150 mm, which put the plaintiff to extra expense. It is true that there is a reference to a 50 mm depth for pavement on drawing 0126, but this is a reference to the depth of asphalt required for new pavement, not a reference to the depth of the existing pavement. These are three details on drawing 0126 for new pavement, depending on whether the new surface is more than 50 mm below the existing surface, less than 50 mm below the existing surface, or above the existing surface. Mr Wilson’s interpretation of the drawing[22] was wrong.   It does not appear to me that there is anything in the material provided by the defendant which indicated that the existing bitumen had a maximum depth of 50 mm.[23]  Paragraph 8(a)(i) of the statement of claim has not been proved.  I accept that until the road is opened it is not possible to know what the depth of the existing bitumen is, and that there is additional work and cost involved if the bitumen is 150 mm thick rather than 50 mm thick.  Nevertheless, the plaintiff offered in its written tender to do (among other things) “all road sawing as required” and it therefore accepted the risk that the amount of road sawing required would be more extensive than it had anticipated. 
  1. [15]
    Overall, I am not persuaded that this work was not work required under the contract, or that the plaintiff is entitled to any additional remuneration on any basis as a result of the existing pavement being thicker than it had anticipated. This part of the plaintiff’s claim fails.
  1. [16]
    I should however, on a precautionary basis, say something about the quantum of the plaintiff’s claim, which as pleaded came to $2,590.85 plus GST.[24]  Variation 1 claimed an additional $20 per metre for cutting 25 linear metres of asphalt; however, in the documents supporting Variation 1, there is a tax invoice from a concrete cutter indicating the amount in fact charged was $210 plus GST.[25] The plaintiff cannot claim more than the actual cost to it, even assuming that no concrete cutting would have been necessary had there been only 50 mm of asphalt.  The plaintiff also claimed an extra hour for an excavator and an extra 2.5 hours for a tip truck, two labourers and the supervisor.  This was disputed on the basis that this did not involve concrete cutting, but the plaintiff’s argument was that there was additional cost involved because the work was slowed down while concrete cutting was arranged and undertaken, which is reasonable. 
  1. [17]
    There was also a claim for the cost of hiring a site toilet, site fencing and the two steel plates for covering the excavation at night,[26] for which 0.6 of a day was claimed.  In theory if it takes longer to do the work, this will lead to extra cost for everything which is being paid for on a time basis, so on principle these are also recoverable, but there seems to be some inconsistency between claiming 2.5 hours for the other things and 0.6 of a day for these things. In view of the entry in the day book,[27] I allow 2.5 hours, or 0.3 of a day, for this delay. 
  1. [18]
    There is also a problem that the rates claimed in the schedule are not generally the rates in the documents supposedly supporting the variation.[28]  According to those documents, the hourly rate (in all cases plus GST) for the excavator was $110, for the tip truck $80, and for the fencing and the steel plates $7.40 and $100 a day.  The cost of two employees from a labour hire company, presumably the labourers, was $37.80 per hour for ordinary time, and Mr Wilson charged $109 per hour for acting as a supervisor.[29]  There was also a claim for the disposal of the asphalt, and a document showing quarry fees of $35 per cubic metre for dumping asphalt, but another document from the plaintiff tabulating tip fees does not include any amount paid for dumping asphalt.[30]  For specific costs, I allow $1,016.06, plus GST.[31] 
  1. [19]
    Apart from the specific costs, the plaintiff claimed a further 20 per cent for administration costs, and then 15 per cent of the enhanced total as profit. This seems a large claim, particularly given the claim for Mr Wilson personally as a supervisor, since the only other person involved in administration as far as I could tell on the evidence for the plaintiff was his daughter.
  1. [20]
    In relation to quantum, I also had evidence from two quantity surveyors. The plaintiff put in evidence a report from Mr Carey who had reviewed the variations prepared by the plaintiff, spot checked rates and other documents and expressed the view that they represented a fair valuation in respect of the work claimed, noting that they included administration at 20 per cent and a margin at 15 per cent, and expressed the view that the report was a true picture of the situation.[32]  He also prepared another report, specifically supporting the loadings of 20 per cent and 15per cent: Exhibit 9.[33]  On the other hand, I had a report from Mr Ross on behalf of the defendant (Exhibit 5) and he would have allowed, in respect of this variation, $100 for saw cutting plus profit and administration of 10 per cent, but nothing for the other costs on the basis that the work was no different if the cut was set at 150 mm rather than 50 mm.   That is not an answer to the plaintiff’s point that, had the depth been only 50 mm, it would have been possible to remove the asphalt without the use of saw cutting. 
  1. [21]
    I was generally not impressed with Mr Ross as a witness;[34] he seemed to me to be too willing to reject the plaintiff’s claims on a superficial basis, and appeared to be focusing on minimising any liability of the defendant rather than providing independent objective assistance to the court.  For example, he rejected claims for the costs associated with delay to the work on the basis that the contract work was not completed: p 4-45.  I also found more errors in the detail of his assessment than I would expect.  On the other hand, Mr Carey’s initial letter was superficial to the point where he failed to detect any of the numerous discrepancies between the detail of the claims and the supporting documents.  In oral evidence, he said that all he had been asked to do was to check whether the margins were correct, fair and reasonable: p 3-18.  He did not go through the schedule line by line: p 3-23.  He may not have had access to all the material exhibited to Ms Russell’s first affidavit. 
  1. [22]
    Mr Carey said that he would expect the margins to be higher for a contract of this nature, which is a relatively small contract being conducted in difficult circumstances: p 3-19; Exhibit 9. Mr Carey sounded quite dismissive of the suggestion of a 10 per cent margin overall, saying that no contractor would work for that, in a way which sounded quite convincing: p 3-27, p 3-29. On the other hand, the plaintiff’s claim still seems high, particularly in relation to the 20 per cent for administration. At one point, Mr Carey mentioned a distinction between onsite costs and offsite costs, and cited as examples of onsite costs “foreman, insurances, workplace health and safety, craneage” p 3-25. Here the supervision was provided by Mr Wilson and there was a separate claim for his time,[35] there was no craneage provided by the plaintiff, and to the extent that additional time was spent with other equipment, it was charged for. Although there were workplace health and safety considerations for the site, it is not obvious that they would have been greatly increased just as a result of this saw cutting work.  I suppose insurance was a time-based cost.  Mr Carey did indicate however that there were other items. 
  1. [23]
    On the whole, I do not think that the circumstances of this particular contract justify what Mr Carey acknowledged was a high percentage loading: p 3-19; Exhibit 9. Doing the best I can I allow 25 per cent loading to cover administration and profit. On that basis, my assessment of quantum for Variation 1 comes to $1,270.07, plus GST.

Variation 2

  1. [24]
    This variation in fact covered the cost of cutting into and demolishing pipes which were discovered in the course of excavation which were said to be not on the plan for pit 5/1. Specifically, it involved cutting pipes of 1050 mm, 850 mm and 375 mm diameter. It has nothing to do with the state of the bitumen and is therefore unsupported by anything alleged in paragraph 8(a) of the statement of claim. The plaintiff’s case here was in fact that the drawings did not show these pipes; specifically drawing 0157, showing the construction of drainage pit 5/1, showed only the two new 1500 mm pipes coming in from pit 4/1, and a pipe, the diameter of which was not identified, but which in fact was the outlet pipe to be connected into the proposed structure. The drawing refers to the fact that in the future another pipe is to be constructed by others. Drawing 151, also referred to (p 29), also shows only new pipes, as its function is to show the depth and slope of new works.
  1. [25]
    On the other hand, drawing 0150 shows a number of existing services, including existing stormwater drains, running into the drainage pit on the site of pit 5/1.[36]  There was a pipe running from drains in the vicinity of the intersection of Railway Terrace and Walsh Street, which was essentially to be replaced by a new pipe running into pit 4/1.  There was a pipe running along Walsh Street in the opposite direction.  There was a pipe running in from an existing curb gully located on the west side of Walsh Street between this site and the site of pit 4/1.  There were two other existing pipes shown running into that pit from the direction of the west side of Walsh Street; one of these was in fact the pipe which ran through from Manning Street referred to earlier, though that was not obvious from the plan.  Finally, there was the outlet pipe running across Walsh Street to the other drainage pit. 
  1. [26]
    The plans indicate that the pipeline from the north in Walsh Street will eventually be replaced by a new pipe to run into pit 4/1, but obviously there will be an existing service to maintain until that occurs. The pipe from the existing gully in the curb was marked “connect existing gully into 1500 mm pipe” on drawing 0150, so that was to be continued; nothing specific was indicated about the other existing pipes. In fact the pipe running from Manning Street was to be replaced by the box culvert, though that would not be apparent from these drawings, and it would be essential to keep that pipe in operation until the new works were in place to replace it.
  1. [27]
    The notes on drawing 0121 include under the heading “Stormwater Drainage Notes”:

“5.  Existing stormwater pipe locations and invert levels to be confirmed prior to commencement of construction.

…

  1. All existing stormwater drainage lines and pits that are to remain are to be inspected and cleaned. During this process, any part of the stormwater drainage system that warrants repair shall be reported to the superintendent and engineer for further direction.”

There was also a requirement to comply with BCC standards in various respects. 

  1. [28]
    Under the heading “Existing Services and Features” it was said, among other things:

“1.  The contractor must confirm the exact location and extent of existing services prior to construction and notify any conflict with the drawings immediately to the engineer/superintendent.

  1. Existing services unless shown on survey plan had been plotted from services search plans and as such their accuracy cannot be guaranteed.
  1. It is the responsibility of the contractor to complete a ‘dial before you dig’ search and to establish the location and level of all existing services prior to the commencement of any work. Any discrepancies shall be reported to the engineer/superintendent….

…

  1. The contractor shall allow for the capping off, excavation and removal or relocation (if required) to relevant authority’s guidelines of all existing services in areas affected by works….”
  1. [29]
    Insofar as there were existing drainage pipes running into the drainage pit that was to be replaced by pit 5/1, although these were underground they were ascertainable by an examination of that existing drainage pit, which was fitted with a manhole.[37]  The invitation to tender instructed the plaintiff to do so on the basis that it was responsible for locating existing services, as noted earlier.[38]  Mr Wilson acknowledged that he had seen the manhole during an inspection, but did not look inside it: p 81.  The difficulty here for the defendant is that there is some inconsistency between the two drawings, and it is not clear what is to be done with all the existing pipes.  There is nothing on drawing 0157 to indicate that any pipes are to run into pit 5/1, other than the two new pipes to be constructed under the contract running from pit 4/1. 
  1. [30]
    The issue is not without difficulty, but on balance I consider that the correct interpretation of the contract,[39] and particularly the tender bundle, is that the drawings of pit 5/1 in drawing 0157 were not a comprehensive drawing of all pipe connections required for that pit; rather their function was to show the new pit generally, and how the new services, specifically the two new pipes, were to run into the pit.[40]  No attempt has been made on that drawing to show what was happening to any other existing services, notwithstanding the presence of a number of existing services on drawing 0150.  Further, the one existing pipe which was shown, the drain from the pit, was shown without any detail.  I consider the more reasonable inference is that, as indicated by the general notes and the request for tender, it was a matter for the contractor to identify the precise location of the storm water drains running into the existing pit, and make provision for them.  Accordingly, the location and cutting of existing pipes was work required under the contract, and did not give rise to a claim for any “variation”; that is to say, this was not a situation where the defendant required the plaintiff to do work not covered by the contract.  The claim for Variation 2 fails for this reason also.
  1. [31]
    In relation to quantum, the claims are similar to those for Variation 1 and essentially suffer from the same deficiencies, so the analysis can be much shorter.[41]  The specific claim for the pipe cutter was $200 for his work, plus GST, as is the case with all the other amounts.  On this day, there were the same costs for delay as in Variation 1, and again sometimes 3 hours were claimed and sometimes 0.6 of a day or some other period; I allow 3 hours or 0.4 of a day for the delay.  There was a second excavator which had a rock breaker, for which a total of $150 per hour was charged, three labourers and otherwise the same costs as in Variation 1.  There was a claim for dump fees, but again only clean fill was charged for, and there would have been clean fill anyway, so it is not shown that this charge has been inflated.  For specific costs of Variation 2, I allow $1,733.28.  With the 25 per cent loading for administration and profits, that comes to $2,166.60, plus GST.

Variation 3

  1. [32]
    This variation in fact covered the cost of providing shotcreting to the sides of the excavation for drainage pit 5/1; it also has nothing to do with the state of the bitumen, and is also unsupported by the pleadings. The plaintiff’s case for this variation was that the shotcreting had become necessary because of all the extra pipes leading into the existing drainage pit, each of which had been, in accordance with the usual practice, surrounded by a quantity of sand or gravel. Hence when digging the pit the walls were much less stable than was usually the case, with the result that shotcreting was necessary in order to stabilise the walls, which would not have been necessary had the extra pipes not been there: p 35. The claim therefore is, in substance, similar to the claim in Variation 2, in that it is based on the proposition that the defendant has to pay all costs associated with the presence of existing pipes because there were no existing pipes shown on the drawing for pit 5/1 in plan 0157. For the reasons I have given in relation to Variation 2, I reject that argument, and that means the claim in Variation 3 also fails.[42]
  1. [33]
    In regard to quantum, on a precautionary basis, again there are the usual discrepancies, including in this case a number of documents exhibited to the affidavit as documents supporting Variation 3 which are not reflected in the schedule giving particulars of Variation 3.[43]  It appears from the day book that, apart from pumping some water out of the pit and cleaning it up, nothing was done on this day except the shotcreting, so effectively one day’s work was lost in this way.  The actual cost of the shotcreting was $1,800 charged by the shotcreting contractors, plus the cost of concrete which was $691.23 and the cost of reinforcing which is difficult to identify from the material available but I would allow the sum of $240 as claimed, in all cases plus GST.  There seem to have been three labourers plus Mr Wilson working that day, and his daughter, but I think the cost of her should be included in the administration loading, and it seems they only worked for 6 hours.   I would allow a full day for the steel plates, the toilet and the fencing.  Accordingly, specific costs come to $4,180.83,  which with the 25 per cent loading becomes $5,226.04 plus GST.

Variation 16

  1. [34]
    This variation does relate to bitumen, to cutting the bitumen in connection with the excavation between pit 5/1 and pit 4/1, where the plaintiff was to lay two 1500 mm concrete pipes. Apart from the fact that this covers a separate excavation and hence a different area of concrete cutting, the analysis is the same as for Variation 1, and for the same reasons this claim also fails.
  1. [35]
    In relation to quantum,[44] the actual concrete cutting was done by a subcontractor who charged $650 plus GST.  That amount is recoverable, by analogy with the reasons in relation to Variation 1.  It is not obvious why the claim is more than twice this amount.  There is also a claim for a quantity of 20 mm gravel, the need for which is not apparent to me and was not substantiated by evidence, and is disallowed, as it was by the defendant’s quantity surveyor.  There were also claims for hire of two crane trucks; apparently this was the cost of bringing something to the site which was capable of removing the steel plates from the work site at the beginning of the day, and putting them back at the end of the day.  It seems to me that these costs would have been necessary anyway even if the bitumen could have been lifted without cutting, and I do not allow them.  The other costs claimed are for 0.3 of a day for renting the fence and renting the toilet and, consistently with my reasons in relation to Variation 1, I would allow these amounts, for 0.3 of a day.  It strikes me as a little odd that there are no claims for labour, for excavating the extra asphalt and for the extra cost of tipping it under this variation but the plaintiff is confined by its pleadings which incorporates one of the schedules, and the evidence does not quantify any such amounts.  Accordingly the specific costs in relation to Variation 16 come to $684.68, which with the 25 per cent loading for administration and profit comes to $855.85 plus GST.

Variations 4, 5, 6 and 7

  1. [36]
    These were referred to in the Statement of Claim as the “soft ground variations.” Evidently, when the hole was excavated for the construction of drainage pit 5/1, the material at the base of the hole was regarded as unsuitable as a foundation for the construction of the concrete drainage pit. It is agreed by the defendant that the contract was varied to include additional work with respect to insufficient load-bearing capacity under this pit.[45]  According to the defence, it was agreed that gravel would be placed on the ground as a temporary solution, and on 25 September it was agreed that there would be a further 500 mm excavated in the hole, to be filled with compacted crushed rock, except for at least 100 mm of road base on top of the compacted rock.[46]  This was accepted by the plaintiff in the reply para 7(a), although it was alleged that there were further agreements in the month of October. 
  1. [37]
    The issues, therefore, in relation to these variations are whether all of the work claimed by the plaintiff was within the scope of the variation, and whether the plaintiff’s claim reflected reasonable remuneration for the work done. I should mention that the contemporaneous documentation in relation to these claims refers to the excavation of “marine mud”. Evidently, the parties at the time thought that this was the soft material which had to be excavated further to provide a proper foundation for the drainage pit.[47]  By the time of the trial, the plaintiff asserted that this material was not marine mud, but just soft soil.  Indeed, the plaintiff asserted that this was material which was washed into the pit as a result of the inflow of water into the pit, for which the plaintiff held the defendant responsible.[48] 
  1. [38]
    The defendant’s director said that the problem was soft ground,[49] but agreed that after an inspection by the engineer and the builder, work was suspended for three days, and a modified design was prepared by the engineer which was sent to the plaintiff, and in a conversation the plaintiff was asked to do the work and agreed to do so.[50]  Mr De Luca agreed that the work was additional to the contract price “as was the time delay caused.”[51]  I should say I interpret this as a statement that the work was in fact suspended for three days, not that, as soon as the problem arose, the plaintiff was told not to do any work for three days.  In fact, it is apparent that some work was required as a temporary measure, placing gravel at the bottom of the excavation, while the permanent solution was worked out by the engineer. 
  1. [39]
    The sequence of events is revealed in the plaintiff’s day book.[52]  The day sheet for 21 September indicates that excavation at the base of pit 5/1 proceeded, acid sulphate soil was encountered and had to be removed for a depth of approximately 400 mm.  Evidently, this was the detection of the problem which led to the site meeting, but that occurred the following day, 22 September, as shown by the day sheet for that day.  The delays on 21 September were said to be:

“Half the day lost due water – tidal and other delays on project due to marine mud and acid sulphate soil.”

Variation 4

  1. [40]
    Variation 4 is said to relate to 21 September 2015. The instruction to cease work following the site meeting and the instruction to do additional work by way of ground preparation were responsive to what was found this day, rather than anything which caused either delay or additional work on this occasion. Further, the temporary solution, of putting gravel at the base of the pit, could not have been done on this day as the instruction to do it was said to have arisen out of the site meeting on the following day. The additional work done on this day was an additional 400 mm excavation, which the plaintiff must have done on its own initiative, but which was consistent with the additional work later requested, and the defendant, in response to the variation claim for this day, accepted $2,479.26.[53]  : Exhibit 5 p 21.  None of this was allowed for the supply and placing of gravel, which in fact was done the following day, but otherwise it appears that this claim was accepted as claimed, even to the point of allowing half a day for the steel plants, toilet and fence, which seems reasonable, although the rates for these were adjusted.  Applying the rates for them I have adopted, therefore, of $115.20 per day, I would allow $57.60, which increases the otherwise accepted amount to $2,285.09, which with the loading I would allow comes to $2,853.36, plus GST. 

Variation 5

  1. [41]
    Variation 5 related to 22 September, when there was the site meeting, and when according to the claim, the plaintiff supplied and placed 20 mm aggregate, and also a quantity of no-fines concrete in the pit. Mr Wilson said that after putting the gravel in the pit, they spread some no-fines concrete over the floor, and used it to cover the walls as far as they could to prevent mud from being washed into the pit and hence down the drains, to avoid environmental problems: p 36.
  1. [42]
    On the face of it, the plaintiff’s use of the no-fines concrete was its own idea. Whether or not it was a good idea in the circumstances, if the plaintiff used no-fines concrete in such a situation upon its own initiative there is, I think, no clear basis on which it can expect the defendant to pay for this, as there was no evidence that the defendant instructed or requested the use of the no-fines concrete. However, there was no particular issue made about this during the trial, and the defendant’s quantity surveyor allowed for the cost of supplying and placing the concrete, except that he only allowed 1m of concrete rather than 1.6m.[54]  The reason for this deduction is not apparent, since the supplier’s invoice shows that 1.6m was supplied, at a cost excluding GST of $370.40, which has been allowed by the quantity surveyor.[55]  The amount claimed by the plaintiff for this item, $407.44, is incorrect, since that is the amount including GST, though it is described as the “value complete excl GST,” which throws out the rest of the plaintiff’s calculations.[56] 
  1. [43]
    For the supply of gravel, the plaintiff claimed $360 for five cubic metres, and the defendant’s quantity surveyor has allowed $325 for that volume. The figure of $360 is recorded in the plaintiff’s day sheet, and there is a docket from the supplier that is difficult to read, though it indicates $650 was paid for drainage gravel and $69 for something else, including GST.[57]  Evidently, 10 cubic metres was in fact supplied, but the $69 may be a delivery fee; 5m is noted on the docket as being delivered, and $69 was allowed on this basis by the quantity surveyor.   I think that essentially the figure of $360 was arrived at by roughly halving the invoice, which would be correct if the $69 was for delivering all of it, but the real difficulty with this item is that it is inclusive of GST; the GST exclusive amount is $327.27, which I allow. 
  1. [44]
    The defendant’s response to the labour claim of 9 hours each for Mr Wilson and three others was to accept it as claimed except that the time was reduced to 8.5 hours. The defendant’s quantity surveyor would have allowed 9 hours.[58]  In the circumstances, I will allow the labour claims as claimed. 
  1. [45]
    There was also a tip fee of $150 claimed which was allowed by the defendant’s quantity surveyor at $100. That is the figure stated in the day sheet,[59] although a schedule of tip fees annexed to Ms Russell’s affidavit shows $150 for that day.[60]   I assume the schedule was based on the information on the day sheets, and there was an error in transcription, and allow $100 for the tip fee.
  1. [46]
    The plaintiff also claimed a 10m tip truck for 7.5 hours and an eight tonne excavator for the same period, but the dockets in Ms Russell’s affidavit show that the plaintiff was charged for $375 for 5 hours for the tip truck and $990 for 5 hours for the excavator. These figures do not match either the amounts claimed by the plaintiff or the amounts allowed by the defendant’s quantity surveyor, though the latter appears to have accepted what I regard as the correct hourly rates, but fixed different periods, for reasons not explained. In my opinion it is appropriate to allow the specific costs as shown by the invoices.
  1. [47]
    There was also a further claim for labour for one supervisor and three skilled labourers, each for 7.5 hours, which is not supported by the day book, and which in the case of the supervisor, clearly, and in the case of the others, apparently, is duplicated by the claims for labour earlier. This aspect of the claim is not allowed. The remaining part of the claim was the usual daily claim for the fence, the toilet and the steel plates. This I consider is part of the costs of the delay arising from the suspension of work on this day, and I allow these costs at the usual rate. It follows that the specific costs for Variation 5 are allowed at $5,553.87, which with the loading of 25 per cent produces a valuation of the variation of $6,942.34 plus GST.

Variations 6, 7

  1. [48]
    Variation 6 and Variation 7 relating to 23 and 24 September 2015 are very similar, and can be dealt with together. The day sheets for both days record “no work due to stand down” and each day records 7 hours for the same four people, including Mr Wilson. There may have been an argument for keeping workers available in case some instruction to do further work was received, but somewhat curiously, Variation 6 claimed for Mr Wilson and three labourers, and Ms Russell, whereas Variation 7 claimed only for Mr Wilson and Ms Russell, though the day book shows two labourers were there for both days.[61]  I am treating Ms Russell’s time as part of the administration cost, rather than as something that should be claimed for separately, but I think it is reasonable for Mr Wilson to have been available on site, and his time has been allowed by the defendant’s quantity surveyor.[62]  The claim for the labourers under Variation 6 was not accepted by the defendant, and in the absence of any evidence that the plaintiff was committed to using these labourers on these days anyway, I will not allow it. 
  1. [49]
    The other aspect of the claim was the usual claim for fencing, toilet and steel plates, and for the reasons given earlier I would allow these as well. The specific costs for Variations 6 and 7 that I allow are therefore $987.20 each, which with the 25 per cent loading comes to $1,234, in each case plus GST.

Variations 8-15

  1. [50]
    These variations are referred to in the statement of claim as “revised plans ground chamber pit 5/1 variations”. The pleading then alleges a case based on the proposition that additional work was required in order to provide a proper foundation for the drainage pit which was then to be built above it, which as discussed above was agreed and for which the defendant accepts reasonable remuneration must be paid. However, it seems to me that most of these variations in fact relate to the effects of water penetration into the excavation. On 25 September, the date of Variation 8, the instructions for the additional works required by the engineer were given to the plaintiff, and it seems that that work was then done.[63]  The work appears to have involved the removal of the temporary material which had been put in the pit, and more excavation, then placing a quantity of broken rock or concrete, described as spalls, which was compacted and, it seems, had some concrete placed above it. 
  1. [51]
    The amount paid for the rock, $433.20, was not in issue but it appears from the invoice from the concrete supplier that the cost of the concrete excluding GST came to $547.20, not $554.51 as claimed, so I allow the former amount, which was not contentious.[64]  There was also an invoice for an excavator for 8.5 hours at a cost of $115 per hour plus GST[65] which came to $977.50 plus GST, which I allow, and a float to transport the excavator for which $400 plus GST was claimed and has been omitted from the quantity surveyor’s schedule, which is appropriate and I allow it.  There were two charges for a tip truck, one for 3 hours at $240 plus GST and one for 6.5 hours at $520 plus GST, which strikes me as reasonable although only 5 hours was allowed by the defendant’s quantity surveyor, for reasons that are not clear to me.  There were also fees for tipping the material excavated, four loads at $325, a total of $1,300.  This is shown in the day sheet, and the list of tip fees paid, and it seems that this amount was actually paid, so it is not clear why the defendant has only allowed for two loads.  I allow this, in the sum of $1,182 plus GST. 
  1. [52]
    Apart from this, there were claims for Mr Wilson’s time as supervisor and the three labourers, which seems right, although the rate claimed for the labourers is the “charge out” rate of the plaintiff rather than what the plaintiff actually paid.[66]  I allow 7.5 hours at $109 for Mr Wilson and three lots of 7.5 hours at $37.80 for the labourers.  The remaining claims relate to the ongoing hire costs for the day of the two steel plates, the toilet and the fencing.  It appears that this day was occupied in dealing with the admitted variation, so this represents part of the costs of the delay associated with the need to do this extra work, and I allow one day for these three things at the rates I have found.  Accordingly, the specific costs for Variation 8 come to $6,083.10, which with the loading comes to $7,603.88 plus GST.
  1. [53]
    Variation 9 is for the following day. According to the day sheet, there was work done concreting the void between the shotcreting and the base, after delays of 3 hours due to “tidal water”. It is not apparent to me that any work that day was attributable to the agreed variation in the works; to the extent that there were delays that day, they were associated with the penetration of water to the excavation for drainage pit 5/1.[67]  This raises an issue which occupied a lot of attention during the trial.  Despite what was written in the day sheet, which may well have reflected the view of things held at the time,[68] the plaintiff’s case at trial was that the water was not tidal water, but was water which had come into the pit for which the defendant was responsible in some way.[69] 

Water in the excavations

  1. [54]
    Some specific sources of water were referred to in the material; for instance it was submitted that water from the construction site was pumped out of a drainage sump in the basement to an outlet at the curb on the western side of Walsh Street, from where it flowed into a gully pit and then by a pipe into the drainage pit which pit 5/1 was to replace, and which was one of the pipes which ran into the excavation.[70]  Certainly there was some water which was discharged from the construction site in this way, and would have flowed into the hole.  The plaintiff put in evidence photographs showing that happening.[71]  The defendant conceded that this did occur, but said that it was not a significant problem, on the basis that after the defendant took over the work it did not find it a significant problem, and later did not even need to pump out water from that source coming into the excavation.[72] 
  1. [55]
    The defendant’s evidence was that, at the time of the plaintiff’s work, storm water drainage for the building itself operated on the basis that it was collected into a sump in the basement, from where it was pumped by an automatic pump to this outlet. There was a surprising amount of variation in the evidence about the operation of this automatic pump,[73] but apparently it normally operated automatically, when the water reached a particular level.  Importantly, however, this pump was under the control of the head contractor, not the defendant.[74]  If so, and this evidence was not contradicted, the defendant was not responsible for any water in the excavation as a result, at least unless the defendant had deliberately switched on the pump on a particular occasion, something never proved.  The plaintiff’s daughter said that on about 12 October she spoke to the first defendant’s site foreman about this water and he said he would switch it off and did so, and there was no water flowing into the excavation for the pipeline which was then underway for the next two days, after which the water flow started again.[75] 
  1. [56]
    The plaintiff’s day book records on 12 October cleaning up from tidal water over the weekend, and at approximately 2.30pm “flooding into pit from other building, delay approximately 15 to 20 minutes from water then 30 minute clean up”: p 434. On 13 October tidal pumping and clean up from the night before was noted, and at 9.30am “major flooding coming from 825 pipe upstream Manning Street, all staff delayed 2 hours”: p 435. On 14 October there was no reference to any problems with water in the excavation, but the sheet for 15 October records delay due to tidal water “plus runoff from surrounding buildings”: p 439. It does look as though there was some water coming into the excavation anyway at this time, but perhaps not from the construction site outlet.
  1. [57]
    It is clear, from the explanation I was given of the temporary stormwater drainage arrangements on the construction site, that storm water on that site was supposed to flow into a sump which when it was pumped out would be discharged onto the side of Walsh Street and in that way flow into the plaintiff’s works. This was certainly a source of water problems for it, but on the plaintiff’s evidence it had problems even if this pump was not operating. Mr De Luca claimed that the building site shed stormwater, and none drained to the basement: p 2-105. If this was true it would have put this water onto the adjacent streets, which drained to the plaintiff’s excavation and pit 5/1, but he spoke of a podium level, which suggests some surface to drain, and photos of the building show balconies on at least the south side, which would have drained to the temporary stormwater system. The photos show that water was pumped out from time to time, so some water must have found its way in, and I do not accept this evidence of Mr De Luca.
  1. [58]
    This problem was really a by-product of the fact that the plaintiff was working within a drainage system which was “live”, that is to say, which could be expected to have drainage flowing through it from time to time.[76]  This would arise most acutely in the event of rain, but even apart from that there are various other events which can produce water which runs into a storm water drain, and if any of them operated upstream from pit 5/1, the result would have been water flowing into the excavation.[77]  Apart from the pipes which were known about, there were apparently other old pipes located during the excavation, and they could also be carrying drainage.  Another possibility of course is that water was coming from the river, either up the storm water drain pipes, or through sand or gravel in which the pipes were laid, or through other artificial or even natural aquifers.[78] 
  1. [59]
    If the evidence of the defendant’s witnesses, that the excavation of the building site had water running into it during periods corresponding to high tide,[79] was correct, the water must have been coming from some source extraneous to the storm water drainage system, as the building footprint on its face did not impact on that system.[80]  There was some evidence suggesting that there were unidentified drains in the area, and it is possible that old drains connected into the storm water drainage system which ran into the area of the excavation could have been a source of water, though it strikes me as a little surprising that tidal water would simply drain away again by that means as the tide fell.  Another possibility is that water from the storm water drainage system escaped through leaks in that system into the surrounding area, and then travelled through the more porous parts of the ground into the excavation, though again it is a little surprising that the water would drain away again readily by that process as the tide fell.  The other possibility is that water flowed to this area to and from the river through natural aquifers so that, in effect, the water table in this area was also tidal.[81]
  1. [60]
    There is little independent or expert evidence in relation to these matters. The defendant called an expert civil engineer, Mr Mander-Jones, who thought the water was river water at high tide, although his evidence was mainly directed to the question of what would have been obvious to a contractor from the material provided to the plaintiff by the defendant, and from material readily available to the public: Exhibit 11.[82]  Mr Hargreaves excluded water table water as it was seen flowing out of the pipes (Exhibit 4), which would exclude that water, but there is also a video of water apparently flowing out of the ground, like a small spring.  Mr Hargreaves said that the excavations were into clay, which was not porous, but water can flow at a clay/rock interface, or through sand (or I suppose gravel) placed around pipes: p 3-34.  He did not see water flowing out of pipes, or seeping into the excavation, when he was there: p 3-35, 43.  In his opinion, it was not tidal water, or water seeping through the ground: p 3-44.  He seems however to have relied heavily on what he was told about the water by Mr Wilson. 
  1. [61]
    There was no evidence of any testing of the water even to determine whether it was river water,[83] and no evidence of any soil testing which had occurred on the construction site or in its vicinity,[84] which may well have thrown some light on the water table in the area.  The fact that the building was to be constructed with waterproof walls and floor around the basement suggests that water was expected to be a problem at the site, but in the absence of guidance from the appropriate experts I am unwilling to draw any specific inference from this about the situation of the site. 
  1. [62]
    Apart from the question of water coming from the river or the water table, given that this work was being undertaken in an existing live stormwater drainage system, it would be unsurprising if that system produced some water flows from time to time, mainly from upstream. As well, water flowing into the system further down, at a time when it was difficult for water to drain because of a high tide in the river, might easily bank up through the pipes as far as the excavation for pit 5/1. Mr Wilson said at one time that there was no heavy rain during the relevant period;[85] Mr De Luca referred to one occasion during the relevant period when he said there was heavy rain in the vicinity.  It would be possible for there to be some runoff even from relatively light rain, and of course water can get into the drainage system in other ways.
  1. [63]
    Mr Wilson asserted that water could not have come up the drainpipes from the river at high tide because the outlets of stormwater drains to the river were fitted with a form of non-return valve described as a duckbill valve.[86]  These were said to have been installed after the 2011 floods, to prevent flood water from the river coming up the stormwater drains and flooding areas further away from the river.  Apart from the fact that they had been selected, presumably rather than some other form of non-return valve, by the Brisbane City Council to provide flood mitigation in this way, I know little about their practical efficiency.  Mr Wilson suggested that they would not have been installed by the Council in such circumstances unless they were effective and reliable: p 37.  Mr Mander-Jones doubted their effectiveness, claiming that debris could get stuck in them and in that way allow the water to flow back into the pipes anyway: p 4-23.  He was not able to say that they would probably have failed, however, or put a figure on the probability of failure: p 4-24, 25.  He suggested that water could bypass the valves by seeping through the ground and leaking into the drains behind them, or flow through bedding sand, or natural aquifers: p 4-25-27.   
  1. [64]
    Mr Murray’s observations of water levels at high tide in the river opposite the outlet pipe and in pit 5/1 were that the water was slightly higher in the latter, and it is not obvious to me how water flowing from the river would reach a greater height than the water in the river if that was the source of the water in the pit. On the other hand, I would expect that there would be some head required before a duckbill valve would release water into the river, so that, when river water was over the valve, the depth of water in the drain would have to be higher than the depth of water in the river for water to flow out of the drain through the valve. Water would not flow out of the drainage system, unless the level of water in that system was greater than the water level in the river. In this scenario, the water seen by Mr Murray could have been simply water in the drainage system which was unable to escape into the river because of the height of the tide. Mr Murray’s observations are therefore not inconsistent with the duckbill valves working at the river outlets; indeed the existence of some additional head at pit 5/1 suggests to me that the valves were working.
  1. [65]
    It does not however necessarily follow that no water will come from the river just because the valves are there and they are working. Water could percolate through gravel laid in the trenches around drainpipes, or through natural aquifers, and there may be other obsolete drains which still provide a pathway between the river and at least the general vicinity of Walsh Street. The point is that the presence of the duckbill valves does not guarantee that tidal water will not come into the defendant’s excavation. It was necessary for only one of the two to fail to let in tidal water. The regularity of water in the excavation for pit 5/1, and later the pit, and the fact that when pumped out water did not return at once, support the theory that at high tide river water was finding its way to this point. I think Mr Wilson’s confidence in these valves was misplaced.
  1. [66]
    Mr Wilson in his affidavit claimed that water flowing into pit 5/1 did not follow the tide times of the river but rather coincided with activities of the first defendant.[87]  The activities identified in the affidavit were water being pumped out of the basement drainage areas with an automatic switch, which did discharge into the curb and flow into a gully pit and thence into the plaintiff’s works,[88] and water being pumped out of the box culvert which was said to have been pumped over the road by the first defendant.[89]  This could have led to water flowing indirectly into the excavation via the drainage system.  He claimed that the water from wet testing was discharged into the box culvert,[90] but what was being wet tested in the building was the piping system which would ultimately run into the sewerage system, such as drains from sinks and hand basins, so the proposition that the water used for wet testing was discharged into the sewerage system seems plausible enough.  I reject the plaintiff’s case base on wet testing. 
  1. [67]
    There was a 300 mm diameter pipe which ran into an area just beyond the eastern end of the constructed box culvert, which was ultimately to be the discharge point for the storm water drainage system within the development, but the defendant’s evidence was that at the time the plaintiff was working on the site this pipe was not connected to anything, and the other end was sealed off.[91]  The plaintiff put in evidence a photograph of the end of the pipe showing what appeared to be some sediment on the inside surface, and wetness below the point where the pipe penetrated the concrete wall, suggesting that at some point at least the pipe had been at least half full of water that was not entirely clean, and that some water had been discharged from it not that long before.[92] 
  1. [68]
    The defendant’s witness said that the pipe could have received the sediment stain when it was lying on the ground on-site before it was installed (p 3-102), which I suppose is possible, and it also occurs to me that from the photograph if the box culvert came to be half full of water, as Mr Wilson claimed, that pipe would be under the water level and water from the box culvert could have been responsible for the sediment within it.[93]  It was also suggested that the wetness in the concrete under the pipe in the photograph could have been caused by water penetrating between the pipe and the concrete wall: p 3-101.  It seems to me however that the photograph actually shows a small amount of water running from the lip of the pipe and dropping into the puddle of water in the bottom of the excavation, so at the time the photograph was taken there was actually some water flowing out of that pipe, although admittedly not much.  Nevertheless, the defendant’s evidence does not account for the presence of even that very low flow.[94]
  1. [69]
    Mr Wilson said that water was discharged to the box culvert from the Humes jellyfish through the 300 mm pipe shown in the photograph.[95]  The defendant’s evidence demonstrates that a Humes jellyfish interceptor unit was delivered to the site in early April 2016,[96] and so was not there at the time of the plaintiff’s work, and could not have been a source of water to the box culvert.  Mr De Luca to his last affidavit exhibited a photograph taken in early March 2016, showing the hole where the interceptor was to be placed.[97]   That photo shows an uncapped pipe in the excavation not that far above its base, but it appears to be a concrete pipe rather than the PVC pipe shown running into the box culvert.  Reference to drawing TOO3[98] shows that the pipe in the culvert is not the other end of the pipe ultimately connected to the interceptor, since there is a pipe junction and a reflux valve between the two positions.  If the other end of the pipe flowing to the box culvert was not capped off, it may have been possible for water to flow from the excavation which ultimately housed the interceptor through the pipes into the box culvert. 
  1. [70]
    The pipe from the box culvert was supposed to have been capped before the reflux valve,[99] but it would appear that that had not occurred.  It is not obvious however that this could have been a source of any great volume of water flowing into the plaintiff’s works, which were some metres from the box culvert excavation, except indirectly, from water pumped out into Manning Street.  It is also not clear to what extent anything done or not done by the defendant was responsible for water coming from such a source.[100]  I am prepared to assume, in the absence of evidence to the contrary from the defendant, that it was responsible for all of the storm water drainage works apart from those subcontracted to the plaintiff, but it does not follow that the defendant is responsible for any water that comes into the plaintiff’s excavation, or even just for water that comes into the plaintiff’s excavation from the construction site. 
  1. [71]
    The plaintiff submitted a large number of photographs, some of which show water in the base of various excavations, but none of these are so deep as to be obviously inconsistent with water which could have come to that depth as a result of water equivalent to high tide level flowing through the pipes, or otherwise to the excavation site.[101]  There are a couple of photographs which show water actually running out of a pipe, one of which appears to be the pipe running from the gully pit on the west side of Walsh Street, to which water would flow if discharged by the temporary system at the curb near the pit.[102]  However, as I have indicated, there are many potential sources of water in this excavation.  Ultimately it is not necessary for me to make any conclusive finding as to the source of the water in the excavation; the question is whether the water came to be in the excavation because of some act or omission by the defendant, and if so, whether that was an actionable wrong as against the plaintiff. 
  1. [72]
    Although there would have undoubtedly been some water pumped from the construction site which found its way into the excavation, possibly quite a lot, it is generally not possible to work out from the evidence to what extent any particular delay was caused to the plaintiff specifically by that water, as distinct from water from any other source. Overall, it does appear that there was water from other sources as well, again, possibly quite a lot.
  1. [73]
    In the case of water from the construction site, I accept that the pumps were not under the control of the defendant, and accordingly the defendant is not liable for the presence of that water flowing into the plaintiff’s excavation. Overall therefore I am not persuaded that the defendant is responsible for water being in the excavation, and thereby interfering with the plaintiff’s works. I have no difficulty in accepting that the water flowing to the plaintiff’s works would have been very disruptive to the plaintiff’s work, but I am not persuaded that the defendant is liable for this, either as providing a basis for an entitlement to a variation under the contract, or for damages in contract or in tort. It follows that all of the “variation” claims based on the presence of water in the excavation must fail, starting with Variation 9.
  1. [74]
    As usual I will say something about quantum on a precautionary basis.[103]  The variation claim[104] includes jackhammering out shotcrete shoring to accommodate new base works, presumably some of the shotcrete installed under the earlier variation.  I agree with the defendant’s quantity surveyor that this is not related to water penetrating the excavation.  It might be said to be related to the “variation” for installing the shotcreting in the first place, and I have not allowed that variation.  The plaintiff claimed for 6 hours of Mr Wilson’s time and for three labourers, and I will allow 5.5 hours, the amount shown in the day book,[105] and 5 hours for the two labourers referred to in the day book at $37.80 per hour, $378.  As usual I will not allow any specific charge for Ms Russell’s time.  There was also a charge for the excavator for 5 hours for removing and replacing the steel plates, $575[106] and the plaintiff also hired a pump at a cost of $402 plus GST.[107]  The plaintiff also claimed the usual costs for steel plates, fencing and toilet, which for the day I allow as usual at $115.20.  Accordingly, the specific costs of Variation 9 come to $2,069.70, which with the loading comes to $2,587.13, plus GST. 

Variation 10

  1. [75]
    Variation 10 is essentially claimed on the same basis as Variation 9, but for Monday 28 September. The day book refers to what occurred that day as “pumping tidal water and clean up. Flooding from Devine site several times. Delay all work.”[108]  Included in the photographs was one showing water coming from the temporary outlet pipe into the curb on the west side of Walsh Street which was apparently taken that day,[109] which suggest that some of the water flowing into the excavation was coming from the construction site, but for reasons given earlier the defendant is not liable for this.  This claim also fails.  The plaintiff claimed for Mr Wilson’s time for 6 hours and 6 hours for four labourers; the day book indicates Mr Wilson and two labourers each for 10.5 hours, though only 6 hours were claimed; that is consistent with the reference in the day book to “60 per cent variation”.  I would allow 6 hours for Mr Wilson, $654, and two labourers for 6 hours at $37.80 per hour, $453.60.  The excavator was hired 13 hours, $1035, but only 6 hours was claimed, and I allow $690.  I also allow 60 per cent of the usual daily rate for the plates, toilet and fence, $69.12.  The specific costs for Variation 10 come to $1,866.72, which with the loading comes to $2,333.40, plus GST. 

Variation 11

  1. [76]
    According to the day book there was time spent pumping out “tidal” water from 7.00am to 8.30am, and at 2.45pm there were “storms – major – Devine evacuated building – severe pumping.”[110]  Presumably this produced storm water run-off which would have flooded the excavation because the system was live.  A photograph apparently taken on this day shows a lot of water flowing through the partly built pit 5/1: Exhibit 1.  Another shows the general area, presumably in the aftermath of the storm.[111]  This claim also fails, for the same reasons. 
  1. [77]
    With regard to quantum, there were two lots of crane hire for that day, apparently once to remove the plates at the beginning of the day’s work and once to replace them at the end of the day’s work. In each case the plaintiff had claimed the charge inclusive of GST; the relevant amounts would be $465 and $480 in each case, plus GST, but it appears that ordinary work was done on the site between 8.30am and 2.30pm, when work stopped because of the storms. Potentially therefore only 25 per cent of the working day was lost, so I would only allow one quarter of the crane hire figures, a total of $236.25 plus GST. The schedule includes a figure for hire of a pump from Boral Concrete, but the day book suggests that in fact 2.2 cubic metres of concrete was purchased from Boral, and there is no invoice included in the supporting documents.[112]  Three hours was claimed for Mr Wilson’s time, but on the basis that only 2 hours was wasted I will allow 2 hours, $218.  There are only two labourers referred to in the day book, but there are dockets for three in the supporting documents and I allow 2 hours for each of three labourers at $37.80 per hour, $226.80.  I also allow one quarter of the daily rate for steel plates, fencing and toilets, $28.80.  Accordingly specific costs for Variation 11 come to $709.85, which with the loading comes to $887.31, plus GST. 

Variation 12

  1. [78]
    Variation 12 relates to 30 September 2015, and was said to cover three events on that day. The first was disruption to the works from storm water inflows between 8.00 and 9.00am and storm water from onsite construction activities from the previous day. The second event related to repair of the concrete base to pit 5/1 caused by uncontrolled storm water discharge from undisclosed leaking pipelines, and event three was repairing scouring of the new base occasioned by uncontrolled storm water discharge from undisclosed pipelines. The day book notes for this day “lots of floods/water problems/lots of delays.” There was apparently a complaint to the head contractor’s site manager[113] by Mr Wilson that day in relation to water coming from the construction site “float valve in basement”.  I suspect that what happened was that there was storm water from the storm the previous day still coming through the system, as was to be expected given that the system was “live”, though it was made worse by the fact that the temporary storm water system for the construction site had picked up a good deal of rain from the storm, and was also pumping that out onto the curb on the west side of Walsh Street, from where it could flow into the gully pit and hence into pit 5/1.  For the reasons I have given, the defendant is not responsible for any of this, and it follows that this variation also fails. 
  1. [79]
    With regard to quantum, a total of 8 hours of Mr Wilson’s time was claimed, and although the day book suggests that work went on a bit longer than that on this day there is no clear evidence that anything useful was done apart from dealing with the effects of water, so I would allow the 8 hours claimed of $872. There are then four labourers claimed for 8 hours and one for 7 hours, but the supporting documents show three labourers for 8 hours or more, and one for 3 hours, who was paid $129 plus GST: p 163. I would allow this amount and the other three labourers for 8 hours at $37.80 per hour, $907.20. There are two invoices for crane hire, $405 and $385, to remove and replace the steel plates, and the usual charges for steel plates, toilet and fencing for which I will allow one day, $115.20. This produces totals for specific costs for that day of $2,813.40, which with the loading comes to $3,516.75, plus GST.

Variation 13

  1. [80]
    Variation 13 was for 1 October, and again claimed for delay caused by stormwater inflows from the construction site. The day book indicated that there was a delay of all works for 1 hour from pumping tidal water, and for 2 hours for runoff from “associated pipelines”: p 426. That suggests about one third of the working day was lost for this reason; the day book seems to suggest that some useful work was done that day. Again, I am not persuaded that any of this was something for which the defendant was responsible, so this claim fails.
  1. [81]
    With regard to quantum, the plaintiff claimed only 2 hours for the supervisor and four labourers, and 20 per cent of the day for the plates, toilet and fencing, but still seems to have claimed the full cost of the crane hire to remove and replace the steel plates; if work was delayed for effectively one quarter of the day, then one quarter of the crane cost should be allowed. I would allow $218 for Mr Wilson, three labourers for 2 hours each at $37.80, $226.80, one quarter of the crane charges of $405 and $220, $156.25 and one quarter of the usual daily rate for plates, fencing and toilet, $28.80. Specific costs for Variation 13 therefore come to $629.85 which with the loading comes to $787.31.

Variation 14

  1. [82]
    This claim which was for 2 October 2015 related to three events on that day, each of which was described as “pumping uncontrolled discharge”, and said to relate to three times when the work was held up while water coming from the construction site had to be pumped out of the pit. According to the day book there were “three floods – one tidal – two from building – Devine and neighbouring properties”: p 427. There was some time spent pumping “tidal water” after the plates were taken off, and there were delays of (it appears) an hour at 8.45 am and 2 hours at 1.30 pm. This variation is covered by the same reasons as the variations dealt with earlier in relation to water, and fails for those reasons.
  1. [83]
    With regard to quantum, there were claims of 4 hours for Mr Wilson, in total $436, and 4 hours each for seven labourers. There are seven shown in the day book at p 427 but counting Ms Russell, and the supporting documents show two carpenters were provided at $55 per hour, though one of them was for only 3.5 hours, as well as four labourers at $37.80.[114]  In the circumstances I will allow 6 hours for carpenters’ time, $330, and 4 hours for four labourers at $37.80, $608.80.  There was also a claim for steel plates, fencing and toilet and I would allow for half a day, $57.60, and the crane hire charges to remove and replace the steel plates, $460 and $385,[115] of which I allow half, $422.50.  The specific charges for Variation 14 come to $1,850.90, which with the loading becomes $2,313.63, plus GST. 

Variation 15

  1. [84]
    There was then a gap until 6 October 2015 for Variation 15. Again, this was claimed as three separate events of pumping water out of the drainage pit, which by then was largely constructed.[116]  The day book recorded “three floods from 825 pipe western side, 4.5 hour delay for day all staff and clean-ups after each flood.”[117]  Presumably the pipe on the western side of pit 5/1 would have been the pipe running through from Manning Street, the one that ultimately would be replaced by the box culvert.  This suggests water coming from higher up the drainage system.  It may be that there was water being discharged into Manning Street from the construction site, which then found its way down the drain and hence into this pipe, but there was no evidence to link the defendant with any such discharge of water, and no basis for saying the defendant would be liable for it.  This claim also fails.
  1. [85]
    With regard to quantum, there was a total of 5 hours claimed for Mr Wilson, half the hours shown as work that day in the day book, $545.[118]  There are also 5 hours claimed for each of six labourers, but I can see only four other people (apart from Ms Russell) referred to in the day book: p 428,  and one of them only worked for a short time in the morning.  The supporting documents only refer to three labourers,[119] and I will allow 5 hours for three labourers at $37.80, $567.  The plant hire costs were $330 and $440[120], and I allow half the total, $385.  I also allow half the usual daily rate for plates, fencing and toilet, $57.60.  The specific costs of Variation 15 therefore come to $1,554.60, which with the loading is $1,943.25, plus GST.

Variation 18

  1. [86]
    This is referred to in the pleading as “Revised Bridging Layout Pit 5/1 Variation”, said to be revised plans for pit 5/1 undertaken at the request of Mr De Luca on behalf of the defendant.[121]  It appears that what happened on 8 October was that the plaintiff began to dig up the road and excavate beneath it for the first section of the twin 1500 mm pipeline being built north from drainage pit 5/1 to drainage pit 4/1.[122]  It was accepted on behalf of the defendant that at some point the plaintiff was instructed that the ground improvement works ordered to be carried out under drainage pit 5/1 were also to be carried out under the twin pipeline, though no price was agreed for this extra work.[123]  The effect of this was that the plaintiff, for each section of excavation, had to dig down an extra 500 mm, install and compact coarse rock at the base of the trench, cover it with a sheet to attempt to keep the next layer out of the coarse rock, and then put a layer of road base, or perhaps modified concrete, above this layer before laying the pipeline on top of that.  This increased the amount of excavation involved by deepening it, and required extra work to be performed. 
  1. [87]
    It appears that in practice this work was done one section of pipe at a time progressively north along Walsh Street while the plaintiff remained on the job. The day book shows lifting asphalt which had been cut the previous day, and “general earth works” for the pipeline: p 430. It appears that most but not all of the excavation work occurred on 8 October, and the following day the excavation was completed, the rock for the ground improvement works was placed and compacted, and there was some general tidying up around the site, including removing excess coarse rock since there was no room to store it on the site: pp 430, 431. It appears that three loads of spoil were taken away from the site on 8 October, and a further load on 9 October, when there were also said to be further delays due to water coming onto the site from the 375 pipe and the construction site.
  1. [88]
    The pleading in para 8(d) refers to Variation 18 as covering 8 and 9 October, and the Schedule refers to the day sheets for those two days. The matter is complicated by the fact that that Schedule contains no Variation 17, though a later affidavit of Mr Wilson exhibits as a separate document what is said to be a Schedule for Variation 17, said to relate to 8 October 2015.[124]  The whole thing is rather unsatisfactory, but what I propose to do is cover additional work done as a result of the variation on both 8 and 9 October under Variation 18, since this is consistent with the pleading.  I should say that I have found the plaintiff’s claims for this extra work somewhat difficult to follow, but I have found the assessment of them by Mr Ross[125] completely incomprehensible. 
  1. [89]
    There would have been an excavation of about 2 meters deep anyway, since the pipe was 1500 mm in diameter, and it was intended to be buried under the road, so the practical effect of digging an extra 500 mm was to increase the volume to be excavated by about 25 per cent. Hence, about 20 per cent of the volume ultimately excavated could be attributed to the variation. The excavation occupied about 7 hours on 8 October and a further 2 hours on 9 October, and there were three loads of spoil to dump on 8 October and one on 9 October: pp 430, 431. There was an excavator on site for 8 hours on 8 October and 7.5 hours on 9 October, but that included time spent replacing and compacting the rock and lowering sandbags into the pit, the latter something apparently needed anyway to do the contract work. Overall it appears that there was 10 hours of excavator time occupied with the excavation of which 20 per cent, 2 hours, comes to $230.
  1. [90]
    A total of four loads of spoil were dumped over the two days, though for some reason the tip fees for the load on 9 October seemed to be different from those on 8 October, possibly because of the presence of the asphalt on the former day. I will allow the tip fees for 9 October of $160,[126] which without including GST comes to $145.45.  There was also the purchase of the rock on that day, for which a figure of $354.85 is included in the schedule, though the source of this is not clear; the defendant was prepared to allow $235.60.  The quantity on the invoice at p 260 seems to be about half the quantity on the invoice at p 97 for the earlier ground improvement works, so it seems a little curious that the amount charged this time is greater.  As well, the proper tax invoice available for Variation 8 (p 97) is not available for this variation, thus I am sceptical of the reliability of the price.  The defendant would allow $235.60 for this though that figure appears to be based on 6.2 cubic meters, which is not how I read the delivery docket.  Nevertheless, essentially for want of better evidence, I will accept the defendant’s figure of $235.60. 
  1. [91]
    There was also 3 hours for use of the excavator for placing and compacting the rock in the excavation, $345. There was also said to be two tip trucks hired.[127]  The hire of two trucks is referred to on both 8 and 9 October in the day book, but no amount is attributed to it there and there is no docket or supporting document.  The day sheet for 8 October suggests there were two tip trucks although I have not seen an invoice for this.[128]  This claim is complicated by the fact that the schedule includes apparently the whole cost of two tip trucks on 8 October and the one truck on 9 October when most of the spoil would have been dug out and hauled away anyway to do the contract works.  This was a large hole, so it is plausible that two trucks would have been required on 8 October.  20 per cent of the total amount claimed in the schedule for tip trucks is $387, not much more than the $300 the defendant would allow for extra tip truck hire, so I will allow $387 for this. 
  1. [92]
    There was also a charge for the float to transport a 13 tonne excavator on 8 October, but that would have been needed anyway. The schedule also claims for a second excavator, but I cannot see any reference to that in the day book, or supporting documents.[129]  It is not clear to me that there was more than one excavator involved.  On 9 October it appears that some surplus rock had to be hauled away from the site because there was no storage on site, and there was a hire charge recorded in the day book of $180 for a smaller tip truck to remove this rock: p 432.  Although there was no invoice for that sum, such a charge seems plausible and I will allow it. 
  1. [93]
    With regard to labour costs, my impression is that most if not all of the time on 8 October was spent doing work necessary anyway for the contract, although it may be that some of the excavation of the extra depth took place that day. There was more excavation on 9 October and the rock was placed and compacted on that day, but there was some other work going on that day as well which would have been more labour intensive and which was required anyway for the contract: p 431. Doing the best I can I allow 5 hours of Mr Wilson’s time on 9 October, $545, and 5 hours that day for one labourer, $189. The day book has been marked in a way which suggests that half the time for two labourers on 9 October was attributable to the “variation”, but the description of the work they were doing does not support an allowance to that extent specifically for the ground improvement works: p 431.
  1. [94]
    I note that some of the matters complained of that day in the schedule, and in a heading page for the supporting documents for Variation 18 (p 255), speak about costs associated with finishing work over the joins between unidentified pipes and the walls of pit 5/1, which for reasons given earlier I do not find to be a valid claim, rather than work required under the contract. This seems to be part of the finishing work in drainage pit 5/1. I will also allow half the usual daily rate for steel places, fencing and toilet, $57.60. The specific costs therefore for Variation 18 come to $2,314.65, which with the loading becomes $2,893.31, plus GST.

Variation 19

  1. [95]
    Variation 19 which covers the next working day, 12 October 2015, is justified by reference to seven specific events.[130]  Event 1, pumping storm and site water and inflow from upstream, is in the same category as other claims in respect of water and is rejected for reasons given earlier.  Event 2 was the time spent removing the temporary pipelines, that is, the pipes connecting the old drain pipes through into new works, something that, in my opinion, was work required to be done under the contract because the plaintiff was working in a live system and it was work that was necessary to accommodate that.  No extra claim can be made for doing so.  This also covers Event 6 which is reconnecting those pipes at the end of the day’s work.  Event 3 was compacting and levelling the rock base, and Event 4, installing a double layer of geo-fabric above the rock base, and these seem to me to be matters which are properly covered by the ground improvement works.  Event 5 was more flooding, and Event 6 was further finishing work on the connection between the existing drain pipes and pit 5/1; for reasons already given the claims for events 5 and 6 fail. 
  1. [96]
    The day book noted that 2 hours were spent compacting and levelling the rock which was part of the ground improvement works, and the geo-fabric was then laid over the rocks: p 433. Presumably whatever was put above the geo-fabric under the pipeline, either some type of concrete or gravel, was then placed, because the first sections of pipe were then put in place. Overall it does appear that about 2 hours was spent involving the use of an excavator and some labour in placing the geo-fabric and placing the material above the geo-fabric and levelling it.
  1. [97]
    As to quantum, according to the day book a total of 27 square meters of geo-fabric was used, which at $1.60 per meter is $43.20.[131]  There was an excavator hired at $115 per hour that day, so I allow $230.  I allow 2 hours for Mr Wilson’s time, $218, and 2 hours for one labourer, $75.60 and I also allow one-quarter of the usual daily charge for plates, fence and toilet, $28.80.[132]  The specific charges properly allowable under Variation 19 come to $592.60, which with the loading comes to $740.75, plus GST.
  1. [98]
    The quantum for the claims that I am not allowing are more difficult to assess, but it does seem that some time was spent pumping out water and cleaning up after the plates were taken off, and later in the day; overall about an hour was spent because of the water: p 433. There were in fact three labourers working as well as Mr Wilson that day, so if this is recoverable it will be the cost of Mr Wilson plus the three labourers for an hour each, $113.40, $115 for the excavator the time of which was wasted, and one-eighth of the daily rate for plates, fence and toilet, $14.40, a total of $351.80, with the loading, $439.77, plus GST.
  1. [99]
    For the extra costs associated with the presence of the pipes, removing and replacing the temporary pipeline and finishing connections for the additional pipes running into pit 5/1, it is claimed in the day book that this involved 8 hours of two of the labourers (p 433), but this seems quite a bit of time; allowing for the number of existing pipes to be finished off, it is hard to believe it would take that long, particularly when there was some time spent on it the previous day. There also seems to me to have been quite a lot of other work which should have been fairly labour intensive going on that day, which was part of the ordinary work under the contract, particularly laying the pipes and cementing them into the holes in the north wall of pit 5/1. Overall, for this claim I would allow 2 hours for Mr Wilson, two labourers for 3 hours each, $226.80, and one-quarter of the usual daily rate for the plates, fence and toilet, a total of $473.60, which with the loading comes to $592, plus GST.

Variation 20

  1. [100]
    This variation relates to 13 October 2015, and covered four events that day: event one was further work finishing the existing pipes running into pit 5/1, which for reasons I have already given is not recoverable. Event 2 was for water discharge from the construction site into pit 5/1, tidal water pumping and clean up from the day before, which is not recoverable for the reasons given earlier in relation to other claims in relation to water. Event 3 is apparently a reference to further ground improvement works, and Event 4 is a reference to another water claim, said to be major flooding from 825 mm pipeline from upstream Manning Street to pit 5/1, which for reasons given previously is also not recoverable.
  1. [101]
    On this day there was further excavation of the next section north, involving lifting the asphalt and excavating down, with a total of six loads using three trucks.[133]  It appears that on this occasion all of the excavation work was done, as apparently the following day the rock was compacted and covered.  On 13 October there was a 13 tonne excavator hired for eight hours, and I will allow 2 hours of this for the extra excavation, $230.  The three tip trucks cost a total of $1,200, and I will allow 20 per cent of this, $240 for the extra excavation required for the ground improvement works.  The plaintiff is not entitled to claim the whole cost of the whole excavation on this basis, since most of the hole would have been needed anyway to do the work required under the contract.  It appears that some of the fill was tipped at $100 per load, but the “marine mud” loads cost $325 per load: p 436.  Presumably this was based on the wetter material, and the material at the bottom of the holes dug out because of the ground improvement works would have been the wettest, so I allow 40 per cent of the “marine mud” fees, $390. 
  1. [102]
    There was also a quantity of rock purchased from Boral Quarries to go in the hole, $467.19 plus GST: p 300. It appears that that day there were two labourers working on the excavation part of the work, and two working on other things, but not all of the labourers would have been associated with the extra depth of the excavation, nor was Mr Wilson’s time associated specifically with that. In the circumstances, I allow 2 hours for Mr Wilson’s time, $218, and 2 hours for one labourer, $75.60, for the extra excavation work. There would have been some delay to the overall progress of the work because of the extra excavation work required, and in the circumstances I allow one quarter of the daily costs for plates, fence and toilet, $28.80. Accordingly the specific costs for that part of Variation 20 that I would uphold come to $1,649.59, which with the loading comes to $2,061.99 plus GST.
  1. [103]
    With regard to the quantum for the claims that I am not allowing, if the amount claimed for making good rendering work in pit 5/1 is allowed there would be 9 hours each for two labourers, $718.20, allowing for 1 hour’s overtime. I would also allow 2 hours of Mr Wilson’s time for supervising this work, $218, a total for Event 1 of $936.20 plus loading plus GST. The two water claims are alleged to have held up everyone for 1 hour at the beginning of the day and for 2 hours later in the day, but the time for two of the labourers is already included in the amount allowed for Event 1. I would allow another 3 hours for Mr Wilson’s time, $327 and 3 hours for two labourers, $226.80. I would also allow half the usual daily rate for plates, fence and toilet, $57.60, to cover the delay to the work in the hole. The quantum for the water claims therefore comes to $611.40, plus the loading plus GST.

Variation 21

  1. [104]
    On 14 October 2015, there was additional ground improvement work done.[134]  I assume that the rock was placed and compacted by the excavator, and the geo-fabric was then placed over the rock and a quantity of 7 mm drainage gravel put in place above the geo-fabric.  It is not obvious from the plaintiff’s schedule just where this work is covered, but it is clear from the day books that it was done: p 437.  Some may have been included in other variation claims, but in the circumstances I will allow under Variation 21 such work on 14 October as was related to the ground improvement work.  It appears that this work occupied about 3 hours before the crane turned up and the next two pipes were put into place.  This would have involved 3 hours work for the excavator, for which I allow $345 and there would have been I assume the same area of geo-fabric as for Variation 19, so I allow $43.20.  The day book also records a charge of $408.87 for drainage gravel, placed on top of the geo-fabric as I would expect, and I allow this, although there is no supporting document.  There would also have been 3 hours of Mr Wilson’s time, $327, and there were two labourers working specifically on the pipeline extension, which for the first 3 hours of the day would have been ground improvement work, so I allow 3 hours each for two labourers, $226.80.  I also allow one third of the usual daily rate for steel plates, fence and toilet, $38.40.  The specific costs for the ground improvement works under this variation therefore come to $1,389.20, which with the loading comes to $1,736.50, plus GST.
  1. [105]
    What is actually claimed in the Schedule under Variation 21 is even more rendering in pit 5/1, said to be associated with unidentified pipes, and charges for removing the temporary pipes to accommodate the fact that the drains through the excavation were live, and inserting new ones at the end of the day. For reasons given earlier, none of this work is recoverable from the defendant, but on a precautionary basis I should say something about the quantum. Even if the defendant is liable for extra work associated with the construction of pit 5/1 because of the presence of unidentified pipes, the amount of “making good rendering” now claimed by the plaintiff in respect of those pipes has reached the point where I am just not prepared to allow anything further on this basis. If the plaintiff were entitled to charge for this, the amount the plaintiff has already claimed is a reasonable amount and no further amount can be allowed on this basis. It does appear that the temporary pipes were connected and disconnected by a specialist pipe layer who charged $55 an hour, and I will allow 1 hour for these claims, $55, which with the loading comes to $68.75, plus GST.

Variation 22

  1. [106]
    On 15 October 2015, the next section of excavation was carried out, with the day book referring to lifting asphalt and excavation of “marine mud and clean fill, placing, compacting and levelling shot rock”: p 440.[135]  In the course of the excavation, an old pipeline was discovered which crossed the line of the new pipes and hence the excavation, although not quite at 90 degrees.  Mr Curcio was consulted about this, and he had the pipeline broken into, when it emerged that it was apparently an old sewage line.[136]  Ultimately the pipe was dug out, but it was necessary then to investigate what the status of the pipeline was.  A special truck was brought in later to suck out the contents of the pipe and clean it, and then a device was brought in to put a camera up the end of the pipe to ascertain whether it had been sealed off.  Evidently it had been.[137]  These costs were not met by the plaintiff, but this would have been quite disruptive to the plaintiff’s work.  Apart from anything else, the plaintiff said that it was necessary for him to stop work in the excavations due to the smell coming from the pipe after it had been broken into and there was some delay the next day while the investigation happened: p 60.
  1. [107]
    It does seem however that by the middle of the day some progress was being made. This is confirmed by the photographs taken on that day, which show the excavation of the asphalt, and down to the pipes exposing some intermediate pipes along the way, the old sewer exposed, broken into and with water leaking out of it, further excavation work to a lower level, and then rock put into the hole and compacted.[138]  One matter that did concern me is that it was initially my impression that the old sewer was located at such depth that, had it not been for the extra excavation required for the ground improvement work, the excavation would never have reached down to it, so that the difficulties associated with its discovery were all attributable to the ground improvement work.  Careful examination of the photographs however suggests that, although the eastern end of the old sewer was quite low, and probably in the ground improvement work level, the pipe sloped upward to the west, and photo 019 on that day shows the cut off western end of the pipe to be not much lower than the other two cut off pipes, which were above the base of the 1500 mm pipes to be laid.  Accordingly, the old sewer pipe would have been run into in any event, so that delays associated with it are not attributable to the need to do the ground improvement work.
  1. [108]
    In respect of this day, the plaintiff’s schedule refers to 10 separate events: Event 1 is the usual claim for additional rendering work for pit 5/1, which fails for the reasons given above. Event 2 is 1 hour claimed for an unidentified storm water line, which I think is a reference to the old sewer, because Event 3 refers to delay associated with the vapours from that sewer. Event 4 is a claim for marine mud excavation, the share of the cost of extending the excavation attributable to its increased depths, although it was not 60 or 65 per cent of the excavation work, as discussed earlier. Event 5 is referred to as “fill for over-excavation” which I assume means placing and compacting the rock for the ground improvement work, although that seems to be covered by Event 8; Event 6 is referred to as interference by Mr Curcio from the defendant, possibly the delay associated with the investigation of the old sewer. Event 7 is a tidal water in pit 5/1 and run off from surrounding buildings for which half an hour is claimed, which fails for the reasons given earlier. Event 9 is cleaning up the road from mud dripping out of a tip truck, and Event 10 is putting back the temporary connections to the live drains. The latter is not claimable as an extra.
  1. [109]
    There was a 13 tonne excavator hired for 8.5 hours that day, at $115 per hour.[139]  Some of its time would have been spent on digging out the extra excavation, and some of its time spent placing and compacting the rock to replace it.  It is difficult to identify from the day book just how long should be attributable to this, but I suspect that it would be reasonable to allow the same as I allowed for Variation 21, 3 hours, $345.  There would also have been some additional geo-fabric, and again I will allow the same amount, $43.20.  Again there were three tip trucks used, this time for 6, 7.5 and 8 hours, and 6 loads of material taken to the dump, 3 loads of clean fill and 3 loads of “marine mud” for which a higher fee was charged.  Again I will allow 40 per cent of the “marine mud” charges because the material at the bottom of the pit would have been wetter.  The tip trucks cost $1,720, but I expect the process was slower on this occasion because of the old sewer pipe.  There was also evidence to suggest the wetter material was slower to transport, since the tip truck would sit after loading in Walsh Street to try to drain off surplus water before proceeding to the tip.  Hence the cost of shifting wet material, from the bottom of the hole, would have been greater, and in the circumstances I allow $300 for the extra tip truck costs. 
  1. [110]
    There was a tax invoice available for the coarse rock for $475 plus GST: p 332. I allow this amount. There would have then been some additional material on top of the geo-fabric, but I cannot find either a reference to the cost in the day sheets or a supporting document for its cost. I allow half a day for Mr Wilson, 5 hours, $545, and two labourers for 5 hours, $378. According to the day books there were two labourers involved in this job all day, and although the extra excavation would not have generated much extra work for them, I expect they were involved to some extent in placing and levelling the rock, and placing the geo-fabric and the material that went above it. I also allow half the daily rate for the plates, fence and toilet, because of delay caused by the necessity to do the ground improvement works, $57.60. The total for the specific costs for the ground improvement works on 15 October therefore comes to $2,533.80 which with the loading becomes $3,167.25 plus GST.
  1. [111]
    With regard to the quantum of the other claims, I am not prepared to allow anything by way of quantum in respect of even more rendering work for pit 5/1. If the claims associated with the discovery of the old sewer pipe are allowed, the practical effect would seem to be that nothing very much useful was done between about 10.00 am and 12 noon, although some of this may have been attributable to some water coming into the excavation. If these claims were justified, the appropriate amount to allow would be 2 hours for extra hire for the excavator and the three tip trucks, $230 and $480 respectively, and 2 hours for the time of Mr Wilson, $218, the two labourers employed through Our Solutions, $151.20, two other workers employed at $55 and $50 per hour respectively, $210, and one quarter of the daily rate for plates, a fence and toilet, $28.80, a total of $1,318, which with the loading becomes $1,647.50 plus GST. The only other costs claimed are the costs of cleaning up mud from the road and re-connecting the temporary pipes from the drains under Walsh Street for which I would allow half an hour for Mr Wilson, $54.50, and half an hour for the pipe layer, $27.50, plus loading plus GST.

Variation 23

  1. [112]
    Variation 23 related to events on 16 October. Evidently on the previous day there was an accident on the construction site, for which neither the plaintiff nor the defendant was responsible, and in which neither had any direct involvement; someone who was working in the building fell through a hole in a walkway and suffered some injury. As a result, it appears that the State Government Workplace Health and Safety Officers blocked work on the site on 16 October, for most or all of the day. So much is uncontroversial. Mr Wilson said that on that day he was intending to proceed with some more work, but one of the government officers, when arriving at the sites, spoke to him and told him that work was prohibited on the site, which evidently extended to where he was working, and as a result of that he and his men did not do any work that day.
  1. [113]
    That someone from Workplace Health and Safety spoke to Mr Wilson is also uncontroversial, but the defendant’s case was that the plaintiff was prevented from working on that day by those officers because its own work methods were unsafe. This related to men working in a confined space, and in excavations. There are all sorts of requirements which must be followed in the case of work in a confined space, such as in pit 5/1 after the roof was built. When someone is working in an excavation which is more than 1.5 m deep, there are supposed to be precautions taken to prevent injury due to cave-in.[140] Various precautions can be taken, but it was submitted that none of these had in fact been taken by the plaintiff. 
  1. [114]
    The issue in the present case arose in this way: the plaintiff claimed the cost of the delay on 16 October from the defendant on the basis that it was not able to do any useful work anyway because of the stand down due to the accident in the construction site.[141]  The defendant resisted this claim on the basis that it was the plaintiff’s defective work methods which caused it to be prevented from working that day.[142] 
  1. [115]
    Mr Wilson’s account was mentioned briefly in his last affidavit[143] but was mainly set out in oral evidence: pp 51-53.  He adhered to that position under cross-examination (pp 2-33), although his version does not account for his having been at one stage in close proximity to one of the Workplace Health and Safety people, as shown in a photograph.[144]  The defendant’s version depends on the evidence of Mr Curcio who claimed that on 15 October he had told the plaintiff not to work inside drainage pit 5/1 because his workers did not have the proper safety gear required for “confined space entry,”[145] which now applied to the manhole because the slab constituting the roof of the drainage pit had been put in place.  He said in his affidavit that on the following day, 16 October, he had seen the Workplace Health and Safety inspector speaking to Mr Wilson, and when he walked over he was told by the inspector that he had just discovered the plaintiff’s workers in a confined space without proper gear and had ordered them to leave the manhole, and not to work in the excavation for the next section of pipeline until the safety issue had been sorted out.[146]  He went on to say that the plaintiff closed off the excavation and manhole and left the site, and did not make any progress with the work in the trench for about a week.[147] 
  1. [116]
    In oral evidence Mr Curcio said that when he arrived onsite he saw the plaintiff’s men working, and he then went to his office, spoke to someone and then walked over to see what the plaintiff was doing: p 4-87. He saw the officer from the department, who told him that people had been caught in the manhole doing illegal work without safety equipment. He then looked at the excavation and said that no one was to go into that excavation either: p 4-88. The department officer walked away, and he said he told Mr Wilson that they had to get safety up to speed.

Credibility

  1. [117]
    At this stage it is convenient to say something about my views on the credibility of different witnesses. Mr Wilson was a difficult witness, being inclined to give unresponsive answers, and to volunteer information which was not specifically in response to questions. Some answers were rambling and disjointed: for example p 54. On occasions, he appeared to say things which were just wrong: for example at p 47 he claimed that he had constructed the box culvert, which was not correct: p 2-29. It is possible that he gave the first answer without really appreciating what the question was. He claimed that there was no identification of the existing services in drawing 150 (p 92) which he conceded was wrong: p 94. He claimed however that this was not on the version of the tender package that he had (p 93), but that was also wrong because the copy exhibited to his affidavit[148] which was described in the affidavit, para 6, as the drawings attached to the email he received from the defendant, shows those services in drawing 150.[149]  He was also difficult to control at times: p 2-18; p 88, about the significance of seeing the manhole before that he entered into the contract.  There were some aspects of the claim which were just quite implausible, such as claiming the full cost of excavating for the twin cell pipeline when the extra work required was just to dig the trench to a greater depth. 
  1. [118]
    I suspect that part of the trouble was that he may have seriously misunderstood the work involved in completing this contract, particularly the problems he was going to face with water. He undoubtedly did face a great deal of difficulty with water coming into the excavations, and the drainage pit,[150] and I do not doubt that this included water coming from the construction site. That may have led him to blame the defendant for all his problems.  He undoubtedly felt very upset about what had happened to him in this contract, and emotionally committed to this case.  Accordingly, I do not regard him necessarily as a reliable witness, and am weary about much of his evidence, though he did not strike me as someone who was actually dishonest. 
  1. [119]
    Mr Curcio did not make a good impression of me in the witness box, being argumentative, defensive and frequently unresponsive when cross-examined,[151] but my view of his reliability really follows from my resolution of this issue.
  1. [120]
    There were a number of things Mr De Luca said which I do not accept. His evidence that the PVC pipe running into the box culvert was capped (p 2-107) was contradicted by Mr Smits: p 3-81. He said the plaintiff was not able to resume work for 4 or 5 days after 16 October (p 3-115, p 3-117) which was not true. He claimed that the camera investigation of the old sewer was on 15 October (p 3-119) and when shown the entry in the plaintiff’s day book, sought to explain this on the basis that the situation was the same on 20 October. He was also surprisingly reluctant to accept that the plaintiff could not have installed the next set of pipes anyway while that investigation was going on: p 3-120, 121. He also conceded that he made a false statutory declaration to the head contractor about payment to subcontractors, although he claimed that this was done with the knowledge and cooperation of the head contractor’s representative: p 3-57. Overall I was not impressed by him as a witness, and do not regard him as necessarily reliable.
  1. [121]
    I thought Mr Smits was more reliable, or at least the contrary was not shown, although on one point he did appear to change his evidence; that could have been because he misunderstood the earlier question. His recollection of detail may not have always been reliable, but in general I thought his evidence was reliable, and generally accepted it. I do not think I need to say anything about any other witness.

Consideration

  1. [122]
    Neither party called the officer from the department who was on site that day, though Mr De Luca was aware of his identity: pp 3-112. Mr Wilson said that they did not receive any documentation from the department in relation to the matter (p 53) and put in evidence the result of a FOI request to the department for documentation relating to that site, which did not reveal anything, not even a diary note, in relation to any unsafe practice by the plaintiff.[152]  Mr Curcio said that in his experience, sometimes a safety officer would simply warn an employer about something not right, and if there was a further problem the employer would “get the ticket”: p 4-88. 
  1. [123]
    The proposition that a government inspector would not necessarily breach an employer for every safety violation he came upon sounds plausible enough, but the system described by Mr Curcio would require some sort of diary note to be kept of the warning so that on the next occasion the inspector (or another inspector) would know that there had previously been a warning given to the employer, a fact relevant to the decision whether or not to breach the employer on that occasion. In those circumstances, I would expect some record to be kept by the department even of a verbal warning or instruction. I expect that the inspector would have authority to stop someone like the plaintiff from doing work in unsafe conditions, but again it is a little surprising that the exercise of that authority would not produce some paperwork in the department. In these circumstances, the absence of any documentation of any criticism of the plaintiff by the officer that day supports the evidence of Mr Wilson.
  1. [124]
    There is also the consideration that if the departmental officer came upon a worksite where work is supposed to have been suspended anyway because of a different accident, the idea that if he found men apparently part of the project who were still working, he would tell them to stop because of the suspension seems plausible enough; the idea that, if he is attending the worksite in order to investigate some other accident, and he sees men not caught by the stop work order still working, he would divert to check on whether they were working with safety equipment necessary to work in a confined space strikes me as unlikely. The objective considerations therefore I think support Mr Wilson’s account of the exchange.
  1. [125]
    I note that the plaintiff’s day book contains no record of any direction by Mr Curcio on 15 October not to work in the manhole without proper safety equipment, but does refer to a particular person acting as a spotter for confined space work in the manhole: p 440. There was a time sheet signed by that person with duties described as “spotting” among the supporting documents: p 319. The defendant’s site foreman, Mr Winters, took detailed notes of the plaintiff’s work on 15 October, and they make no reference to any direction by Mr Curcio that day, although they do note that from the beginning of work in the manhole there was a spotter at the surface: Exhibit 13.
  1. [126]
    On 15 October Mr De Luca drew the plaintiff’s solicitor’s attention to the fact that the plaintiff was conducting excavations without conventional shoring or benching and sought copies of all inspection reports concerning the stability of the excavations.[153]  Early on 16 October, someone from the head contractor emailed the defendant complaining about the plaintiff not having proper precautions for the trench which was more than 2.3 meters deep.[154]   On 16 October 2015 at 8.30am, Mr De Luca emailed the plaintiff’s solicitor, referring to the email of the previous day, and continuing:

“My construction manager has been advised by Robert this morning that he has not had any certification for the trenching conducted so far.  This is a very serious safety concern.  I have this morning received a very strongly worded letter from Devine Construction expressing their serious concerns for the conduct of your client.”

  1. [127]
    He went on to order the plaintiff to stand down immediately, provide a comprehensive safety report in relation to trench safety and a copy of the plaintiff’s safe work method statement, with no further work to be carried out until that report was provided and approved by the defendant.[155]  The construction manager was Mr Curcio.[156]  Mr Curcio did not give evidence of any other conversations with Mr Wilson on the morning of 16 October, and his account at p 4-87 suggests that the exchange with the departmental officer occurred just after he had arrived at work that day.  He said in his affidavit that he immediately notified Mr De Luca of what had happened: para 19. 
  1. [128]
    It seems strange that Mr De Luca mentioned the complaint from the head contractor, but said nothing about the complaint from a departmental officer. If the departmental officer had also complained about men working in the drainage pit without proper equipment, it strikes me as somewhat surprising that that issue was not mentioned in the email to the plaintiff’s solicitor. Even if this email was sent before the departmental officers arrived on the site, it seems odd that, if the exchange occurred as Mr Curcio said, it was not made the subject of a further email to the solicitor. The solicitor replied to the email at 9.00am, advising that he had arranged for geotechnical testing of the walls before the site had been closed down and that he had reminded Mr Wilson about his obligations.[157]  There was a further email from Mr De Luca to the solicitor on 16 October at 6.25pm, forwarding the head contractors email, but still no mention of any action by a departmental officer, or any concern about working in a confined space: Exhibit PAD12.  There was no reference to any direction about safety equipment for a confined space having been given by Mr Curcio the previous day. 
  1. [129]
    The only piece of objective evidence which supports the defendant’s version is that on 16 October, arrangements were made to hire some equipment which was evidently required for working in a confined space, to be available for the following Monday, 19 October.[158]  The day book shows that there was work being carried out inside the drainage pit on 14 October 2015 (p 437), and photographs taken that day show that the roof was constructed and the pit was accessible from above only through the manhole.  That would suggest that something had prompted greater care in relation to the provision of safety equipment on 15 or 16 October, though it might have been in response to the email from Mr De Luca at 8.30am: Exhibit PAD10. 
  1. [130]
    On the whole, however, I consider the absence of any reference at all to this in the emails from Mr De Luca to the solicitor is inconsistent with Mr Curcio’s evidence, which I reject. I find that there was no direction from the departmental officer to the plaintiff to cease work because of anything that the plaintiff itself was doing or not doing, and that the only direction was consequent upon work on the site as a whole stopping because of the accident the previous day. I also reject Mr Curcio’s evidence about a confined space direction on 15 October.
  1. [131]
    That however is not the end of the matter. It does not necessarily follow that the plaintiff is entitled to succeed in respect of this variation. Accepting that the plaintiff was prevented from working on this day because the whole site was shut down, that did not occur because of anything that the defendant had done or not done, nor so far as I can see was there any provision in the contract by which the defendant warranted that such thing would not occur. The position seems to have been simply that the ability of the plaintiff to do the work required under the contract was temporarily frustrated by the actions of a government authority, which, as between the parties, is in my opinion a loss which lies where it falls. I cannot see any basis upon which the plaintiff is entitled to claim from the defendant the costs of delay on this day if the plaintiff was prevented from working in the circumstances which Mr Wilson described. It follows that the claim in relation to Variation 23 fails.
  1. [132]
    With regard to quantum it was I think appropriate for Mr Wilson to remain at the site all day so I would allow 9 hours for his time, $981. There was also a claim for four labourers, three all day and one for half a day, though it is not obvious that there was any requirement to keep them at the site all day. Mr Wilson said that this was because he was unsure how long the stand down would last, but it must have been apparent by late morning at the latest that no work going to be done that day, and it was not appropriate to keep them there the whole day. There was no evidence that the plaintiff was committed to do so, but there would have been some time for which it was reasonable to pay them. In the circumstances, I think that it is appropriate to limit all four men to 4 hours. Two of the labourers were charging a total of $105 per hour and two $37.80, a total of $722.40.[159] 
  1. [133]
    There was also a charge for the excavator for 8.5 hours, evidently because it just stayed there each day, so this probably was unavoidable and I will allow $977.50, though it is not obvious why a 10 meter tip truck was required for 5 hours, and I will not allow this claim. The allowance for the plates, fence and toilet has to be increased from this day, since a further two plates were obtained at $50 per day each. The daily rate for plates, fence and toilet therefore goes up to $215.20. There was also a claim on this date for hiring the safety equipment, but it in my opinion this was something required anyway in order to do the work required under the contract, so I will not allow this as a cost associated with the delay on this day. Besides, it appears that the safety equipment was only brought on site on 19 October: p 345. The specific costs for this day therefore come to $2,896.10, which with the loading comes to $3,620.13.

Variation 24

  1. [134]
    This relates to 19 October, when no work was done apart from pumping out some water.[160] There were essentially two causes of this delay.  The first is that it was on this occasion that the truck came to clean out the old sewer pipe which had been broken into previously by the excavator, and the closed-circuit TV camera came to investigate the pipe.  The emails exhibited to Mr De Luca’s affidavit (52) suggest that either the plaintiff was told not to do anything until this had been investigated, or for practical purposes the plaintiff was prevented from doing further work until this was investigated, and the defendant had given any necessary direction as to what was to be done in terms of sealing off the pipeline.  However, apart from this Mr De Luca had, by the email on the previous day, instructed the plaintiff not to do any further work until it had provided a comprehensive safety report, and a copy of their safe work methods statements covering trench safety.[161] 
  1. [135]
    There was, in the general notes in one of the drawings, a requirement to comply with BCC Occupational Health and Safety practices, but the content of those practices was never proved. There was evidence that there are workplace health and safety requirements about working in trenches, which require some appropriate measure to be taken to protect against cave-ins, either by benching, shoring or having a geotechnical expert certify the stability of the walls of the excavation.[162]  However, I can find nothing in the notes which entitled the defendant to require the plaintiff to stop work until the information sought in this way had been provided.  It may well be that an entitlement of this nature would appear commonly in standard form contracts, but there was virtually nothing in the way of terms and conditions in this contract.
  1. [136]
    To the extent that there was a contractual obligation on the plaintiff to comply with workplace health and safety requirements, a breach of this would give the defendant a claim for damages, but no such claim is being pursued in this action. The defendant may have been able to seek a mandatory injunction requiring the plaintiff to comply, but again that matter is not in issue. Counsel for the plaintiff did not identify the source of any power in Mr De Luca or the defendant to give the instruction he gave on the morning of 16 October, I have not been able to identify one,[163] and I think that the position is that the defendant did not have any entitlement to make such a demand.  In these circumstances, it could perhaps be characterised as a breach of the implied term to do all things necessary on the defendant’s part to enable the plaintiff to have the benefit of the contract, or at least not to act so as to prevent the plaintiff from having the benefit of the contract.  If the plaintiff was therefore prevented in this way from continuing to work for a period of time, in my opinion the defendant is liable to the plaintiff in damages. 
  1. [137]
    It is I think no answer to say that the plaintiff was not obliged to comply with the instruction. The defendant cannot complain if the emphatically worded instruction given by it was not ignored by the plaintiff, and as a result the plaintiff suffered loss. The position is essentially the same as the instruction not to do further work delaying the twin cell pipeline until the question of the old sewer pipe had been resolved, an instruction I am prepared to assume was given, which is itself essentially the same as the instruction to suspend work on pit 5/1 until the engineer had worked out the appropriate ground improvement works to be carried out, liability for which was accepted.
  1. [138]
    According to the day book for 19 October 2015, there was some work done in the drainage pit, with the book specifically recording various safety precautions being taken: pp 442, 443. Apart from the investigations of the old sewer however, no work was done on the pipeline. The position on this day seems to have been that work was continuing in the drainage pit, but not with the construction of the twin cell pipeline. In these circumstances, I allow half the time for Mr Wilson, 4 hours, $436, but not the time for the other employees who appear to have been involved in work on the drainage pit. There was also an excavator hired for the day, though it was only used to remove and replace the steel plates over the excavation for the pipeline, this was for 8.5 hours, at cost of $977.50. In the circumstances I will allow half the daily rate for the plates, fence and toilet, $107.60. Specific expenses therefore in relation to this variation come to $1,521.10, which with the loading becomes $1,901.38 plus GST.

Variation 25

  1. [139]
    On 20 October it appears that an instruction was given in the morning by Mr De Luca to put sandbags into the old sewer pipe and to carry on: p 444. Work was continuing inside drainage pit 5/1, with various safety precautions including use of a spotter, and around the middle of the day the plates were taken off the trench to enable the geotechnical engineer, Mr Hargreaves, to inspect the trench, which he did around midday that day: p 3-31, 41. He provided a report to the plaintiff that day, which confirmed that there was water in the base of the excavation: Exhibit 2. A photograph attached shows that the water was not far below the invert of the 1500 mm pipes, and covered the coarse rock which had been placed in the excavation on 15 October, as noted above. He recommended digging a sump to pump up water from the excavation, providing terraces, that is benching of the other excavation walls apart from the sandbags around the end of the pipes, at the 1500 mm level, and trimming back the faces of the excavation below the benching to remove water-affected materials. This report was provided to the defendant, whereupon Mr De Luca queried Mr Hargraves’ qualifications.[164]  At that stage, the plaintiff was no longer awaiting instructions on what to do about the old sewer pipe, but was still being told by the defendant not to proceed with work in the excavation.  The costs of the delay on 20 October are therefore in the same position as those for the previous day. 
  1. [140]
    With regard to quantum, again I allow 4 hours for Mr Wilson’s time, but none of the other three employees, who appear to have been engaged in further work on pit 5/1. I allow for the time for the excavator, although it appears that only 4 hours was charged for on this day: $460. I allow half the usual daily rate for the steel plates, fencing and toilet, $107.60. There is also a claim for what is described as locating services at Walsh Street included in the supporting documents (p 371) though it is not referred to in the Schedule.[165]   I will not allow this, if it really is part of the claim.  The specific costs for Variation 25 are therefore $1,003.60, which with the loading becomes $1,254.50, plus GST.

Variation 26

  1. [141]
    According to the day book, on 21 October water was pumped again from the excavation, the old sewer pipe was capped off, and the benching of the trench was finished, but shortly afterwards the north end wall collapsed, said to be due to the vibrations caused by the excavator moving backwards and forwards near it: pp 446, 447. There are a number of photographs taken that day in evidence, though none of them show any significant quantity of water in the excavation. There is however a photograph showing a pump in a hole in the coarse rocks, which may well have pumped the water out. At that stage there was no sign of benching of the trench walls, nor have I seen any indication of benching in any of the photographs taken that day. Photo 005 does however show a quantity of material at the bottom of the hole which was not there previously, and a comparison with 003 suggests that there has been some collapse of the northern end of the excavation, although perhaps not very much. The further photographs show that the excavation was tidied up and enlarged slightly, and subsequently some shoring was obtained, assembled and put into the hole, which would have addressed safety concerns. It does not appear however that there was anything useful done that day in terms of carrying forward the ground improvement work or the construction of the pipeline.
  1. [142]
    It is not clear that any delay on this occasion was caused by the defendant, or even by complying with the defendant’s order not to continue the works. The plaintiff appears to have been attempting to continue with the work, but difficulties arose with the stability of the walls and as a result the plaintiff was delayed until an appropriate system was put in place. That was not something which was caused by the extra depth required in connection with the ground improvement works, and in the circumstances I cannot identify a basis on which the defendant is liable for the plaintiff’s failure to make progress this day. The Schedule refers to flooding from the construction site causing the collapse of the benching, but this appears to be an attempt to base the difficulties on what I have been referring to as the water claims, which for reasons given earlier, do not succeed. Accordingly the claim in Variation 26 for 21 October 2015 fails. It does not appear that any work which could be identified as ground improvement work was actually carried out that day.
  1. [143]
    In relation to quantum, on a precautionary basis it appears that three of the workers were involved in work in the drainage pit, except perhaps for some brief period when they were assisting with the assembly and placing of the shoring. For labour charge I allow 4 hours for Mr Wilson, but that is all. There was an excavator on site but apparently only 5.5 hours were charged that day, $632.50, and there were also two tip trucks hired since some additional material had to be excavated from the hole, one for 5 hours at cost of $400 and one for 4 hours, $320. I have some difficulty in seeing that a second tip truck was necessary, but it appears there were three truckloads taken to the dump since tip fees came to $300 for three loads: p 446. In the circumstances, therefore I would allow $320 for the second tip truck as well, and $272.73 for tip fees, which is the plus GST figure. The Schedule includes the cost of hiring the shoring, which came in various parts but at a total cost of $570 per week: p 385. This is the equivalent of $114 per day, plus GST. There will also be half the usual daily charges for the steel plates, a toilet and fence, $107.60. If all of these costs are properly allowed therefore the specific expenses for Variation 26 are $2,282.83, which with the loading becomes $2,853.54, plus GST.

Variation 27

  1. [144]
    The Schedule describes this variation as an unexpected major water discharge from the construction site resulting in collapse of the benching, requiring the installation of the shoring, but the shoring had been installed the previous day, as shown by both the day book and the photos taken that day. It does appear that there were significant problems with water on 22 October; according to the day book there was water flowing through pit 5/1 at 8.30am, and again at around 1.00pm: p 448. In essence this is just another water claim, and fails for the reasons given earlier. It is not obvious that there was anything done or not done by the defendant which was responsible for the fact that nothing useful in terms of either ground improvement work or extending the twin cell pipeline occurred on this day. This claim also fails.
  1. [145]
    With regard to quantum, the day book says that there were two workers “rendering around pipes” presumably in pit 5/1, so it does appear that some work, presumably useful, was done that day.[166]  In those circumstances, I will not allow any time for the labourers that day, but I will allow four hours for Mr Wilson’s time, $436.  There was an excavator for which $460 was charged that day, for four hours, $114 for the shoring system.  Assuming half the daily rate for the plates, toilet and fence, $107.60, the specific costs total $1,117.60, which with the loading becomes $1,397, plus GST. 

Variation 28

  1. [146]
    On 23 October 2015, which apparently was the last day on which the plaintiff worked on the site, another section of the twin cell pipeline was installed: p 449. The Schedule complained that day of further water discharges from the construction site, and it is clear from photographs in evidence that on that day water was being pumped out of the basement storage facility through the temporary discharge point on the western side of Walsh Street, from where it ran into the plaintiff’s excavation. This would undoubtedly have delayed the plaintiff’s work, and indeed given it extra work, but for reasons given earlier the plaintiff is not entitled to recover damages from the defendant for this. The rock which had already been placed was cleaned up, the geo-fabric placed on top of it, and material on top of the geo-fabric, and then the two pipes were laid. The extra work associated with the ground improvement works on this day therefore would have been the cost of the geo-fabric, some labour to place it, and some costs associated with placing material above the geo-fabric before the pipes were laid.
  1. [147]
    The cost of the geo-fabric is noted in the day book as $360, but this was for a much larger quantity, and I allow the amount allowed previously of $43.20. I allow two hours for Mr Wilson’s time, $218, and two hours for one labourer, $75.60. There would also have been an excavator used to place the material above the geo-fabric and I allow one hour for that, $115, although there were obviously other things that the excavator was used for that day. There was a quantity of drainage gravel provided that day, which I assume is the material placed above the geo-fabric, at a cost of $405.65: p 413. For consistency, I will also allow one quarter of a day for the cost of the shoring system, $28.50, and one quarter of a day for the steel plates, toilet and fencing, $53.90. The specific costs in respect of that part of Variation 28 that amounts to ground improvement works therefore come to $939.85, which with the loading becomes $1,174.81, plus GST.
  1. [148]
    If the plaintiff is entitled to be compensated for delays caused by water, it appears from the day book that there was one hour delay in the morning, and further water came into the site at around 4.00pm, though work finished at 5.00pm and I suspect the work that was done that day was largely finished by 4pm. There are no photographs taken after 4.00pm that day of water actually in the excavation, or indeed of any work being done; there are three photos shortly before 5.00pm showing the site closed up. In the circumstances if the claim for delay due to water is allowable, it would only cover one hour this day. Apart from Mr Wilson, $109, there were two labourers for whom the plaintiff was charged $37.80 per hour and one who charged $55 per hour, so for the three of them for 1 hour it was a total of $130.60. I would allow 1 hour for the excavator, $115, and one eighth of a day for the shoring, $14.25, and for the plates, fence and toilet, $26.95. The total specific expenses associated with delay due to water therefore come to $395.80, which with the loading becomes $494.75, plus GST.

Summary

  1. [149]
    The effect of my conclusions set out above is that the plaintiff has succeeded on some variations but failed on others. The variations on which the plaintiff has succeeded, and the amounts that I have allowed, in each case plus GST, are as follows:

Variation

Amount

Variation 4

$2,853.36

Variation 5

$6,942.34

Variation 6

$1,234.00

Variation 7

$1,234.00

Variation 8

$7,603.88

Variation 18

$2,893.31

Variation 19

$740.75

Variation 20

$2,061.99

Variation 21

$1,736.50

Variation 22

$3,167.25

Variation 24

$1,901.38

Variation 25

$1,254.50

Variation 28

$1,174.81

Total:

$34,798.07

Plus GST:

$3,479.81

Total:

$38,277.88

Less part judgments

10 May 2016:

$24,647.70

14 June 2016:

$5,100.98

Balance payable:

$8,529.20

  1. [150]
    There was also a claim for interest under the Civil Proceedings Act.  The plaintiff will be entitled to interest on the total amount from the time that the cause of action arose until the time the first summary judgment was given, then on the reduced balance between that date and the time of the second summary judgment, and then on the further reduced balance payable until the date of judgment.  On this exercise, I will assume that the cause of action arose on 1 December 2015, when it appears that most of the payment claims were made in some detail.  Allowing interest at the rates in the practice direction, calculating interest in accordance with the court calculator  produces an allowance for interest of $1,425.91.  There will therefore be judgment that the defendant pay the plaintiff $9,955.11 which includes $1,425.91 by way of interest.

Footnotes

[1]  See affidavit of Wilson filed 14 June 2016, Exhibit RJW-33; affidavit of De Luca filed 23 September (“De Luca (52)”), Exhibit PAD5, drawing CO1; Wilson p 2-55. 

[2]  Mander-Jones p 4-49.  Mr Wilson’s theory, that it was to function as an onsite water storage faculty during construction, was wrong, although it may have held water while the plaintiff was working nearby: Affidavit of Wilson filed 2 September 2016 (“Wilson (48)”),  para 7(c); Wilson p 44. 

[3]  See also Smits p 3-75. 

[4]  Mander-Jones p 4-34. 

[5]  Drawing No. 0151; Exhibit 11, para 22.  The “invert level” is the lowest point: p 80. 

[6]  Affidavit of Murphy, para 10; Exhibit LGM1.  It is not clear that these RL measurements are directly comparable. 

[7]  Ibid para 7, Exhibit LGM1.

[8]  Ibid para 8, Exhibit LGM1. 

[9]  Wilson (48) para 7; Wilson p 2-22.   

[10]  Affidavit of Smits para 3, 10 and 11.

[11]  De Luca p 2-104; Smits p 3-91. 

[12]  De Luca p 2-105: no penetration for water below RL6. 

[13]  Statement of claim para 6; defence para 2; affidavit of De Luca filed 29 April 2016 (“De Luca (19)”) Exhibit PD1; affidavit of Wilson filed 21 September 2016 (“Wilson (51)”) Exhibit B.  There are several copies of the tender package in the material, and I shall refer to the drawings in the package just as drawing number X. 

[14]  Statement of claim para 6; defence para 2; Wilson (51) Exhibit D. 

[15] Thiess Services Pty Ltd v Mirvac Qld Pty Ltd [2006] QCA 50 at [34], [54]. 

[16]  Bailey & Bell “Construction Law in Australia” (3rd Edition, 2011) p 231. 

[17]  Affidavit of Smits para 12-16; affidavit of Curcio para 11 and 12; De Luca (52) para 79-81. 

[18]  All drawings in the tender package were marked “Issued for Approval” except Drawing 150, marked “issued for information”, and Drawing 180 marked “Issued for Construction”, the latter not relevant to the action. 

[19]  There was some evidence that “for construction” drawings were subsequently issued, but the defendant appears to have proceeded on the basis that there was no meaningful difference between those drawings and the ones in the tender package, and no copy was ever provided to the plaintiff: De Luca p 3-47. 

[20]  Despite what is stated in Wilson (51) para 22, the tender did not make the provision of “for construction” drawings a condition of the tender, although it did quote on the basis that the defendant was “to supply all survey set out and as constructed information.” 

[21]  Drawing 0121, heading General, para 10.

[22]  Wilson (51) para 45; Wilson p 1-22. 

[23]  I accept the evidence of Mr De Luca to that effect: De Luca (52) para 32-34. 

[24]  Statement of claim para 8(a); other claims are said to be particularised in a spreadsheet, Exhibit RJW22 to affidavit of Wilson filed 15 April 2016 (“Wilson (8)”) which was not read.  It in fact contains particulars of variations 1, 2, 3 and 16 also, and I will act on them. 

[25]  Affidavit of Russell filed 15 April 2016 (“Russell (9)”) Exhibit SVR1 p 2.

[26]  Wilson p 2-18. 

[27]  Russell (9) Exhibit SVR2 p 414.

[28]  Ibid Exhibit SVR1 pp 2-16. 

[29]  Ibid pp 3-15.

[30]  Ibid pp 8, 9.  Exhibit SVR2 p 414 records tip fees of $100 for that day, but there would have been  spoil to tip anyway. 

[31]  $210 + $110 + $200 + $2.22 + $30 + $189 + $272.50 + $2.34.

[32]  Wilson (51) Exhibit F. 

[33]  Also at Ibid Exhibit L, although this was not identified during the trial: p 3-20. 

[34]  See Ross p 4-40.

[35]  The only other person on site involved in “administration” was Ms Russell: p 2-17. 

[36]  They appear more clearly on a marked, enlarged copy of part of this drawing which is the last page of Exhibit PAD5 to De Luca (52). 

[37]  Mr Wilson said this was done after the contract was entered into: p 31.  He had not expected what was found: p 81. 

[38]  Mr Wilson said he would generally confirm existing pipe locations from BCC drawings: p 86. 

[39]  Applying Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[52]; Watson v Scott [2015] QCA 267 at [30]. 

[40]  Curcio p 4-84, 85, which sounds plausible despite my strong reservations about the witness. 

[41]  See particulars Wilson (8) Exhibit RJW22 p 2; supporting documents Russell (9) Exhibit SVR1 pp 18-30; day sheet ibid Exhibit SVR2 p 415.

[42]  I need not consider whether it also fails for other reasons. 

[43]  See particulars Wilson (8) Exhibit RJW22 p 3; supporting documents Russell (9) Exhibit SVR1 pp 32-45; day sheet ibid Exhibit SVR2 p 416.

[44]  See particulars Wilson (8) Exhibit RJW22 p 14; supporting documents Russell (9) Exhibit SVR1 pp 225-235; day sheet ibid Exhibit SVR2 p 429.

[45]  Defence para 5.2(a).

[46]  Defence para 5.2(d).

[47]  Wilson (48) para 4: Wilson p 48.  It was not marine mud: Exhibit 3. 

[48]  Wilson (51) para 55, 56. This was on the basis that the water running through the excavation softened the clay: Exhibit 3. 

[49]  De Luca (19) para 29.

[50]  Ibid para 30–33.

[51]  Ibid para 34.

[52]  Russell (9) Exhibit SVR2 pp 417-422.

[53]  Exhibit 5 p 21. This was plus GST, but allowed a loading of only 10%.  The pre-loading figure was $2,253.87: Exhibit 5 Appendix 2 p 1. 

[54]  Exhibit 5 Appendix 2, p 2. 

[55]  Russell (9) Exhibit SVR1, p 61. 

[56]  Wilson (8) Exhibit RJW22, p 4. 

[57]  Russell (9) Exhibit SVR1, p 62. 

[58]  Exhibit 5 Appendix 2, p 2. 

[59]  Russell (9) Exhibit SVR2, p 418. 

[60]  Ibid Exhibit SVR1, p 63. 

[61]  Wilson (8) Exhibit RJW22, p 5. 

[62]  Exhibit 5 Appendix 2, p 2. 

[63]  Russell (9) Exhibit SVR2, p 421; De Luca (52) para 16; Wilson, p 48. 

[64]  For this claim, see particulars Wilson (8) Exhibit RJW22 p 6; supporting documents Russell (9) Exhibit SVR1 pp 90-104; day sheet ibid Exhibit SVR2 p 421; Exhibit 5 Appendix 2 p 2.

[65]  Which is neither the rate claimed by the plaintiff nor the rate allowed by the defendant’s cost assessor, and there was also reference to the wrong invoice number.

[66]  Wilson (51) para 42.  These figures would include allowances for administration and profit. 

[67]  Russell (9) Exhibit SVR2, p 422. 

[68]  There are numerous references to “tidal” water in those sheets: Russell (9) Exhibit SVR2, pp 422, 423, 424, 426, 427, 433, 440 and 447. 

[69]  Wilson (48) para 7(o). 

[70]  Smits p 3-87. 

[71]  Wilson (51) Exhibit Y: Photos Sept 28 2015 011; 13 Oct 2015 002; Walsh St 23-10-15 016; Jan 10 2016 007.  See also Winters p 4-95: It happened about every three days.

[72]  Affidavit of Curcio, para 31.  I do not accept this evidence. 

[73]  Smits p 3-88: automatic switch with manual override, both ways; but p 3-93: only turn off.  Winters: p 4-96: Cannot switch off automatic switch, but can disconnect power to pump. 

[74]  Smits p 3-87.  He did say anyone could operate the switch, including the defendant. 

[75]  Affidavit of Russell filed 5 September 2016, para 4-8.  Winters did not recall any such conversation: p 4-96.  He did recall a request from Mr Wilson: p 4-91.  I prefer the evidence of Ms Russell.

[76]  Mr Wilson’s assertion to the contrary, p 38, 89, p 3-87 must depend on his interpretation of drawing 157, which I have rejected.  In fact he knew before he started work that the system was “live”, at least to some extent: Exhibit 10; Wilson p 3-98; affidavit of Smits para 4; Smits p 3-74. 

[77]  Affidavit of Curcio para 29. 

[78]  Mander-Jones pp 4-25-27. 

[79]  Affidavit of Smits para 10, 11. 

[80]  Smits p 3-91: did not see water flowing from pipes into his excavations. 

[81]  Smits p 3-78.  Or the water table was just high: Hargreaves Exhibit 4.  

[82]  He said from tide levels and the levels on the drawings in the tender packages, tidal inundation was inevitable: p 4-24. 

[83]  Which is possible: Hargreaves p 3-32. 

[84]  The head contractor had a geotechnical report on the site: Smits p 3-73.  He said it showed a tidal water table on the site: p 3-78. 

[85]  Wilson (48) para 7(g); but see Wilson p 38, p 2-56, p 2-75: one late afternoon storm; Russell (9) Exhibit SVR2, p 424: “storms – major”.

[86]  Wilson (48) para 7(j); Wilson p 37. 

[87]  Wilson (48) para 7(a). 

[88]  Ibid para 7(b). 

[89]  Ibid para 7(c).  But see affidavit of Smits, para 22: pumped to Manning Street from where it would have been through the pipe to pit 5/1 in Walsh Street.   

[90]  Ibid para 7(e). 

[91]  De Luca p 2-107.  But see Smits p 3-81: the pipe was not capped. 

[92]  Wilson (48), Exhibit A.

[93]  There is no independent or photographic evidence it was ever that full, and no “tide mark” on the concrete wall.  But Mr Smits supported this theory: p 3-85. 

[94]  Mr De Luca sought to explain this as water leaking around the lid a little: p 3-101.  That is implausible, particularly if as he said there was no catchment for that pipe: p 2-107.  Smits p 3-82: ground seepage water. 

[95]  Wilson (48) para 7(e).

[96]  De Luca (52) paras 65 – 67, Exhibit PAD16.

[97]  Ibid Exhibit PAD17.

[98]  Ibid Exhibit PAD5.

[99]  De Luca p 2-107; contra Smits p 3-81. 

[100]  Smits p 3-83: after a natural deluge of rain the culvert was always pumped out.  He said water came from Manning Street (p 3-83) but it is difficult to see how water from the street could get there. 

[101]  Except Exhibit 1, which shows deep water flowing through pit 5/1, evidently during a storm. 

[102]  003.jpg: See Wilson p 2-40. 

[103]  I note that the plaintiff’s schedule acknowledges that there was an extreme high tide at 7.45am that day: Wilson (8) Exhibit RJW-22, p 7. 

[104]  Ibid p 8. 

[105]  Russell (9) Exhibit SVR2, p 422.  Mr Ross said in his report he was allowing 5.5 hours but in fact only allowed 3 hours: Exhibit 5, Appendix 2, p 3. 

[106]  Russell (9) Exhibit SVR1, p 106.  The plaintiff has claimed 6 hours, and Mr Ross said he was allowing 5 hours but in fact allowed 3 hours for reasons that were not explained. 

[107]  Ibid p 110. 

[108]  Russell (9) Exhibit SVR2 p 423. 

[109]  September 28 2015, 011.jpg. 

[110]  Russell (9) Exhibit SVR2 p 424.

[111]  Sept 29 2015 008. 

[112]  Russell (9) Exhibit SVR2, p 424, Exhibit SVR1, p 126-145. 

[113]  Wilson p 2-34. 

[114]  Russell (9) Exhibit SVR1, pp 188-206.

[115]  Russell (9) Exhibit SVR1, pp 197-204.

[116]  See photo Oct 6 2015 007.

[117]  Russell (9) Exhibit SVR 2, p 428.

[118]  Russell (9) Exhibit SVR2, p 428.

[119]  Russell (9) Exhibit SVR1, pp 213-218.

[120]  Ibid pp 219-223.

[121]  Statement of Claim, para 8(d).

[122]  Russell (9) Exhibit SVR2, p 430.

[123]  Defence para 5.4(d), (e); De Luca (52) para 52.

[124]  Wilson (51) Exhibit Q.

[125]  Exhibit 5 Appendix 2.

[126]  Russell (9) Exhibit SVR2, p 431.

[127]  Russell (9) Exhibit SVR2, p 430; Wilson (8) Exhibit RJW-22, p 15.

[128]  Other invoices suggest a charge of $80 per hour per truck: e.g. Russell (9) Exhibit SVR1 pp 325, 6.

[129]  The photos taken on 8 October do not show any excavator.

[130]  Wilson (8) Exhibit RJW-22, pp 15, 16.

[131]  Russell (9) Exhibit SVR1, p 270.

[132]  Ibid pp 271-281.

[133]  Russell (9) Exhibit SVR.2 pp 435, 6.  See supporting documents Exhibit SVR1 pp 283-301.

[134]  Russell (9) Exhibit SVR2 p 437. Supporting documents Exhibit SVR1 pp 303-313.

[135]  Mr Winters also kept notes on this day, which are broadly consistent with those in the day book: Ex 12.  They support the general reliability of the day book notes.

[136]  Wilson p 49, p 2-60.

[137]  De Luca p 3-121.

[138]  The photos on USB drive, Wilson (51) Exhibit Y: there are 19 photos dated 15 October 2015.

[139]  Supporting documents Russell (9) Exhibit SVR1 pp 315-333.

[140]  Wilson p 105; Hargreaves p 3-36; Exhibit 5 Appendix 5.

[141]  Wilson (8) Exhibit RJW-22 p 17.

[142]  Defence para 5.5(e)(xiv); De Luca (52) para 59.

[143]  Wilson (51) para 43. 

[144]  Affidavit of Curcio, Exhibit JC2. 

[145]  Affidavit of Curcio, para 50.

[146]  Ibid para 17. 

[147]  Ibid para 21, 22. 

[148]  Wilson (51) Exhibit C. 

[149]  See also Exhibit 8, which contains an electronic copy of the email and attachments sent by the defendant: p 3-16. 

[150]  Mr Curcio said that after the defendant took over the balance of the plaintiff’s contract, he “fought like hell with this high tide”: p 4-89. 

[151]  See for example, p 4-76. 

[152]  Wilson (51) Exhibit 5.

[153]  De Luca (52) Exhibit PAD10. 

[154]  De Luca (52) Exhibit PAD9. 

[155]  De Luca (52) Exhibit PAD10. 

[156]  Affidavit of Curcio, para 1. 

[157]  Ibid Exhibit PAD11.

[158]  Russell (9) Exhibit SBR1, p 345. 

[159]  Supporting documents Russell (9) Exhibit SVR1 pp 335-347.

[160]  Russell (9) Exhibit SVR2 pp 442, 3. 

[161]  Exhibit PAD10. 

[162]  Hargreaves p 3-36; Exhibit 5 Appendix 5. 

[163]  It is possible I suppose that there is such a power conferred on a contractor by workplace health and safety legislation, but if so I was not referred to it.

[164]  De Luca (52) Exhibit PAD14.  Mr Hargraves was not cross-examined as to his expertise when he was called as a witness.

[165]  Wilson (8) Exhibit RJW22 p 18.

[166]  The pipes running into pit 5/1 must be the most thoroughly rendered pipes in captivity.

Close

Editorial Notes

  • Published Case Name:

    Wilson's Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd

  • Shortened Case Name:

    Wilson's Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd

  • MNC:

    [2017] QDC 29

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    17 Feb 2017

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
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
2 citations
Jump To
Cite 1 - (2015) 256 CLR 104
Cite 2 - (2015) 256 CLR 104
Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2006] QCA 50
2 citations
Jump To
Cite 1 - [2006] QCA 50
Cite 2 - [2006] QCA 50
Watson v Scott[2016] 2 Qd R 484; [2015] QCA 267
2 citations
Jump To
Cite 1 - [2015] QCA 267
Cite 2 - [2015] QCA 267

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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