Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd
[2006] QSC 54
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- Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd[2006] QSC 54
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Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd[2006] QSC 54
Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd[2006] QSC 54
SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ
No 7831 of 2005 DISCOVERY BEACH PROJECT PTY LTD Applicant and NORTHBUILD CONSTRUCTION PTY LTD Respondent
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BRISBANE ..DATE 06/03/2006 |
[1] THE CHIEF JUSTICE: I gave judgment in this matter which was of considerable complexity on the 28th of October 2005. The formal judgment set aside awards of an arbitrator determining that he has jurisdiction to hear and decide upon variation requests 71 as amended and 75. The reason why I set aside the arbitrator's determination was that, in my view, the parties had agreed to commit those issues to other experts. In particular, as emerges from paragraph 15 of my Reasons For Judgment, they had agreed that:
"Issues relating solely to the calculation of time be dealt with by another expert, Mr Lee."
[2] Mr Dunning has referred me to some subsequent correspondence which does raise some uncertainty between the parties as to the extent of Mr Lee's commitment. They comprise a letter of 20th of December 2005 from Ebsworth & Ebsworth to Minter Ellison, a letter of 7th December 2005 from Minter Ellison to Mr Lee and Mr Lee's letter to Minter Ellison of 9th December 2005.
[3] The position between the parties seems clear from what I have been told this morning, and that is that issues of extension of time under amended VR71 and 75 are to be determined by Mr Lee and that once that has been done the assessment of costs' issues arising from those matters are to be dealt with by another expert, Mr Callaghan.
[4] Mr Hastie, who appears this morning for Discovery Beach, urged me to specify with some definition which, if any, issues of prolongation remained for consideration and determination by Mr Lee. Plainly I cannot do that and I should not be asked to do that. But because there is some uncertainty between the parties, evident from that correspondence, there is utility in my making a declaration in these terms: that Mr Phillip Lee of Tracey Brunstrom & Hammond remains the expert appointed by the parties to determine all disputes relating to extension of time; ie prolongation, as covered by amended variation request 71 and variation request 75 on the basis that Mr Lee's determinations relate solely to the calculation of time and that Mr Lee remains so appointed to determine any residual issues in that regard, if any, surviving his interim determinations on those variation requests.
[5] THE CHIEF JUSTICE: In determining where responsibility for the need for this proceeding today lies, I note the arguable generality of the declaration sought in paragraph 1 by Northbuild. On the other hand, I note, in particular, paragraph 2 of Minter Ellison's letter of 7 December 2005, which, as I say, was singularly unhelpful to Mr Lee and fed the uncertainty which infused his letter of 9 December 2005 following so shortly thereafter.
[6] The position between the parties being that Mr Lee was to do the time assessment and Mr Callaghan was to do the consequential cost assessment that could have been stated in the clearest of terms with an urging of Mr Lee to get on with the job.
[7] Doing the best I can I am going to order that Discovery Beach pay one quarter of Northbuild's costs of today's proceeding to be assessed.