CITATION: | Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2021] QSC 224 |
PARTIES: | BUILT QLD PTY LIMITED ACN 108 064 099 (plaintiff) v PRO-INVEST AUSTRALIAN HOSPITALITY OPPORTUNITY (ST) PTY LIMITED (FORMERLY KNOWN AS AUSTRALIAN HOSPITALITY OPPORTUNITY (ST) PTY LTD) AS TRUSTEE FOR THE PRO-INVEST AUSTRALIAN HOSPITALITY OPPORTUNITY (BRS SPRING HILL) TRUST ACN 163 479 221 (defendant) |
FILE NO/S: | BS No 5426 of 2017 |
DIVISION: | Trial Division |
PROCEEDING: | Claim |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 3 September 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 September 2020 to 14 October 2020; 12 November 2020 to 13 November 2020 |
JUDGE: | Williams J |
ORDER: |
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CATCHWORDS: | CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – THE CONTRACT DOCUMENTS – THE INTERPRETATION OF THE CONTRACT DOCUMENTS – where the parties entered into a Formal Instrument of Agreement on or about 29 April 2015 – where Schedule 1 outlines the documents which constitute the contract documents – where the contract documents include the Formal Instrument of Agreement, the General Conditions and Annexures Part A to P – where Annexure Part O contains clarifications – where clause 1(u) of Annexure Part O of the contract provides that work under the contract includes the contractor’s alternative proposal for structural and mechanical systems on the basis that the contractor meets the performance requirement of the tender drawings and specifications – where the meaning of “performance requirement” is in dispute – where the plaintiff contends that not every aspect of the tender drawings and the specification amounts to a performance requirement – where the defendant submits that the performance requirements are to be found in the tender drawings and the specification – where the plaintiff contends that it is necessary to have regard to extrinsic evidence to identify the “alternative proposal” that the plaintiff was obligated to install – where the plaintiff contends that the words “alternative proposal” used in the contract is a reference to a two pipe VRF heat pump system, which cannot provide mode control to each guest room – whether extrinsic material is admissible to interpret the words “alternative proposal” contained in clause 1(u) of Annexure Part O of the Contract – whether, on the proper construction of clause 1(u) of Annexure Part O, mode control was a performance requirement of the tender drawings and the specification CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – VARIATIONS – GENERALLY – where the plaintiff and the defendant entered into a contract for the design and construction of a hotel in April 2015 for the sum of $33,366,027.00 – where the hotel includes guest rooms, food and beverage facilities, front of house facilities, back of house facilities, two basement level carparks and a guest gymnasium – where the plaintiff contends that the mechanical works, including the air conditioning and heating system, did not require the mechanical system installed by the plaintiff to provide for mode control in each individual room – where the plaintiff submits that the defendant’s requirement notified in correspondence dated 11 August 2016, 16 August 2016 and 17 September 2016 (individually or together the “Mechanical Direction”) that the mechanical system being installed be changed was a direction to undertake a variation under the contract – where the defendant disputes this and contends that the notices required that the plaintiff comply with its obligations under the contract and install an air conditioning system in accordance with the contractual requirements – whether the plaintiff was required to design and install an air-conditioning system allowing mode control in each room – whether the notices given in August and September 2016 were a direction to the plaintiff to undertake a variation or alternatively constituted a notice to rectify defective work CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – VARIATIONS – GENERALLY – where the plaintiff contends that by correspondence there was an express or implied direction for the plaintiff to supply and install certain bathroom fixtures and as a result, this amounted to a variation within the meaning of the contract – where the plaintiff contends that the plaintiff is entitled to an assessment of the costs of the variation – where, if there is no entitlement to the costs of the variation, the plaintiff contends that the defendant is estopped from relying on or has waived its right to insist upon satisfaction of clause 36.1 of the contract with respect to this variation – where the defendant contends that the plaintiff is not entitled to an increase in the contract sum in respect of the alleged bathroom variation – whether there was a change in the work to be undertaken within the scope of clauses 36.1(a) to (e) of the contract – whether there was a direction to perform the variation as required by clause 36.1(f) of the contract – whether the correspondence relied upon by the plaintiff amounts to a direction to perform a variation pursuant to clause 36.1(g) CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – VARIATIONS – LIABILITY TO PAY – where a number of variations have been approved and certified by the Superintendent – where it is accepted that the work has been carried out and the defendant has paid the plaintiff the amounts claimed, except for the amount identified as representing 7.5 per cent of the certified value of the variations – whether on a proper construction of clause 36.4(d), the plaintiff is entitled to an additional 7.5 per cent for preliminaries CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – TIME – LIQUIDATED DAMAGES – where the defendant seeks payment of the amount of $196,623.21 by way of additional liquidated damages calculated as a result of the correction of an error in calculating the date for practical completion – where the defendant contends that in calculating the adjusted date for practical completion a five day work week was used when a six day work week should have been used – where the plaintiff contends that the defendant is not entitled to the additional amount of liquidated damages – whether the defendant is entitled to the amount for liquidated damages CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – DEFECTS AND NEGLIGENCE – LIABILITY – whether the air conditioning system being installed by the plaintiff prior to the notices in August and September 2016 was defective because it did not meet the performance requirements of the contract, or alternatively, of the mechanical services specification and the mechanical services preliminary design drawings CONTRACTS – AUSTRALIA – BUILDING AND CONSTRUCTION CONTRACTS IN AUSTRALIA – DEFECTS AND NEGLIGENCE – LIABILITY – where the defendant claims the cost to rectify non-mechanical related defects and defects which have been identified in relation to the mechanical services system – whether the works are defective works – whether the defendant is entitled to recover any costs incurred to rectify the defective works Civil Proceedings Act 2011 (Qld), s 58 Queensland Building and Construction Commission Act 1991 (Qld), s 67P Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317, cited Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, cited Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85, considered CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd v John Holland Pty Ltd (No 6) [2015] WASC 217, cited Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, followed Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471, followed Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, consideredOpat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 360, cited Westpac Securities Administration Ltd v Australian Securities and Investments Commission [2021] HCA 3; (2021) 95 ALJR 149, cited |
COUNSEL: | P L O'Shea QC with M Steele and B Reading for the plaintiff T P Sullivan QC with J Mitchensen for the defendant |
SOLICITORS: | Clayton Utz for the plaintiff Thomson Geer for the defendant |
BACKGROUND8
THE MECHANICAL SERVICES SYSTEM9
Design and Construct Contract10
Plaintiff’s contentions23
Use of extrinsic material24
Extrinsic evidence sought to be relied upon by the plaintiff27
Performance requirement of the tender drawings and the Specification33
Defendant’s contentions35
Consideration38
Construction of clause 1(u) Annexure Part O43
Mechanical Direction / Variation48
JOINERY DELAY50
BATHROOM DESIGN VARIATION (VP32)50
Alleged Direction52
What was required to be built under the Contract?53
Consideration57
Was there a change in the work to be undertaken within the scope of clauses 36.1(a) to (e)? Was there a direction within clause 36.1(f) or does it amount to a direction to perform a variation pursuant to clause 36.1(g)?58
THE SCHEDULE 3 AND 4 VARIATIONS67
Schedule 3 - VP38 – “Ceilings and partition alterations in the Great Room”68
Schedule 3 - VP53 – “Back of House Corridor – second path of egress”68
Schedule 3 – VP59 – “Admin and luggage change layout and joinery”69
Schedule 3 – VP78 – “BWIC for boom gate”69
Schedule 4 – VP58 – “BOH (back of house) ceiling”69
Schedule 4 – VP60 – “Bathroom light switch – off master switch”70
Schedule 4 – VP64 – “Clipsal colour switchplates as per JPDC finishes schedule”75
Schedule 4 – VP66 – “Desk lamp hard wired”79
Schedule 4 – VP67 – “Supply and installation of power sockets and wiring for LED lighting”81
Schedule 4 – VP73 – “Paint stair soffits/colour contrasting nosings”85
Schedule 4 – VP76 – “Additional corridor lighting given flip of rooms”87
Schedule 4 – VP114 – “Joinery – Damage to walls by separate contractors”88
SCHEDULE 5 PROVISIONAL SUMS89
Provisional Sum No 2 – “Joinery to Greatroom”90
Provisional Sum No 6 – “Landscaping, irrigation and paving including design, supply & installation of streetscape trees, grates, kerbing and public artwork”90
Provisional Sum No 8 – “Make good of the Council footpath to Wharf and Henry Streets”90
PRICING OF VARIATIONS SCHEDULE 6 - PRELIMINARIES94
OTHER CLAIMS BY PLAINTIFF97
COUNTERCLAIM – ALLEGED NON-MECHANICAL DEFECTS99
Defect Item One – “Crack in the basement level 2 slab”99
Defect Item Two – “The electrical penetration running through the mechanical services slab needs to be adequately sealed and protected”102
Defect Item Three – “The storm water pipes, and each penetration through which they run, need to be adequately sealed and waterproofed”102
Defect Item Four – “The concrete structure around the basement staircase and communications hub wall needs to be adequately waterproofed”103
COUNTERCLAIM – ALLEGED MECHANICAL SERVICES SYSTEM DEFECTS104
Defect 1.1 – “Duct bends & detail design”105
Defect 2.1 – “Air conditioning – simultaneous heating and cooling”108
Defect 2.2 – “Air conditioner – air commissioning”112
Defect 2.3 – “Substation air intake”114
Defect 2.4 – “Office – carpark ventilation noise”115
Defect 4.2 – “Guest room & maids room exhausts”116
Defect 4.3 – “Level 1 to 12 outside air supply”120
Defect 4.4 – “Guest room toilet exhaust risers – fire rating”121
Defect 4.5 – “Guest room fan coil unit – interface with occupancy controls”121
Defect 4.6 – “Guest floor lift lobbies – moisture damage to ceilings and dripping air conditioning grills”123
Defect 5.1 – “HX-1, HX-2 filter installation”123
Defect 5.2 – “Roof mounted duct work – water pooling”124
Defect 5.3 – “Insulation on roof duct work”125
Defect 5.4 – “HX-1, HX-2 condensation traps omitted”126
Defect 5.5 – “Water in HX-1 isolating switch”127
Defect 5.6 – “HX-1, HX-2 filter gauges defective”128
Defect 5.7 – “HX-2 – water pooling in outside air duct”129
Defect 6.1 – “As installed drawings (O&M manuals)”130
Defect 6.2 – “O&M manual content”131
DEFENDANT’S CLAIM FOR ADDITIONAL LIQUIDATED DAMAGES133
INTEREST139
NEXT STEPS140
ANNEXURE A – MECHANICAL VARIATION, COSTS, DELAY, EXTENSION OF TIME AND LIQUIDATED DAMAGES141
Plaintiff’s claim for costs of carrying out the Mechanical Variation141
Costs of the variation144
Credit – contract works not required or incorporated due to Mechanical Variation145
Additional works – three-pipe mechanical system146
Demolition148
Reinstatement works149
Ceilings and partitions reinstatement149
Tiling reinstatement150
Electrical reinstatement150
Fire ratings reinstatement151
Hydraulics reinstatement151
BWIC151
Item 128 – “Core holes – 200mm through to 210mm post tension slab"152
Item 127 – “Core holes – 200mm through to 700mm post tension slab”152
Item 132 – “Road closure for craneage”152
Item 129 – “Craneage to lift plant to roof”152
Item 130 – “Mobilisation and de-mobilisation”153
Item 131 – “Traffic control during crane days”153
Item 126 – “X-ray scanning core holes”153
Summary154
Delay and the Mechanical Variation155
Is the plaintiff entitled to an extension of time due to the Mechanical Variation?155
Delay analysis methodology172
Reasonable steps to mitigate delay176
Contribution to cause of delay181
Christmas shutdown187
Claim for EOT188
Delay Damages197
Liquidated damages209
BACKGROUND
THE MECHANICAL SERVICES SYSTEM
“1. In respect of the alleged Mechanical Variation:
“1. In respect of the alleged Mechanical Variation:
Design and Construct Contract
“2. PERFORMANCE
“3. CONTRACT DOCUMENTS
The Contract comprises the Contract Documents.”
“4. ENTIRE CONTRACT
“all tasks necessary to design and specify the Works required by the Contract, including preparation of the design documents and, if the Principal’s project requirements include a preliminary design, developing the preliminary design.”
“the documents stated in Annexure Part K.”
“the Principal’s written requirements for the Works described in the documents stated in Annexure Part L which:
(a) shall include the purpose;
(b) may include the Principal’s design, timing and cost objectives for the Works; and
(c) shall include a preliminary design.”
“the work which the Contractor is or may be required to carry out and complete under the Contract and includes variations, remedial work, construction plant and temporary works.”
“2.1 Performance and payment
The Contractor shall carry out and complete WUC in accordance with the Contract and directions authorised by the Contract.
Subject to the express provisions of the Contract and the performance by the Contractor of its obligations pursuant to the Contract, the Principal shall pay the Contractor the contract sum adjusted by any additions or deductions made pursuant to the Contract.
2.2 Contractor’s warranties
Without limiting the generality of subclause 2.1, the Contractor warrants to the Principal that:
…
2.6 Performance specifications
Where the Principal’s project requirements include performance specifications:
…
2.10 Clarifications
The parties agree that the clarifications apply to the Works or the contract sum.”
“8.1 Discrepancies
When construing the Contract Documents the following rules of construction apply:
Where the Contractor considers that there is any ambiguity or discrepancy between the Contract Documents, it shall promptly advise the Superintendent in writing, who shall, subject to this subclause 8.1, give the Contractor a direction as to the interpretation to be followed.
The Contractor shall have no entitlement as a consequence of a direction given by the Superintendent under this subclause 8.1 which is consistent with the rules of construction in this clause 8.1.
…
8.4 Contractor’s obligations in relation to the Principal’s project requirements
The Contractor shall:
If in the Superintendent’s opinion the information sought by the Contractor under this subclause is reasonably necessary to clarify the Principal’s project requirements, the Superintendent may refer the request to the Principal and obtain a response to such request.
Neither the Superintendent nor the Principal shall be bound by any information provided to the Contractor in relation to the Principal’s project requirements unless it is in writing and signed by the Superintendent and expressly provides that the information forms part of the Principal’s project requirements.
8.5 Contractor’s design obligations
The Contractor shall as part of the Contractor’s design obligations:
“29.3 Defective work
If the Superintendent becomes aware of work done (including material provided) by the Contractor which does not comply with the Contract, the Superintendent shall as soon as practicable give the Contractor written details thereof. If the subject work has not been rectified, the Superintendent may direct the Contractor to do any one or more of the following (including times for commencement and completion):
If:
the Principal may have that work so rectified and the Superintendent shall certify the cost incurred as moneys due from the Contractor to the Principal.
29.4 Acceptance of defective work
Instead of a direction pursuant to subclause 29.3, the Superintendent may direct the Contactor that the Principal elects to accept the subject work, whereupon there shall be a deemed variation.”
“44.5 Entire understanding
The Contract:
Each party has entered into the Contract without relying on any representation by any other party or any person purporting to represent that party.”
“Principal’s project requirements
(Clause 1)
The Principal’s project requirements:
“1. WUC includes:
…
…
(ag) Refer VE items listed below:
“1.2.2 SPECIFICATION OBJECTIVES
I. To provide a basis for competitive tendering
II. To allow competent Contractors to price the works
III. To provide documentation to demonstrate to the Client the scope and quality of the project
IV. To define the expectations upon the installer, by the Consulting Engineer
…
1.2.3 OBLIGATIONS OF THE MECHANICAL CONTRACTOR
I. interpretation of the Specification or drawings
II. problems in complying with the Specification
III. omissions from the tender documents
IV. suggested alternatives/substitutions
…
I. Heat load calculations
II. Equipment selections
III. Duct work and pipe work distribution system design …”
“2.1 SCOPE OF WORK
2.1.1 GENERAL SCOPE OF WORK
…
…
2.1.2 SPECIFIC SCOPE OF WORK
…
…
2.1.3 DESIGN CALCULATIONS
2.1.4 PREPARATION OF DOCUMENTATION
…
…
2.1.7 SAMPLES, PROTOTYPES AND APPROVED EQUIPMENT
VRV plant Air-cooled chiller Fans – centrifugal Fans – axial Air filters Dampers Air Diffusion equipment | Mitsubishi Electric, Daikin Aermec, Carrier Fantech, Richardson, Phoenix Fantech, Ziehl-Abegg Airpure, Email, and Camfil Farr Holyoake, Blendair Holyoake, Air Grilles |
“The entire hotel (excluding specialist areas which have stand-alone DX air conditioning systems) shall be provided with chilled water and heating hot water from a common air-cooled 4 pipe chiller (heat recovery type) located on the roof …”
“2.2.3 GUEST ROOM AIR CONDITIONING FCU’S
…
“3.1 DESIGN CRITERIA
Item | Design Criteria |
External ambient conditions (for air conditioning plant full load performance) | Summer 33.1℃ dry bulb maximum |
24.8℃ wet bulb maximum | |
Winter | |
6.0℃ dry bulb maximum | |
Internal conditions (for conditioning plant full load performance) general | Summer 23℃ dry bulb maximum at point of control |
Winter | |
21.5℃ dry bulb at the point of control | |
Controls tolerance for air conditioning system | +/-2.0℃ dry bulb at point of control (+/- 1.0℃ dead band) |
Outside Air | In accordance with AS 1668.2 2013 requirements |
Exhaust Air | In accordance with AS 1668.2 2013 requirements |
Occupancy | Refer Table A. |
Hours of operation | Continuous |
Table A. Internal Loads
Area | People | Outside Air | Lighting Density W/m² | Power Density W/m² | Equip. KW |
Gym | 8 | 10L/s/p | 15 | 15 | |
Guest rooms | 2 | 25L/s/room | 15 | 5 | - |
General office areas | 1/10m2 | 10L/s/p | 15 | 10 | - |
FOH lounge | 1/3m2 | 10L/s/p | 15 | 10 | - |
FOH lobbies areas | 1/3.5m2 | 10L/s/p | 15 | 10 | - |
Building Construction Details | Refer to architectural drawings. |
Maximum External Noise Levels | To meet the Local Authority requirements nominated in the Development Application conditions and Wilkinson Murray Acoustic Report |
Maximum Vibration Levels | Tactile structure vibration levels due to plant not to exceed the lower end of the range specified in AS 2670.2. |
Equipment Balancing | AS 2625 for rotating and reciprocating machines |
…
3.4 ACCEPTANCE CRITERIA
“(b) Start Stop Control and Indication
(c) Temperature Control
Plaintiff’s contentions
“It is necessary, and entirely orthodox, to have regard to extrinsic evidence to answer [the question ‘what was that alternative proposal?’]. After examining the legal principles, the evidence is analysed, and the alternative proposal is identified as a two pipe VRF heat pump system.”
Use of extrinsic material
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.”
“Another exception to the parol evidence rule referred to by Mason J in Codelfa was extrinsic evidence which assists in the identification of the subject matter of the contract. At 349, his Honour cited with approval Lord Davey in Bank of New Zealand v Simpson[4] who in turn quoted with approval the remarks of Lord Campbell in Macdonald v Longbottom[5] as follows:
‘I am of opinion that, when there is a contract for the sale or [sic] a specific subject-matter, oral evidence may be received, for the purpose of shewing what that subject-matter was, of every fact within the knowledge of the parties before and at the time of the contract.’”
“Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”[6]
“Clause 1(u) does nothing to describe the alternative proposal, other than to refer to the fact that the alternative proposal exists. However, this clause does say, unambiguously, that the WUC which Built was obliged to perform included the installation of the alternative proposal. It is therefore critical that the alternative proposal be accurately identified in order for the Court to know what Built’s obligation to perform the WUC was with respect to the mechanical system.”
“Extrinsic evidence must be admitted in order to ascertain what the alternative proposal was. That is critical to understanding Built’s obligations, including assessing Built’s claim for a variation to the mechanical system”.[8]
“Considered objectively and leaving aside any express requirement to the contrary, the ‘performance requirement of the tender drawings and specification’ could not include a ‘performance requirement’ that the alternative proposal could never achieve, or was, in fact, not designed to achieve – imposing such a requirement would be fundamentally inconsistent with the alternative proposal being part of the agreed WUC. Accordingly, identifying the alternative proposal is a critical first step before considering what the performance requirement of the tender drawings and specification was”.[9]
Extrinsic evidence sought to be relied upon by the plaintiff
“Built in conjunction with our preferred subcontractors have reviewed the documented design criteria and have offered an alternative Air Conditioning system based on VRF type arrangement.
The system proposed provides a more efficient solution in terms of the running costs due to the equipment operates on a variable power supply and without the need for standalone controls and variable speed drives which inherently are costly and complex to program and operate. Additionally, the proposal also adopts a revised pipe and duct configuration, thus reducing the initial cost of these components.”
“7. Are the VRV systems proposed to be heat recovery type or reverse cycle type? If the former are they 3 pipe or 2 pipe type? If the latter is the placement of FCUs proposed to be consistent with the façade they are mounted on (similar thermal zone).”
“Our proposal utilises reverse cycle 2 pipe configuration. All FCU’s will be located as per original design and all condensers will be located on mechanical plant deck.”[14]
“… I note your other comments and they are OK with the exception of the ground floor AC systems. The location of any condensing units at low level would be a point of great concern for the architect …The meeting proposed is to dot the iiiis [sic.] over what is the actual scope of work of the mechanical services contract which you believe that you have signed up for … The hotel operator also has particular requirements which will need to be addressed …”[15]
“We have not been provided with a [sic] IHG Brief other than the Tender Drawings and specification, and as such this is all we have to work with in terms of criteria (despite the conforming being a Chilled Water System which is obviously different in many ways). The offer of a conforming and alternative were provided at Tender with the Client electing to adopt the alternative at a significantly reduced price.”[16]
“It was agreed that VRV is the solution for HIE, subject to the system being designed with belts and braces to ensure issues such as gas leakage are covered, as well as servicing.
JR noted that VRV can and has been used successfully up to 30 stories and can be used in mixed-use however the metering issue needs to be addressed.
JR will seek to meet with IHG in Singapore next week to outline the background to the proposal to use VRV as IHG have a preference for a traditional chilled water system.
GC [Glenn Collison] noted the savings in Spring Hill were in the order of $700,000 (in mechanical and structure).
The Ibis Adelaide has a VRV system and the Ibis Brisbane will have an [sic] VRV system.”[17]
“Please note that largely the IHG Standard and Thwaite design is based on Chilled Water therefore large sections of the design are not applicable hence we have not marked up the specification but rather commented separately.”
“… please find attached concept sketch & supporting brief description of the proposed mech systems.
Note there is only one (1) material change from the current mechanical design, which is VRF in lieu of chilled water.
Detailed summary of current proposal (for reference):
- 2-pipe heat pump VRF systems, zoned north/south over 2 floors each (total 12x systems + ground) …”
“Air conditioning for the building is proposed to be of the Variable Refrigerant Flow (VRF) type, in lieu of chilled water systems, with condensing units located on Level 1 podium and roof (refer attached sketches).
The VRF systems will be of the 2-pipe heat-pump type, and zoned such that areas with different solar loads are served by separate plant.
The above proposal is based on our understanding of the IHG Engineering Standards (Asia Pacific) Section 9 (Holiday Inn Express Supplement), generally as follows:
- Clause 9.2.1 nominates VRF as an option for air conditioning
- Clause 9.2.3 allows the use of 2-pipe systems, with electric re-heat in temperate climates only (Brisbane is sub-tropical climate).
In general, the remainder of the current building mechanical services design (documented by Thwaite Consulting Group) will not be altered in principle.”
“Grant
As discussed, we have received confirmation from the Principal to proceed with the mechanical design development in accordance with information summarised in the email below…”[21]
Performance requirement of the tender drawings and the Specification
“on the basis that the Contractor meets the performance requirement of the tender drawings and specifications”.
“Because Part O, clause 1(u) limits Built’s obligation to the performance requirement of the tender drawings and specification, the methods by which these systems achieve particular minimum and maximum temperatures is immaterial – what matters is whether the systems in fact achieve particular minimum and maximum temperatures because that is the performance requirement of the Thwaite specification.”
“In Built’s submission the ability of the air conditioning system to achieve particular temperature ranges was the relevant performance required by the Thwaite Specification … The fact that the Thwaite specification offered a different method of achieving that same performance cannot mean that the particular method adopted in that case (i.e. mode control to each individual guestroom) was the relevant performance requirement. The requirement was to achieve a particular temperature range. Guests using the alternative proposal would have … been able to achieve that range of temperatures. That a different method was to be utilised is of no relevance.”
“Design criteria presented herein form the basis for the design of the works and for any alternative proposals submitted”.
Defendant’s contentions
“Rather, what the parties did was the exact opposite. They chose to insert a ‘clarification’ in the Contract that specifically allocated the risk to Built that the alternative mechanical services system would meet the performance requirement of the Tender Drawings and Specification. There are two sophisticated commercial parties entering into a $32 million Contract for the design and construction of a hotel. This is how the parties chose to deal with any risk which existed in respect of this particular issue. The basis for this agreement of course is consistent with the entire understanding clause contained in clause 44.5 of the Contract …”[28]
“It provides that in exchange for a $33 million contract, it is Built who assumes the risk that the mechanical services system it designs and constructs will meet the performance requirements of the tender drawings and specifications.”[36]
“It is well established that parol evidence is admissible to identify the subject matter of a written contract. A recent example, which in some ways resembles the present, is Akot Pty Ltd v. Rathmines Investments Pty Ltd [1984] 1 Qd.R. 302. But in that instance, and in the decisions discussed in it, the written contract was, as regards subject matter, expressed in an uncertain or ambiguous fashion. Here there is no uncertainty or ambiguity in the contractual identification of the subject matter. The designation in the written contract of 29 August 1995 may have been the result of a mistake; but on its face it is perfectly plain. Parol evidence of pre-contractual statements is not needed in order to identify it from the description given in the written contract.”
“… the appellant submits that because of cl. 28.1 of the instrument of contract between the parties the respondent cannot refer to evidence outside the instrument to prove a prior oral contract or a continuing common intention of the parties to buy and sell a unit different from that identified in the contract in order to seek rectification of that instrument. The clause is in the following terms:
‘ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties as to its subject matter and supersedes and cancels all prior arrangements, understandings and negotiations in connection with it.’
The purpose of that clause, it seems to me, is to exclude any such evidence either to prove terms additional to or different from the written instrument or collateral contracts or to construe the instrument in a way different from the meaning to be inferred solely from its terms.”
Consideration
“The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.
Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption ‘that the parties … intended to produce a commercial result’. Put another way, a commercial contract should be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.
These observations are not intended to state any departure from the law as set out in Codelfa Construction Pty Ltd v State Rail Authority (NSW) and Electricity Generation Corporation v Woodside Energy Ltd.” (Footnotes omitted)
“His Honour did not say how such an ambiguity might be identified. His Honour’s reasons in Codelfa are directed to how an ambiguity might be resolved.”[46]
“The Contractor, in conjunction with its preferred subcontractors has reviewed the documented design criteria and has offered an alternative air conditioning system based on VRF type arrangement”.
“The respondents each having executed a[n] … agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it …
There are reasons why the law adopts this position. First, it accords with the ‘general test of objectivity [that] is of pervasive influence in the law of contract’. The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions …
Where parties enter into a written agreement, the Court will generally hold them to the obligations which they have assumed by that agreement. At least, it will do so unless relief is afforded by the operation of statute or some other legal or equitable principle applicable to the case …
It is a time to maintain those rules. They are not unbending. They allow for exceptions. But the exceptions must be proved according to established categories. The obligations of written agreements between parties cannot simply be ignored or brushed aside.”[54] (Footnotes omitted)
“[T]he idea that an arbitrator or a judge would be called upon to determine the true intention of the parties by going beyond the written contract to encompass anything which disputing parties can relevantly imagine, would be regarded by most parties, at the time of formation of the contract, to constitute a commercial disaster.”[57]
Construction of clause 1(u) Annexure Part O
“The approach taken to statutory construction is matched by that which is taken to contractual construction. Contractual construction depends on finding the meaning of the language of the contract – the intention which the parties expressed, not the subjective intentions which they may have had, but did not express. A contract means what a reasonable person having all the background knowledge of the ‘surrounding circumstances’ available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of “surrounding circumstances”.[59]
“[The clause] is to be read as a whole and given its ordinary meaning, in light of its context and purpose. It is not to be dissected into separate words or phrases, the meanings of which are then amalgamated into some composite meaning.”[61] (Footnotes omitted)
“Performance: ‘the way in which something reacts under certain conditions or fulfils the purpose for which it was intended’.
Requirement: ‘that which is required; a thing demanded or obligatory’.”
“The capabilities of a machine, esp. a motor vehicle or aircraft, measured under test.”
Mechanical Direction / Variation
JOINERY DELAY
BATHROOM DESIGN VARIATION (VP32)
“2. In respect of the alleged Bathroom Design Variation, whether [SOC [10], [11], [13]; DEF [11], [12], [13]; R [11], [12], [13], [14]] whether:
“(d) the plaintiff has complied with the notice provisions contained in clause 36.1 and clause 20.”
“In respect of the alleged Bathroom Design Variation, the price of the work performed by the plaintiff in carrying out the alleged Bathroom Design Variation [SOC [13]; Def [13]].”
“2. In respect of the alleged Bathroom Design Variation:
Alleged Direction
What was required to be built under the Contract?
“THESE DRAWINGS ARE TO BE READ IN CONJUNCTION WITH ARCHITECTURAL BASE DRAWINGS & RELEVANT CONSULTANT DRAWINGS.”[71]
“Note: Interior Design & Specialist lighting documentation included are for Holiday Inn Express Park but will be adopted for the Spring Hill Project.”
“It is noted that the ‘Interior Design – Joseph Pang Design Consultants documentation’ was provided for information and only forms part of the Contract where specifically and directly referred to within this Annexure Part O.”
“8.1 Discrepancies
When construing the Contract Documents the following rules of construction apply:
Where the Contractor considers that there is any ambiguity or discrepancy between the Contract Documents, it shall promptly advise the Superintendent in writing, who shall, subject to this subclause 8.1, give the Contractor a direction as to the interpretation to be followed.
Where the Principal or the Superintendent considers that there is any ambiguity or discrepancy between the Contract Documents, the Superintendent shall give the Contractor a direction as to the interpretation to be followed.
The Contractor shall have no entitlement as a consequence of a direction given by the Superintendent under this subclause 8.1 which is consistent with the rules of construction in this clause 8.1.”
“GUEST ROOM DESIGN STILL PENDING CLIENT APPROVAL AND REFER TO INTERIOR DESIGN FOR SETOUT DETAILS.”
Consideration
Was there a change in the work to be undertaken within the scope of clauses 36.1(a) to (e)? Was there a direction within clause 36.1(f) or does it amount to a direction to perform a variation pursuant to clause 36.1(g)?
“The Principal shall only be liable to the Contractor for the price of a variation calculated in accordance with subclause 36.4 or for an EOT for a variation where either:
“20 Superintendent
…
Except where the Contract otherwise provides, the Superintendent may give a direction orally but shall as soon as practicable confirm it in writing. If the Contractor in writing requests the Superintendent to confirm an oral direction, the Contractor shall not be bound to comply with the direction until the Superintendent does so.
If the Contractor considers that any direction given by the Superintendent is given in error or, although not stated to involve a variation, in fact involves a variation, the Contractor must, before complying with the direction (but in any event, not later than 5 business days after the direction) notify the Superintendent, in writing, of this.
If the Contractor does not give the notice to the Superintendent within the time specified, the Contractor shall have no entitlement in respect of the direction and any claims will be absolutely barred.”
“includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement.”
“Jim,
Are you in a position to fully endorse all JPDC documentation ‘for construction’?”
“With the exception of the recent changes to the great room and public amenities, which are still being priced I believe all other drawings issued should be ok. I would however need to defer to Amie pending list of outstanding items to be certain …”
“Can you please confirm if documents that have been issued are ‘for construction’ or are still on hold?”[92]
“Is there genuine confusion or are you trying to make a point that drawings to be priced shouldn’t be considered for construction?
Guestroom, signage and corridor drawings have been issued for construction and are not on hold …”
“Except as provided at law or in equity or elsewhere in the Contract, none of the terms of the Contract shall be varied, waived, discharged or released, except with the prior written consent of the parties.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.”
“… I think that what Rozelle’s agent told Mr Dean can fairly be regarded as a promise to pay for the work irrespective of the formal requirements of the contract, which encouraged Update to go ahead with the work without concerning itself with formal contractual requirements, the appropriate remedy for which would be to prevent Rozelle from relying on the lack of formal compliance … an estoppel arose in the present case when the conduct of Rozelle’s agent led Update (i) to suppose that the requirement of writing under cl 6(b) would not be enforced, and (ii) to act to its detriment by both not giving the written notice when it could still have done so, and doing the work; the estoppel being that Rozelle could not after those events rely on the writing requirement in cl 6(b).”[102]
THE SCHEDULE 3 AND 4 VARIATIONS
“In respect of the alleged Schedule 3 (Item 1 only) and Schedule 4 (excluding item 7) Variations, whether:
“In respect of the Schedule 3 and 4 Variations, the extent to which, if at all, the plaintiff is entitled to the sums identified in column D of Schedule 3 and column C of Schedule 4 to the amended statement of claim [SOC [17]; Def [17]].”
“3. In respect of the alleged Schedule 3 Variations:
Schedule 3 - VP38 – “Ceilings and partition alterations in the Great Room”
Schedule 3 - VP53 – “Back of House Corridor – second path of egress”
Schedule 3 – VP59 – “Admin and luggage change layout and joinery”
Schedule 3 – VP78 – “BWIC for boom gate”
Schedule 4 – VP58 – “BOH (back of house) ceiling”
Schedule 4 – VP60 – “Bathroom light switch – off master switch”
“36.2 Proposed variations
The Superintendent may give the Contractor written notice requesting the Contractor to submit a variation proposal for a proposed variation.
The Contractor shall provide the following information with the variation proposal in response to a notice given by the Superintendent pursuant to this subclause 36.2:
Upon receipt of a variation proposal provided in response to a notice given by the Superintendent pursuant to this subclause 36.2, the Superintendent may in the sole discretion of the Superintendent do any one of the following:
“Grant
I thought the instructions from yesterdays [sic] PCG discussion on this issue were unambiguous however for clarity purposes, [the] following is my understanding of the outcomes:
…
Built to issue an estimate of costs for the installation of a light switch to service the bathroom to Pro-Invest/Tactical to review and confirm instructions …”
“Grant,
Have you received any cost advice on the proposed bathroom light switch to enable Pro-Invest to review and confirm instructions?”
“Hello Sean,
Have had a day of reconciling all things Electrical and anticipate some variations as requested to flow tomorrow … I know you are keen to have these …
2. Bathroom light off master switch & other circuitry to mirrors etc etc
A further request for costs for the installation of a light switch to service the bathroom ie take the bathroom light off the master switch. Cost yet to be defined
Also combined with this additional circuitry to mirrors/mirror demisters etc …”[111]
“Chris
We will assess the variation.
The attached updated AFC drawings from Electro Light capture our requested changes and directions regarding switching to respective rooms for the Entry Panel, Bedhead Master Panel, Bathroom Panel. Please proceed in accordance with these as final AFC documents.”[117]
“Chris
Related to previous transmittal of Electro Light drawings, please proceed with these works in accordance with the attached Electro Light AFCs …
We will assess value and revert.”[118]
Schedule 4 – VP64 – “Clipsal colour switchplates as per JPDC finishes schedule”
“Accessories in guest rooms and public areas shall be to interior designer’s approval, currently nominated as Clipsal Slimline SC2000 range with custom colour face plates …”[122]
“Switch Covers only – SC2000 series
In addition to the standard range of covers, covers are also available in a range of decorative metal finishes.
Metal finishes available are: - Brushed Aluminium Cover …”[124]
“We are in continued negotiations with RDE on cost.
And in reality those negotiations are multiple fold across a number of items that I can list:-
…
“Presume you are flagging this as a potential variation.”[127]
“Please proceed with works under VP 64.
We will review submitted costs against requirements of the Contract and revert.”[130]
Schedule 4 – VP66 – “Desk lamp hard wired”
Schedule 4 – VP67 – “Supply and installation of power sockets and wiring for LED lighting”
“… As per previous discussions, meetings and correspondence there is now a requirement to run additional figure 8 cabling to the connection at the wall as the ‘hardwired remote driver’ does not reach the ceiling space and further to this is not capable of working as described.”[142]
Schedule 4 – VP73 – “Paint stair soffits/colour contrasting nosings”
“There is an ongoing discussion about what was included in the original schedule, but regardless of how that falls out, the untreated finish won’t be acceptable.
Given we are not painting the wall white, what application would you suggest here?”[149]
“As the rest of the stairs walls and floor are a plain concrete colour, I would suggest a paint finish in ‘Grey’.”[150]
“… regarding finishes to the fire stair, I would like to determine the scope of the paint and sealer to the fire stair flights.
Jim McBirnie has indicated to me that the risers should be painted to the fire stairs and that the external side of the stair stringer and the stair soffits should also be painted …
I am in the process of updating my internal finishes schedule, could you please confirm your understanding of the above.”[151]
Schedule 4 – VP76 – “Additional corridor lighting given flip of rooms”
Schedule 4 – VP114 – “Joinery – Damage to walls by separate contractors”
SCHEDULE 5 PROVISIONAL SUMS
“4. In respect of Item 3 of the alleged Schedule 5 provisional sums, whether:
“16. In respect of the Schedule 5 provisional sums, the extent to which, if at all, the plaintiff is entitled to the amounts identified in column D of Schedule 5 to the amended statement of claim [SOC [22]; Def [22]].”
“5. In respect of the alleged Schedule 5 provisional sums:
Provisional Sum No 2 – “Joinery to Greatroom”
Provisional Sum No 6 – “Landscaping, irrigation and paving including design, supply & installation of streetscape trees, grates, kerbing and public artwork”
Provisional Sum No 8 – “Make good of the Council footpath to Wharf and Henry Streets”
“3 Provisional sums
A provisional sum included in the Contract shall not itself be payable by the Principal but where pursuant to a direction the work or item to which the provisional sum relates is carried out or supplied by the Contractor, the work or item shall be priced by the Superintendent, and the difference shall be added to or deducted from the contract sum without any allowance for profits or overheads.
Where any part of such work or item is carried out or supplied by a subcontractor, the Superintendent shall allow the amount payable by the Contractor to the subcontractor for the work or item, disregarding:
If the amount the Principal is required to pay the Contractor pursuant to this clause 2.10 exceeds the total amount of all provisional sums included in the Contract, the Principal must also pay the Contractor an additional amount for profit and attendance calculated as the percentage stated in Item 13 or elsewhere in the Contract of the provisional sum excess amount.
The parties acknowledge the contract sum includes an amount for overheads, profit and attendance for all provisional sums included in the Contract.”
“includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement.”
“The Contractor shall carry out and complete WUC in accordance with the Contract and directions authorised by the Contract.
Subject to the express provisions of the Contract and the performance by the Contractor of its obligations pursuant to the Contract, the Principal shall pay the Contractor the contract sum adjusted by any additions or deductions made pursuant to the Contract.”
“Pursuant to clause 3 and Part P of the general conditions of contract we hereby submit the following submission of cost adjustments justified and calculated against the Provisional Sum allowances of $10,000.00 to make good of the Council Footpath to Wharf & Henry St.
Scope of works is defined by the attached drawings and back to back head contract / DA & other authority obligations as presented in the attached BOQ.
Expiry period for acceptance is 28/10/2016.”[158]
“Make good of the Council Footpath to Wharf & Henry Streets.”
PRICING OF VARIATIONS SCHEDULE 6 - PRELIMINARIES
“5. In respect of the Schedule 6 Variations, whether, if priced pursuant to clause 36.4 of the Contract, the plaintiff is entitled to payment for an additional 7.5% for preliminaries [SOC [25]; Def [25]].”
“17. In respect of the Schedule 6 Variations, the extent to which, if at all, the plaintiff is entitled to the amounts identified in column D of Schedule 6 to the amended statement of claim [SOC [26]; Def [25]].”
“6. In respect of the alleged Schedule 6 variations:
OTHER CLAIMS BY PLAINTIFF
“19. The extent to which, if any, the defendant was entitled to deduct, from amounts owing to the plaintiff, amounts for:
“8. In respect of the Security Bond, that the plaintiff paid to the defendant the amount of $834,150.68 on 9 May 2019 in exchange for the Bond being cancelled [SOC [57I][57J]; Def [35I][35J]].”
COUNTERCLAIM – ALLEGED NON-MECHANICAL DEFECTS
“9. Whether the works set out in Annexure 4 (items 1 and 4) and Annexure 6 to the counterclaim are defective works in the ways described therein [Def [38]; R [41]].
“In respect of the counterclaim, the works set out in items 2 and 3 of annexure 4 to the third amended defence and counterclaim are defective in the ways set out therein.”
“22. The cost to the defendant, if any, to rectify any defective works in Annexure 4 and Annexure 6 to the counterclaim, and to engage consultants to inspect and advise on non-compliant defective works and manage rectification of non-compliant defective works [Def [42], [43]; R [41(bc)]].”
Defect Item One – “Crack in the basement level 2 slab”
“Description of work required: The crack in the basement level 2 slab needs to be rectified so that water cannot enter through the crack.
Description of defects: Basement 2 has a large crack in the slab near the B2 Maintenance Room. Water is coming up through the crack into the car park.”[168]
“Water tends to follow a path of least resistance, in this case, the path of least resistance is now the crack in the slab on ground.”[170]
“The sawn joint installed was insufficient to transfer vertical load, created by constant vehicle traffic, across the slab joint to minimise differential deflection, resulting in a significant crack forming in the basement 2 slab and providing a path of least resistance for water to penetrate and enter the building.”[171]
Defect Item Two – “The electrical penetration running through the mechanical services slab needs to be adequately sealed and protected”
Defect Item Three – “The storm water pipes, and each penetration through which they run, need to be adequately sealed and waterproofed”
Defect Item Four – “The concrete structure around the basement staircase and communications hub wall needs to be adequately waterproofed”
COUNTERCLAIM – ALLEGED MECHANICAL SERVICES SYSTEM DEFECTS
Defect 1.1 – “Duct bends & detail design”
Defect 2.1 – “Air conditioning – simultaneous heating and cooling”
“2.2.5 FOH GF AIR CONDITIONING AHU-PN, AHU-PW + AHU-C
…
2.2.6 BOH GF AIR CONDITIONING FCU-GC, FCUGW, FCU-GN
…
2.2.7 MEETING ROOMS GF AIR CONDITIONING FCU-M1 + FCU-M2
…
2.2.8 KITCHEN GF AIR CONDITIONING FCU-K
…
Defect 2.2 – “Air conditioner – air commissioning”
Defect 2.3 – “Substation air intake”
“The substation outside air intake is installed in the loading dock behind the roller door.
The substation outside air intake is not connected to an outside air grille, leading to intake of pollutants from trucks in the loading dock.”[214]
“… none of this is good practice, in my opinion … We shouldn’t have been drawing air from the garbage room through the loading dock. We shouldn’t be taking outside air from the loading dock to go into the substation. Neither of those outcomes is good practice, nor do I believe that they actually comply with the design criteria. Both the Thwaite design and the design – if this red thing is what’s installed on site, that too is not compliant … I don’t think you can say that the loading dock is an acceptable source of air quality.”[215]
Defect 2.4 – “Office – carpark ventilation noise”
“The back of house office is located above the carpark exhaust fan location and the carpark exhaust duct passes over the office in the ceiling space. Excessive noise is experienced in the office when the carpark exhaust fans are run at maximum speed.
Attenuators have been installed in an attempt to rectify previously notified defects, however excessive noise is still experienced in the office area at times when the fans run at maximum speed”.[217]
Defect 4.2 – “Guest room & maids room exhausts”
“The walls and ceilings should be removed to gain access to toilet exhaust riser … Toilet exhaust riser ducts should be inspected internally to assist in identifying leakage paths and check cleanliness. Any debris present should be removed. Toilet exhaust riser ducts should be sealed to reduce leakage … The air systems should be re-balanced, adjustments made to the heat exchange units and test figures submitted … The walls and ceilings should be re-instated …”[232]
Defect 4.3 – “Level 1 to 12 outside air supply”
Defect 4.4 – “Guest room toilet exhaust risers – fire rating”
Defect 4.5 – “Guest room fan coil unit – interface with occupancy controls”
“The interface with the energy management (Vintech) system has the ability to turn the guestroom fan coil units off, but does not have the ability to turn them on, contrary to this specified requirements.”
“The guest rooms shall have standalone electronic controls to operate each FCU serving the room and shall be interfaced with the guest room energy management system (turns FCU ON-OFF)”.
Defect 4.6 – “Guest floor lift lobbies – moisture damage to ceilings and dripping air conditioning grills”
Defect 5.1 – “HX-1, HX-2 filter installation”
Defect 5.2 – “Roof mounted duct work – water pooling”
“All duct work on the roof shall be internal acoustic type and cross broken so that no water is able to accumulate on the flat surfaces. All flanged joints and the flexible discharge joints shall be covered in sheet metal to stop water pooling and to provide UV protection.”
Defect 5.3 – “Insulation on roof duct work”
Defect 5.4 – “HX-1, HX-2 condensation traps omitted”
Defect 5.5 – “Water in HX-1 isolating switch”
Defect 5.6 – “HX-1, HX-2 filter gauges defective”
Defect 5.7 – “HX-2 – water pooling in outside air duct”
“Water was observed pooling in the HX-2 outside air intake duct, to a depth of about 20mm. This indicates that rainwater is making its way into the duct.
The presence of rainwater in the duct will lead to increased humidity in the air intake, exasperating problems with excess moisture in the corridors ...”[270]
Defect 6.1 – “As installed drawings (O&M manuals)”
“The Levels 1-12 typical floor drawing … does not show the correct location and configuration of the toilet exhaust fire dampers, toilet exhaust grilles, outside air ducts to guestrooms.
Similarly, the Roof drawing … shows the incorrect location of HX-1, does not show extended air intake ducts to HX-1 and HX-2, and does not show installed configuration of KEF-1, SPF1A and SPF 1B”.[274]
Defect 6.2 – “O&M manual content”
“Ten days of work. It’s … an allowance. I mean, it is … future work as opposed to [a valuation] of works being carried out. It was an allowance of 10 days which was an allowance I thought was reasonable of two weeks for carrying out any … necessary testing to get the results that are required to include in the O and M manual. And then completion of the O and M manuals themselves.”[280]
DEFENDANT’S CLAIM FOR ADDITIONAL LIQUIDATED DAMAGES
“23. The extent to which, if any, the defendant is entitled to further amounts for liquidated damages [Def [51]; R [41(bi)]].”
“7. In respect of liquidated damages, that the Date of Practical Completion certified by the Superintendent was 3 March 2017 [SOC [42]; Def [29]].”
“At any time and from time to time, the Superintendent may by a further progress certificate correct any error which has been discovered in any previous progress certificate.”
“Our certification of liquidated damages issued on 9 March 2017 applied a 5 day working week to the calculation of liquidated damages. We are now aware that this was issued in error and that a 6 day working week applies.
…
A total of 44.5 business days were approved as at 6 October 2016. Applying a 5 day working week, the date for practical completion was calculated as 10 November 2016. Correctly applying a 6 day working week, an additional approved EOT falls on each consecutive Saturday such that the adjusted date for practical completion was 27 October 2016.”[299]
“If WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, liquidated damages in Item 29 for every day after the date for practical completion to and including the earliest of the date of practical completion … ”
INTEREST
penalty rate means—
“Interest in Item 35 shall be due and payable after the date of default in payment.”
NEXT STEPS
ANNEXURE A – MECHANICAL VARIATION, COSTS, DELAY, EXTENSION OF TIME AND LIQUIDATED DAMAGES
Plaintiff’s claim for costs of carrying out the Mechanical Variation
“6. In respect of the alleged Mechanical Delay:
…”
“(c) whether the plaintiff’s extension of time claim dated 28 October 2016 or otherwise complied with the requirements in clause 34.3 of the Contract [SOC [29]; Def [26(c)]; R [28(c)]]”.
“13. In respect of the alleged Mechanical Variation [SOC [9]; Def [10]]:
…
“36.1 Directing variations
The Contractor shall not vary WUC except as directed in writing.
The Superintendent, before the date of practical completion, may direct the Contractor to vary WUC by any one or more of the following which is nevertheless of a character and extent contemplated by, and capable of being carried out under, the provisions of the Contract (including being within the warranties in subclause 2.2):
The Principal shall only be liable to the Contractor for the price of a variation calculated in accordance with subclause 36.4 or for an EOT for a variation where either:
…
36.4 Pricing
The Superintendent shall, as soon as possible, price each variation using the following order of precedence:
and any deductions shall include an amount equivalent to the percentage set out in Item 32B for profit but not overheads,
That price shall be added to or deducted from the contract sum.”
Costs of the variation
Credit – contract works not required or incorporated due to Mechanical Variation
Additional works – three-pipe mechanical system
Demolition
Reinstatement works
Ceilings and partitions reinstatement
Tiling reinstatement
Electrical reinstatement
Fire ratings reinstatement
Hydraulics reinstatement
BWIC
Item 128 – “Core holes – 200mm through to 210mm post tension slab"
Item 127 – “Core holes – 200mm through to 700mm post tension slab”
Item 132 – “Road closure for craneage”
Item 129 – “Craneage to lift plant to roof”
Item 130 – “Mobilisation and de-mobilisation”
Item 131 – “Traffic control during crane days”
Item 126 – “X-ray scanning core holes”
Summary
Item | Amount |
Credit – contract works not required or incorporated due to Mechanical Variation | -$202,015.73 |
Additional Works - Three-Pipe Mechanical System - upgrading current pipework, FCUs, Condensers, Heat Exchange Units, Electrical and Duct Work and BWIC | $911,360.78 |
Demolition | $4,879.50 |
Ceilings and Partitions (reinstatement work) | $4,806.96 |
Tiling (reinstatement work) | NIL |
Electrical | $2,075 |
Fire | $883.81 |
Hydraulics | $1,104.76 |
BWIC | [TBA] |
Consultants (agreed between experts) | $4,500.00 |
Builders Profit & Overheads on Deductions (2%) | [TBA] |
Builders Profit & Overheads on Additions (10%) | [TBA] |
Total | [TBA] |
Delay and the Mechanical Variation
Is the plaintiff entitled to an extension of time due to the Mechanical Variation?
“34.1 Progress
The Contractor shall ensure that WUC reaches practical completion by the date for practical completion.
34.2 Notice of delay
A party becoming aware of anything which will probably cause delay to WUC shall promptly give the Superintendent and the other party written notice of that cause and the estimated delay.
34.3 Claim
The Contractor shall be entitled to such EOT for carrying out WUC (including reaching practical completion) as the Superintendent assesses, if:
If further delay results from a qualifying cause of delay evidenced in a claim under paragraph (b) of this subclause, the Contractor shall claim an EOT for such delay by promptly giving the Superintendent a written claim evidencing the facts of that delay.
…
34.5 Extension of time
Within 14 days after receiving the Contractor’s claim for an EOT, the Superintendent shall give to the Contractor and the Principal a written direction evidencing the EOT so assessed. If the Superintendent does not do so, there shall be a deemed assessment and direction for an EOT as claimed.
Notwithstanding that the Contractor is not entitled to or has not claimed an EOT, the Superintendent may at any time and from time to time before issuing the final certificate direct an EOT. The Superintendent is under no obligation to exercise this discretion reasonably, fairly or for the benefit of the Contractor.
…
34.7 Liquidated damages
If WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, liquidated damages in Item 29 for every day after the date for practical completion to and including the earliest of the date of practical completion or termination of the Contract or the Principal taking WUC out of the hands of the Contractor.
If an EOT is directed after the Contractor has paid or the Principal has set off liquidated damages, the Principal shall forthwith repay to the Contractor such of those liquidated damages as represent the days the subject of the EOT.
The Contractor acknowledges that the liquidated damages provided for in this subclause are a genuine pre-estimate of the Principal’s loss and not a penalty.
If Item 29 is not completed or completed by words which indicate that liquidated damages shall not apply to the Contract (whether by the use of the words ‘nil’, ‘not applicable’ or otherwise), the Contractor shall indemnify the Principal for any loss, damage, cost or expense suffered or incurred by the Principal by reason of the Contractor’s delay in the execution of WUC including the Contractor’s failure to bring WUC to practical completion by the date for practical completion.
If the liquidated damages provide for in this subclause 34.7 are found to be unenforceable for any reason, the Contractor shall indemnify the Principal for any loss, damage, cost or expense suffered or incurred by the Principal by reason of the Contractor’s delay in the execution of WUC including the Contractor’s failure to bring WUC to practical completion by the date for practical completion.
…
34.9 Delay damages
For every day the subject of an EOT for a compensable cause, the Contractor shall be entitled to give the Superintendent a claim for delay damages reasonably and necessarily incurred by the Contractor by reason of that compensable cause. The Principal must pay the amount of the delay damages certified by the Superintendent pursuant to this subclause 34.9.
The maximum amount payable by the Principal to the Contractor for every day the subject of an EOT for a compensable cause is the actual cost incurred by the Contractor up to the maximum specified in Item 31A.
Nothing in this subclause 34.9 shall oblige the Principal to pay delay damages for:
The amount payable by the Principal to the Contractor under this subclause 34.9 is the agreed damages payable by the Principal to the Contractor and is in full satisfaction of all claims which the Contractor may make or bring against the Principal arising in connection with all and any delay or disruption however caused or encountered by the Contractor in the execution of WUC.
…”
“So you were, I take it, anticipating that – or you were asking for, and you really wanted a direction? – We were asking for clarity, yes.”[346]
“Thank you. Can I take you to paragraph 272 of your statement:
Later on 11 August Built received from Tactical attaching a notice which was said to be a notice to rectify defective work pursuant to clause 29.3.
Do you see that?---Yes.
Now, I’ve taken you through your statement. On multiple occasions, you had been saying, ‘You’ve got to give us a direction’. You agree with that proposition?---Yes.
And on the 11th and on the 5th of August you said, ‘We need a direction by the 11th of August’?---Correct.
And you were waiting on the 11th of August for the direction?---Yes.”[356]
“Did you think it was important to circulate this notice quickly, or was that not of particular importance to you?---Yes, I dare say – it’s 7 – around that time would’ve been the first time I would’ve been able to get to my computer the following morning.
When you saw – I think you said you saw the mechanical direction the previous night. I think that was your evidence?---Yes.
So you would’ve been at your computer at that point?---No, most likely on my phone or from – from home. Not on my computer.
I see. So is it the case that you don’t think you were actually at work when you first saw that mechanical direction?---I believe so, yes.
I think you gave some evidence yesterday that I think you discussed it with Mr Meredith [sic] on the evening of the 11th of August; do you recall that?---I do recall that, yes.
Can you explain, if you weren’t at work, how did you discuss it with Mr Meredith?---A phone call or a text message.”[367]
“How do you want to proceed with the attached?
Let me know if we need to make a meeting or if you wish to discuss anything.”
“See, I then asked you:
Okay. So you were in the office. You recall being in the office when you received this?
And you answered:
The site office, yes.
I asked for your actual recollection, and you gave it. That was the truth when you gave that evidence, wasn’t it?---Yes.
You were at the site office?---I can’t recall exactly where I was, but – yes. That’s what I said. Yes.
Well, you volunteered to me in the prior answer that you were in the office and that’s why you would’ve thought Mr Meredith [sic] would’ve been there with you. You see, I didn’t ask – suggest to you you were in the office. You volunteered it; correct?---Correct.
And I asked you – I wanted to make sure that I understood your question, so I asked for your actual recollection:
You recall being in the office when you received this?
And your answer was:
The site office, yes.
That is your recollection, isn’t it?---Yes.
…
I’m not reading from the transcript now, but I’m – you’ve given your recollection that you were in the site office and you’ve confirmed that you were; correct?---Yes.
What I’m suggesting to you is that you have a recollection that Mr Meredith [sic] was also in the site office at the time the 11th August 2016 notice was received?---That could be it, yes.
Now, yesterday I think it’s fair – I did ask you questions whether you recalled showing him the document and - - -
HER HONOUR: Is that Mr Meredith [sic] you’re referring to, Mr - - -
MR SULLIVAN: Yes. I’ll read out that question. And I said:
And you spoke to Mr Meredith [sic]. I take it he was present with you. Do you recall speaking to him about it?---I can’t recall. I can’t recall.
So you gave evidence you didn’t have a positive recollection, but then you said – I said:
It’s inevitable that you would have spoken to him about it, isn’t it?
And your answer was, “Yes”?---Correct.
You stand by that evidence?---Yes.
Thank you. And then I said:
And it’s inevitable you would have shown him the document as well, wouldn’t you?
And your answer was:
If he didn’t receive it himself, yes.
Do you stand by that evidence?---Yes.
And it’s – can I suggest to you it’s the case it is inevitable that if he didn’t receive it independently, that you would have shown him that document on that occasion on the evening of 11 August 2016?---Yes.
Okay. Why? Why then did you change your evidence today about being at home?---It was just based on the time of the 11th. It was an assumption that at that time I would typically be at home.
Right. Even though you accept now you’ve got a positive recollection of being at the office?---I do, yeah.”
“The contract called for practical completion by particular dates subject to extensions of time. Any extension of time was for specified cause, cause which had to be beyond the control of ACT, and for a period equal to the delay to ACT. The time by which the date for practical completion should be extended was to be determined by ADC, and it was therefore necessary that ADC be in a position rationally to assess the existence of a cause of delay, whether it was a cause of delay of one of the specified kinds, whether it was beyond the control of ACT, and what the extent of the delay to ACT was. Imposing the notification requirement upon ACT was a deliberate and important part of the mechanism for determining the time by which the date for practical completion should be extended. It was in mandatory terms ("shall notify") equivalent to the mandatory terms imposed on ADC ("shall determine the time") …
In my opinion, therefore, in the absence of timely notification as required by article 4.4.1 ACT was not entitled to extension of the date for practical completion.”
“Let me look at cl 31(b). It begins by speaking of circumstances in which the parties contemplate that the appellant might want an extension of time within which to complete work. The parties when negotiating the contract, knowing the exigencies of the trade, agreed that some such circumstances might arise. What should be done about it? They answered this question by saying that the notice should be given by the appellant to the respondent, by subcontractor to contractor. They decided something about the time within which notice should be given. What did they decide? They decided that it should be given within fourteen days after the cause of delay arose. They knew the exigencies of the trade. They knew what practical questions or issues would arise when notice was given. They knew when it was best for the notice to be given. They fixed on that fourteen day period. And they meant the clause which emerged from these deliberations to be effective within its terms. That is to say they meant what cl 31(b) says to be the position. They meant to bind themselves to it.”
Delay analysis methodology
“[643] … [The prospective approach] methodology involved him undertaking the following steps:
[645] … [The retrospective or the “as-planned” v ‘as-built”] methodology …:
“The Contractor shall be entitled to such EOT for carrying out WUC (including reaching practical completion) as the Superintendent assesses, if:
… ” (emphasis added)
“[657] The issue is whether the Contract permits both a prospective and retrospective delay analysis. WICET submits that Mr King’s retrospective delay analysis in respect of Delay Event 9 using an ‘as planned’ v ‘as built’ analysis is not permitted by clause 35.5 of the Contract.
[658] In my opinion the better view is that the Contract permits both a prospective and retrospective delay analysis.
[659] Paragraph 3 of clause 35.5 provides that:
‘If the Contractor is or will be delayed in reaching Practical Completion … and within 28 days after the delay occurs the Contractor gives the Principal’s Representative a written claim … the Contractor shall be entitled to an extension of time for Practical Completion.’
Clause 35.5 further provides:
‘The Contractor will only be entitled to an extension of time for Practical Completion pursuant to this Clause if –
[660] The use of the disjunctive ‘or’ gives the Contractor a choice to demonstrate that either it has been actually delayed or it will be actually delayed in achieving Practical Completion. The past tense “has been” as CMC submits, contemplates looking backwards, after the delay event has expired, to demonstrate that (with knowledge of hindsight) the Contractor has actually been delayed in achieving Practical Completion. CMC further submits that the retrospective approach is particularly appropriate if the activity delayed occurs towards the end of the project, such that the time at which the claim for the extension comes to be assessed is after Practical Completion has been achieved.
…
[662] … The use of the words ‘has been … actually delayed’ addresses past delay permitting or indeed inviting retrospective analysis. A Contractor would be entitled to an extension of time for Practical Completion if it demonstrates either a past or future delay. Further as CMC correctly submits, WICET’s construction does not give the word ‘actually’ any work to do.”
“If the Contractor is entitled to an extension of time for Practical Completion the Principal’s Representative shall, within 28 days after receipt of the notice of the number of days extension claimed, grant a reasonable extension of time. If within the 28 days the Principal’s Representative does not grant the full extension of time claimed, the Principal’s Representative shall before the expiration of the 28 days give the Contractor notice in writing of the reason.”[399]
Reasonable steps to mitigate delay
“Pursuant to Clause 29.3 of the Contract and as discussed / requested in PCG Meeting No.13, we have not received information to support the Contractor’s claim that the 2 pipe mechanical system complies with the Contract. The Superintendent considers any responses to date provided Without Prejudice (as attached) as completely insufficient.
…Should sufficient information not be received within 5 days, and Pursuant to Clause 29.3(c), the Superintendent will require the Contractor to takes all steps to replace and reconstruct the mechanical system in accordance with the Contract.
Key Issues for Contractor Response:
…
Contribution to cause of delay
“8.3 Contractor-supplied documents
The Contractor shall submit the proposed design documents to the Superintendent within the time periods specified in Item 17 and, in any event, not later than 20 business days before the Contractor proposes to issue those design documents for construction.”
“8.8 Shop Drawings
The Contractor shall prepare shop drawings as part of the design documents which shall:
….
…
“On the basis that mechanical services are being roughed in to numerous levels, workshop drawings should be readily available and it would be appreciated if you could arrange for them to be issued for our review as a matter of urgency”.[429]
“… The making of a Jones v Dunkel inference depends upon the closeness of the relationship of the absent witness with the party who did not call him.”
Christmas shutdown
Claim for EOT
“(a) First, Mr Bell identifies the program statused immediately prior to the delay event. Mr Bell then reviews that program to ensure that it is reasonable to be used and, if not, make necessary corrections to the program (this is referred to as the Baseline Program). This Baseline Program is then used to determine the forecast date of practical completion prior to the delay event;
“Why look in the crystal ball when you can read the book?”[467]
“(a) the original approved construction program set out in Annexure Part F; and
“(b)The approved construction program will be used by the Contractor and the Superintendent to:
…
…
If the revised approved construction program is approved by the Superintendent, the Contractor must submit to the Superintendent the approved construction program in the format described in subclause 33(c) indicating the date of the program within 5 business days of the approval by the Superintendent …” (emphasis added)
“7. Incremental review of EOT
Where the full effect of an Employer Risk Event cannot be predicted with certainty at the time of initial assessment by the CA, the CA should grant an EOT for the then predictable effect. The EOT should be considered by the CA at intervals as the actual impact of the Employer Risk Event unfolds …”[469]
“Unless the omission to be impacted is of short duration, say less than four weeks long, it will rarely be appropriate for the duration of the omission to be impacted in full from its commencement. For omissions, or failures to perform lasting longer than four weeks, a ‘windows’ approach to its impacting should normally be adopted.”[470]
“Inserting fragnets [activities] with excessive durations (spanning several updating cycles) will effectively override progress achieved during that entire period and will not allow the base programme to account for any delays due to concurrent events, lack of progress or logic changes implemented in the relevant monthly updates. This might prevent potentially critical delay events from emerging as critical until the conclusion of the fragnet. Every attempt should be made to make the fragnets as discrete as possible so the impact of each event can be limited to the period of time being analysed. Breaking events into bite-sized chunks for analysis is one of the reasons the TIA [time impact analysis] approach is known as being labour intensive and technically complex. The longer the fragnet, and the longer the duration between each base programme, the more prospective and theoretical the results will be.
If the TIA is used prospectively, the analysis will produce ‘likely effects’ of delays. If the fragnets are as discrete as possible, limited to durations less than a single updating cycle (i.e. 30 days), and if those fragnets rely on actual durations, the results are going to be closer to the actual effect of delay experienced and mitigated from progress update to progress update.”[471]
Delay Damages
“For every day the subject of an EOT for a compensable cause, the Contractor shall be entitled to give the Superintendent a claim for delay damages reasonably and necessarily incurred by the Contractor by reason of that compensable cause. The Principal must pay the amount of the delay damages certified by the Superintendent pursuant to this subclause 34.9.
The maximum amount payable by the Principal to the Contractor for every day the subject of an EOT for a compensable cause is the actual cost incurred by the Contractor up to the maximum specified in Item 31A.
Nothing in this subclause 34.9 shall oblige the Principal to pay delay damages for:
The amount payable by the Principal to the Contractor under this subclause 34.9 is the agreed damages payable by the Principal to the Contractor and is in full satisfaction of all claims which the Contractor may make or bring against the Principal arising in connection with all and any delay or disruption however caused or encountered by the Contractor in the execution of WUC.” (emphasis added)
“Maximum amount of delay costs (clause 34.9)
$$13,148.00 per day excluding profit and overheads”. (emphasis added)
“The Plaintiff’s claim for delay damages does not include any actual costs for time related site overheads which were reasonably and necessarily incurred by reason of the alleged Mechanical Direction”.
“In the premises of the matters pleaded in paragraph 27.f.ii.1.a the Defendant, pursuant to clause 34.9 of the Contract is not obliged to pay to the Plaintiff any additional delay damages for its site overheads;
Particulars
A. Section 6.2.42 to 6.2.46 of the Expert Report of David Hardiman dated 5 April 2019.”
“reasonable rates or prices, which shall include an amount equivalent to the percentage set out in Item 32A for profit and overheads”.
10% of the cost of the work comprising the variation.”
2% of the cost of the work comprising the variation”.
“(a) prior agreement;
“(b) a detailed breakdown of the price for which the Contractor would carry out the proposed variation, including any delay or disruption costs which may be incurred by the Contractor as a consequence of the proposed variation”.
“…
“The Principal shall not be liable to the Contractor for consequential or indirect loss whether arising out of or in connection with the Contract, under statute, in tort (for negligence or otherwise) or any other basis in law or equity.”
“means any loss of income, loss of revenue, loss of profit, loss of financial opportunity, loss of business or loss of business opportunity, loss of contract, loss of goodwill, loss of use, loss of production or failure to realise anticipated savings (whether the loss is direct or indirect)”.
“Built’s claim for offsite overheads is for costs incurred to run its business, but these costs are not costs directly chargeable to this project?---That’s – that’s a fair assessment, yes.
Do you agree that in the abstract some offsite overheads may be dedicated overheads, that is, head office overheads dedicated to supporting onsite resources in a particular project?---They could be.
But you haven’t identified any dedicated offsite overheads in this case?---No. I haven’t given any detail of what the overhead costs are comprised of.
Now, have you identified any dedicated offsite heads that increased as a result of a mechanical direction?---No.
…
I understand what you’re saying, but these are costs that would have been incurred, in any event, regardless of the project?---I don’t know that.
Well, you don’t know otherwise, do you?---No, I don’t.
And you cannot – there’s no basis, or nobody’s provided you any basis to suggest that these are dedicated offsite overhead costs?---I – I have not got any information about whether they would be described in that particular fashion in the way that Mr Gemmell does.
Okay. See, what I’m going to suggest to you is, in the absence of that evidence, you can’t say, one way or the other, anything other than that the head office had costs in running its business?---That – that’s probably a fair assumption. Yes.
And you haven’t got any basis – you don’t have any – sorry – you don’t have any basis to suggest that those costs would have been incurred in any event, regardless of the mechanical direction?---I don’t have any insight into what the basis of the incurring of those costs was.”
Liquidated damages
[1]BUI.001.001.61820.
[2]BUI.001.002.34972.
[3](1982) 149 CLR 337 at 352.
[4][1900] AC 182 at 188–9.
[5](1859) 1 E & E 977 at 983, 120 ER at 1179.
[6]At 352.
[7]Plaintiff’s written closing submissions at [26].
[8]Plaintiff’s written closing submissions at [35].
[9]Plaintiff’s written closing submissions at [36].
[10]PRO.020.001.2336.
[11]PRO.020.001.2336.
[12]BUI.001.002.27678.
[13]BUI.001.004.23878.
[14]BUI.100.002.6309.
[15]BUI.001.004.23883.
[16]BUI.100.002.6329.
[17]PRO.020.001.0070.
[18]BUI.001.002.27682.
[19]BUI.001.002.27682.
[20]BUI.001.002.27683.
[21]BUI.001.002.18824.
[22]Plaintiff’s written closing submissions at [79].
[23]BUI.001.002.27681.
[24]EXP.001.001.0012.
[25]T15-5, L27; T15-5, L42-43.
[26]T15-69, L34-37.
[27]Plaintiff’s written closing submissions at [112].
[28]Defendant’s written closing submissions at [25].
[29]Defendant’s written reply submissions at [7].
[30]Defendant’s written reply submissions at [10].
[31]Defendant’s written reply submissions at [11]-[12].
[32]Defendant’s written reply submissions at [13].
[33]Defendant’s written reply submissions at [16]-[18].
[34]Defendant’s written reply submissions at [19].
[35]Defendant’s written reply submissions at [20].
[36]Defendant’s written reply submissions at [20].
[37]Defendant’s written reply submissions at [25].
[38]T14-11, L15-T14-12, L5.
[39]T14-12, L7-26.
[40]T15-66, L37-T15-67, L18.
[41][1999] 2 Qd R 152 (McPherson and Davies JJA and Moynihan J).
[42]At 154.
[43]At 156.
[44](2015) 256 CLR 104.
[45]At 116-7 [46]-[52].
[46]At 132 [110].
[47](2011) 86 ALJR 1 at 2 [2].
[48]At 132 [111].
[49]At 117 [52].
[50]At 133 [113].
[51][2019] QSC 163.
[52]At [62].
[53](2004) 218 CLR 471 at 483 [33].
[54]At 483-4 [33]–[35].
[55]Hon JJ Spigelman AC, “Contractual Interpretation: A comparative perspective” (2011) 85 ALJ 412.
[56]Hon JJ Spigelman AC, “Contractual Interpretation: A comparative perspective” (2011) ALJ 412 at 429.
[57]Ibid.
[58](2011) 243 CLR 253.
[59]At 284 [98].
[60][2021] HCA 3.
[61]At [54].
[62]Subject to one revision with the Roof Level Plan issued as series “A”, rather than “Rev.01”.
[63]See for example EXP.001.001.0012 at p 0033 [12.1].
[64]Plaintiff’s written closing submissions at [485]-[489].
[65]Defendant’s written closing submissions at [315]-[316].
[66]PRO.001.008.0919.
[67]PRO.025.001.2813.
[68]PRO.025.001.2978.
[69]BUI.001.002.07647.
[70]PRO.020.001.2058.
[71]PRO.020.001.2058.
[72]PRO.020.001.2557.
[73]PRO.017.001.2122.
[74]WIT.001.001.0224 at p 0238 [84]-[90]; PRO.020.001.2555; PRO.020.001.2556.
[75]PRO.020.001.1559 at p 0011; T1-69, L7-11.
[76]T5-58, L10.
[77]This would equally apply to work that was removed from the scope and to additional work that was added.
[78]BUI.001.001.69541.
[79]BUI.001.001.58481; BUI.001.001.58506; BUI.001.001.58508; BUI.001.001.58523; BUI.001.001.58524; BUI.001.001.58525.
[80]BUI.001.001.58481.
[81]WIT.001.004.001 Witness statement of Thomas Cook dated 31 August 2018 at p 0075 [439].
[82]BUI.001.001.58481.
[83]BUI.001.001.58523.
[84]BUI.001.001.58524.
[85]BUI.001.001.58508.
[86]BUI.001.001.58524.
[87]See also WIT.001.004.0001 Witness statement of Thomas Cook dated 31 August 2018 at p 0076 [439].
[88]See WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at p 0082 [470].
[89]Plaintiff’s written closing submissions at [547].
[90]BUI.001.001.69951.
[91]BUI.001.001.69951.
[92]BUI.001.001.69952.
[93]BUI.001.001.69952.
[94]Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435 at [40] per Brereton J.
[95]T2-51, L25-40.
[96]Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435 at [40] per Brereton J; Diploma Construction Pty Ltd v Marula Pty Ltd [2009] WASCA 229; FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340; BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2009] VSCA 221.
[97]T4-87, L25-32.
[98]T2-51, L25-40.
[99]T4-87, L25-32.
[100]T4-83, L4-17.
[101](1990) 20 NSWLR 251.
[102]See pp 276-7.
[103]T2-51, L33-47.
[104]Save for Item 1 of Schedule 4.
[105]PRO.001.003.0057.
[106]PRO.001.003.0054.
[107]BUI.001.001.25669.
[108]BUI.001.003.86921.
[109]VP53 does not appear on the list of approved variations in the progress certificate.
[110]BUI.001.001.61986; BUI.001.001.61987; BUI.001.001.61988; BUI.001.001.61989. See further WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at [510].
[111]BUI.001.001.64716.
[112]BUI.001.001.68530.
[113]BUI.001.001.56060.
[114]BUI.001.001.71493.
[115]See WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at [512].
[116]See BUI.001.001.71520; BUI.001.001.71522; BUI.001.001.61912; BUI.001.001.61913.
[117]BUI.001.001.71520.
[118]BUI.001.001.71522.
[119]See WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at [515].
[120]PLE.001.001.0001.
[121]BUI.001.002.26977.
[122]At p 57.
[123]See BUI.001.001.69541 and BUI.001.001.58508.
[124]See BUI.001.001.56253; BUI.001.001.68678.
[125]T5-60, L44-45-T5-61, L1-7.
[126]BUI.001.001.64657.
[127]BUI.001.001.71501.
[128]See WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at [521].
[129]BUI.001.001.71551.
[130]BUI.001.001.71551.
[131]BUI.001.001.61820 at p 145.
[132]BUI.001.001.22200 at p 001.
[133]See PLE.001.001.0336 Amended Statement of Claim at p 0363 Schedule 4; PLE.001.001.0001 Third Amended Defence and Counterclaim at p 0084 of Annexure 2 Item 4.
[134]BUI.001.001.68532; BUI.001.001.56062.
[135]BUI.001.001.71621.
[136]PLE.001.001.0336 Amended Statement of Claim at p 0364 Schedule 4 Item 5; PLE.001.001.0001 Third Amended Defence and Counterclaim at pp 0084–5 Item 5.
[137]BUI.001.008.5574; BUI.001.008.5578; BUI.001.008.5575.
[138]BUI.001.001.64657.
[139]BUI.001.001.71501.
[140]BUI.001.001.64743; BUI.001.001.13923.
[141]BUI.001.001.71622.
[142]BUI.001.001.65311.
[143]BUI.001.001.71622.
[144]T4-85, L15-16.
[145]WIT.001.001.0250 at p 0264 [118].
[146]BUI.001.001.71743; BUI.001.001.66358.
[147]EXP.001.001.2176 at p 2206.
[148]PLE.001.001.0336 at page 0364; PLE.001.001.0001 at p 0086.
[149]BUI.001.003.10399.
[150]BUI.001.003.10398.
[151]BUI.001.001.70703.
[152]BUI.001.001.71012 and BUI.001.001.60903.
[153]Given the conclusion I have reached in respect of the entitlement to the 7.5 per cent preliminaries.
[154]Plaintiff’s written closing submissions at [771].
[155]See WIT.001.004.0001 Witness Statement of Thomas Cook dated 31 August 2018 at p 0094.
[156]BUI.001.001.68665; BUI.001.001.56238.
[157]BUI.001.001.71721.
[158]BUI.001.001.68578.
[159]BUI.001.001.56115.
[160]BUI.001.001.56226.
[161]See BUI.001.001.61820 at p 062 and EXP.001.001.2215 at p 2222.
[162]Plaintiff’s written closing submissions at [872]-[903].
[163]EXP.001.001.2459 at p 012.
[164]WIT.001.001.0462 at p 0005 [4.9].
[165]WIT.001.001.0462 at p 0009 [8.2]; PRO.061.001.0070.
[166]WIT.011.001.0462 at p 0009 [8.3].
[167]Mr Dummett agreed these items of work related to the water ingress through the crack: T13-47; L14-23.
[168]PLE.001.001.0001 at p 0093.
[169]Attached to the expert report of Mr Prove EXP.001.001.2459 at p 0053.
[170]EXP.001.001.2459 at p 0033.
[171]LJ Building Services Pty Ltd Report annexed to the expert report of Mr Prove EXP.001.001.2459 at p 0053 [3.3].
[172]WIT.001.001.0462 at p 0006 [5.10].
[173]WIT.001.001.0462 at p 0009 [8.2]; PRO.061.001.0070.
[174]WIT.001.001.0462 at p 0009 [8.1]-[8.4].
[175]WIT.001.001.0462 at p 0009 [8.2]; PRO.061.001.0070.
[176]WIT.001.001.0462 at p 0009 [8.1]-[8.4].
[177]WIT.001.001.0462 at p 0009 [8.2]; PRO.061.001.0070.
[178]Mr Cook’s evidence of his “belief” WIT.001.001.0476 at p 0002 [13].
[179]See plaintiff’s written closing submissions at [920]-[921].
[180]See plaintiff’s written closing submissions at [919].
[181]WIT.001.001.0471 at p 0004 [3.2]-[3.6].
[182]WIT.001.001.0471 at p 0004 [3.4(b)]–[3.9]
[183]WIT.001.001.0462 at p 0008 [7.5].
[184]WIT.001.001.0462 at p 0008 [7.5].
[184]Plaintiff’s written closing submissions at [923].
[186]BUI.001.001.0157.
[187]EXP.001.001.0157.
[188]EXP.001.001.0450 at p 0474.
[189]EXP.001.001.0512 at p 0552.
[190]EXP.001.001.2425 at p 2426.
[191]PRO.030.001.001.
[192]EXP.001.001.0512 at p 0552.
[193]EXP.001.001.2425 at p 2426.
[194]T13-5, L25-35.
[195]EXP.001.001.2425 at p 2427.
[196]The plaintiff’s written closing submissions at [960] and [964] refer to the amount of $17,347.94 as the calculation of Mr Watson. This appears to be the difference between Mr Hardiman and Mr Watson, rather than the amount of Mr Watson’s calculation.
[197]T13-8, L13-38.
[198]T13-9, L13-30.
[199]EXP.001.001.0512 at p 0552.
[200]EXP.001.001.0512 at p 0552.
[201]EXP.001.001.0512 at pp 0553-6.
[202]EXP.001.001.0512 at pp 0555-6.
[203]EXP.001.001.0512 at pp 0553-5.
[204]EXP.001.001.0012 at pp 0157-0158; T8-33, L9-13; T8-85, L44-T8-89, L14.
[205]T8-96, L27-36.
[206]T8–93, L7-26.
[207]EXP.001.001.0512 at pp 0554-0555. See also T8-92, L39-T8-94, L2; T8-94, L42-T8-96, L2.
[208]EXP.001.001.0012 at p 0177.
[209]EXP.001.001.0012 at p 0231.
[210]EXP.001.001.0012 at pp 0232-0234.
[211]EXP.001.001.0012 at p 0159 and pp 0231-0234.
[212]EXP.001.001.0012 at pp 0160 and 0217.
[213]EXP.001.001.0012 at pp 0160 and 0444.
[214]EXP.001.001.0012 at p 0160; EXP.001.001.0012 at p 0444.
[215]T9-54, L45-T9-55, L8.
[216]PLE.001.001.0143 at p 0083.
[217]EXP.001.001.0012 at p 0161.
[218]EXP.001.001.0012 at p 0204.
[219]PLE.001.001.0143 at pp 0083-4.
[220]EXP.001.001.0512 at p 556.
[221]EXP.001001.0512 at pp 557-8.
[222]EXP.001.001.2425 at p 2430; PRO.071.016.0004.
[223]EXP.001.001.2425 at p 2430.
[224]BUI.001.002.34972 at p 031.
[225]PRO.071.015.0001 at p 0007.
[226]PRO.071.015.0001 at p 0006.
[227]PRO.071.015.0001 at p 0008.
[228]There is some evidence that this was later modified to 70 litres per second per room. BUI.001.001.24769 at p 011.
[229]Test results commence at EXP.001.001.0012 at p 0204. See also defendant’s written closing submissions at [58] for summary.
[230]Of the 226 guest rooms.
[231]EXP.001.001.0450 at pp 0475-6.
[232]EXP.001.001.2279 at p 2292.
[233]BUI.001.002.34983; EXP.001.001.0512 at p 0545.
[234]EXP.001.001.0163.
[235]EXP.001.001.0162.
[236]PLE.001.001.0143 at pp 0084-5.
[237]EXP.001.001.0012 at p 0163.
[238]EXP.001.001.0512 at pp 0559-60.
[239]EXP.001.001.0512 at p 0545.
[240]T14-54, L35-40.
[241]WIT.001.004.0001 Witness Statement of Thomas Cook at p 0083; T7-76, L11-12.
[242]EXP.001.001.0512 at pp 0560-1.
[243]EXP.001.001.0512 at pp 0546-7.
[244]EXP.001.001.0012 at p 0165.
[245]EXP.001.001.0012 at p 0166.
[246]PLE.001.001.0143 at p 0088.
[247]BUI.300.001.0010 at p 16.
[248]T14-55, L17-23.
[249]Whilst there are questions about the filters in the context of the testing undertaken by Mr Visser, the rectification work and access does not appear to have been put directly to him in cross-examination.
[250]EXP.001.001.0012 at p 0019.
[251]BUI.300.001.0009; BUI.300.001.0010 at p 0015.
[252]BUI.001.002.34972 at p 023.
[253]BUI.001.002.34981.
[254]PLE.001.001.0143 at p 0089.
[255]EXP.001.001.0012 at p 0179.
[256]T9-87, L11-29.
[257]EXP.001.001.0012 at p 0167; EXP.001.001.0512 at p 0549; EXP.001.001.0012 at pp 0445-0446.
[258]EXP.001.001.0012 at pp 0167-8.
[259]EXP.001.001.0012 at pp 0167-8.
[260]EXP.001.001.0012 at pp 0167-0168.
[261]EXP.001.001.0012 at p 0168.
[262]EXP.001.001.0012 at pp 0168-9.
[263]EXP.001.001.0012 at p 0168.
[264]HX-2 (Toilet Exhaust Filter). EXP.001.001.0012 at p 0205.
[265]T9-42, L19–T9-43, L11.
[266]BUI.001.002.34972 at p 053.
[267]EXP.001.001.0012 at p 0169.
[268]EXP.001.001.0012 at p 0169.
[269]T14-56, L27-30.
[270]EXP.001.001.0012 at p 0169.
[271]BUI.001.002.34972 at p 096.
[272]EXP.001.001.0012 at pp 169-70.
[273]PLE.001.001.0143 at p 0091.
[274]EXP.001.001.0012 at p 0169.
[275]BUI.001.002.34972 at p 097.
[276]EXP.001.001.0012 at p 0170.
[277]EXP.001.001.0012 at p 0170.
[278]PLE.001.001.0143 at p 0091.
[279]EXP.001.001.0012 at p 0170.
[280]T13-30, L30-37.
[281]T13-32, L8-10.
[282]T13-32, L19-21.
[283]T13-32, L26-42.
[284]Clause 34 of the Contract.
[285]PRO.001.001.1749.
[286]PLE.001.001.0336 at p 0348 [46]-[47]; PLE.001.001.0001 at p 0040 [31].
[287]The defendant refers to the example of EXP.001.001.0858 at p 1046.
[288]BUI.001.001.61820 at p 141; PRO.071.005.0002.
[289]T3-27, L38-40.
[290]EXP.001.001.0858 at pp 944 [277] and 962 [316].
[291]BUI.001.001.71465; BUI.001.001.63006; BUI.100.003.8934; BUI.100.004.0417; BUI.001.001.61822; BUI.001.001.71410.
[292]EXP.001.001.0858 at pp 0880-3 [68]-[80]; see EXP.001.001.0858 at p 0880 [72].
[293]EXP.001.001.0858 at p 0882 [75].
[294]PRO.060.001.0095.
[295]The amount claimed is the difference between the sum already set-off and the corrected amount. PLE.001.001.0001 at p 0054 [51].
[296]Plaintiff’s written closing submissions at [372].
[297]In support of this contention the plaintiff refers to the decision of RB Burden Ltd v Swansea Corp [1957] 3 All ER 243 at 250 per Lord Radcliffe, but acknowledges that case related to a payment certificate. The reasoning in this case is of no real assistance in determining the current issue.
[298]The plaintiff identifies that progress payments are always on account, so the specific provision in clause 37.2 is not surprising.
[299]PRO.060.001.0095.
[300]PRO.001.001.1749.
[301]See plaintiff’s written closing submissions at [6]-[7].
[302]Attachment A to EXP.001.001.2176 Joint Expert Report pp 2-8.
[303]BUI.001.001.25031.
[304]Plaintiff’s written closing submissions at [158]-[159].
[305]Plaintiff’s written closing submissions at [159].
[306]Plaintiff’s written closing submissions at [164].
[307]BUI.001.003.58590; BUI.001.003.058591.
[308]WIT.001.001.0002 at p 0045 [268]; BUI.001.003.61318.
[309]BUI.001.002.44139.
[310]WIT.001.001.0002 at p 0045 [302].
[311]BUI.001.003.62181.
[312]WIT001.001.0002 at p 0064 [365].
[313]EXP.001.001.1621 at p 2148.
[314]Defendant’s written closing submissions at [239].
[315]Defendant’s written closing submissions at [243]-[244].
[316]T11-36, L43-44.
[317]BUI.001.001.66766.
[318]T1-33, L18-30.
[319]This evidence will be set out in more detail later in these reasons.
[320]T2-5, L18-21.
[321]T2-5, L37-38.
[322]T3-29, L16-19; T3-29, L21-23.
[323]T3-32, L35-46.
[324]T3-37, L1-24.
[325]T3-48, L1-T3-51, L2.
[326]Plaintiff’s written closing submissions at [289].
[327]See T1-78, L26-T1-79, L3; WIT.001.001.0002 at p 0035 [207]; BUI.001.001.71783; BUI.001.001.62025.
[328]See T1-79, L8-40; WIT.001.001.0002 at p 0035 [213]-[214]; BUI.001.001.71450.
[329]T1-79, L46-47.
[330]T1-80, L31-T1-81, L10; WIT.001.001.0002 at p 0037 [225]; BUI.001.001.71468.
[331]T1-81, L45-T1-82, L2.
[332]T1-82, L15-20.
[333]T1-82, L25-34.
[334]T1-84, L7-8.
[335]T1-84, L41-45; WIT.001.001.0002 at [2].
[336]T1-85, L4-29; WIT.001.001.0002 at p 0040 [244]; BUI.001.002.43899; BUI.001.002.43900.
[337]T1-85, L31-T1-86, L22; WIT.001.001.0002 at p 0041 [252]-[253]; BUI.001.001.66727 and documents in Attachment Schedule 11.
[338]T1-86, L24-30; WIT.001.001.0002 at 0042 [254].
[339]WIT.001.001.0002 at p 0037 [225].
[340]T1-88, L5-T1-89, L2; WIT.001.001.0002 [260]; BUI.001.001.64767.
[341]T1-88, L28-33.
[342]WIT.001.001.0002 at 0043 [260].
[343]T1-89, L4-10; WIT.001.001.0002 at p 0044 [264]-[265]; BUI.001.001.64792; BUI.001.001.14214; BUI.001.001.14215.
[344]WIT.001.001.0002 at p 0044 [264].
[345]T1-89, L4-7.
[346]T1-89, L9-10.
[347]T1-89, L12-16; WIT.001.001.0002 at p 0044 [267]; BUI.001.001.71529; BUI.001.001.61918; BUI.001.001.61919; BUI.001.001.61920.
[348]T1-89, L21-22.
[349]T1-89, L24-T1-90, L14; WIT.001.001.0002 at p 0045 [268]; BUI.001.003.61317.
[350]T1-90, L18-47; WIT.001.001.0002 at p 0045 [269]; BUI.001.001.64823 and the documents in Attachment Schedule 12.
[351]T2-3, L11-25.
[352]T2-3, L27-T2-4, L24; WIT.001.001.0002 at p 0045 [271]; BUI.001.001.64850.
[353]T2-3, L31-32.
[354]T2-3, L39-40.
[355]T2-4, L21; T2-4, L24-25.
[356]T2-4, L26-39.
[357]T2-4, L41-43.
[358]T2-4, L45-T2-5, L1; T2-5, L3-15.
[359]T2-5, L17-18.
[360]T2-5, L20-21.
[361]T2-5, L26-29.
[362]WIT.001.001.0002 [269]; BUI.001.001.64823.
[363]T2-6, L40-46.
[364]T2-6, L40-46; T2-7, L1-5.
[365]T2-7, L20-29; T2-8, L5-10.
[366]T2-7, L20-29; T2-8, L5-10.
[367]T3-37, L5-24.
[368]BUI.001.003.09334.
[369]T3-36, L38-40.
[370]T3-36, L45-46.
[371]BUI.001.003.75583.
[372]BUI.001.003.72575.
[373]T3-37, L45-46-T3-38, L1-7.
[374]T3-38, L9-39.
[375]T3-38, L45-46.
[376]T3-39, L4-7.
[377]T3-45, L23-T3-53, L3.
[378]T3-48, L1-T3-51, L2.
[379]Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231 at 238 (Barwick CJ); Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 360 at 364 (Bollen CJ, with whom Prior and Duggan JJ agreed); Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd & Ors (1996) 12 BCL 317 at 339 (Giles CJ).
[380]PRO.052.004.0226.
[381]T2-28, L18.
[382](1996) 12 BCL 317 at 339.
[383](1994) 11 BCL 360 at 364.
[384]WIT.001.001.0002 at p 0046 [280].
[385]BUI.001.001.68752; BUI.001.001.25027.
[386]BUI.001.001.66753; BUI.001.001.25028.
[387]BUI.001.001.66754; BUI.001.001.25029.
[388]BUI.001.001.66755; BUI.001.001.25030.
[389]BUI.001.001.66756; BUI.001.001.25031.
[390]EXP.001.001.0705.
[391]EXP.001.001.0858.
[392][2017] QSC 85.
[393]Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 [663].
[394][2015] WASC 217.
[395][2017] QSC 85 at [658].
[396][2017] QSC 85.
[397]Defendant’s written closing submissions at [179]-[183].
[398][2017] QSC 85.
[399][2017] QSC 85 at 271.
[400]BUI.001.001.61926.
[401]PRO.017.001.0922.
[402]BUI.001.001.71548.
[403]BUI.001.001.66457; WIT.001.004.0001 at [295]-[296].
[404]BUI.001.001.71561.
[405]BUI.001.001.15390; BUI.001.001.71572; BUI.001.001.65012; BUI.001.002.43897; BUI.001.003.72664; BUI.001.001.65035; BUI.001.001.71576; BUI.001.001.67957; BUI.001.001.66778; BUI.001.001.25054; BUI.001.001.71580; BUI.001.001.61945; BUI.001.001.25054; BUI.001.001.65095; BUI.001.001.61946; BUI.001.001.71582; BUI.001.001.61948; BUI.001.001.71583; BUI.001.001.65105; BUI.001.001.71584; BUI.001.001.61950; BUI.001.001.65130; BUI.001.001.71587.
[406]BUI.001.001.65149.
[407]BUI.001.001.71783; WIT.001.001.0002 at p 0035 at [208], [210].
[408]BUI.001.001.71468; WIT.001.001.0002 at p 0037 at [225].
[409]BUI.001.001.61891.
[410]WIT.001.001.0002 at p 0040 [242]; T1-85, L28-29.
[411]WIT.001.001.0002 at pp 0041-0049 [247]–[296]; T1-86, L11-22.
[412]BUI.001.001.14214; WIT.001.001.0002 at p 0044 at [264]–[265]. This schematic was not the same as what was ultimately installed.
[413]BUI.001.001.71529; WIT.001.001.0002 at p 0044 [267].
[414]BUI.001.001.64823 with attachments; WIT.001.001.0002 at p 0045 at [269].
[415]BUI.001.001.25030; WIT.001.001.0002 at p 0046 [280(d)].
[416]T2-11, L27-40.
[417]Defendant’s written closing submissions at [149].
[418]T2-13, L36-T2-14, L14; PRO.071.001.0004.
[419]T2-17, L5-13.
[420]16 August 2016, 31 August 2016 and 17 September 2016.
[421]Mr King gave evidence that based on his experience a period of two weeks after the shop drawings had been issued would be needed to manufacture the mechanical duct work before commencing construction. EXP.001.001.0858 at p 0898 [140].
[422]T1-78, L1-3.
[423]EXP.001.001.0858 at p 0899 [147]. The reference in Mr King’s report to 2016 should be a reference to 2015.
[424]BUI.001.001.61820 at p 0103; EXP.001.001.0858 at p 1046.
[425]Activity 377; EXP.001.001.0858 at p 0899 at [147].
[426]WIT.001.001.0224 at p 0232 [48]; WIT.001.001.0002 at p 0030 [167]-[169].
[427]BUI.001.001.71393 at p 0001.
[428]BUI.001.001.71393.
[429]PRO.017.001.1160 at p 0002.
[430]WIT.001.001.0002 at p 0033 [195]–[196].
[431]BUI.001.001.71436; BUI.001.001.67836; BUI.001.001.26910; BUI.001.001.26911; BUI.001.001.26912; BUI.001.001.26913; BUI.001.001.26914.
[432]Plaintiff’s written closing submissions at [212].
[433](1959) 101 CLR 298.
[434]Plaintiff’s written closing submissions at [212].
[435]T4-23, L34-T4-34, L22.
[436]WIT.001.001.0275 at [5].
[437]T6-18, L14-15.
[438]Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259.
[439]T6-16, L30-37.
[440]In the matter of Azmac Pty Limited (in liquidation) [2020] NSWSC 204 [49] (Rees J); Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 [81] (Nettle JA); Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QSC 179 [51]-[52] (Martin J).
[441][2002] NSWSC 13 at [64] per Austin J.
[442]EXP.001.001.0858 at [259].
[443]EXP.001.001.1325 at p 1338. See also T11-18, L43.
[444]EXP.001.001.1325 at p 1338.
[445]T11-19, L1-4-T11-20, L18.
[446]T11-19, L9-10.
[447]T11-19, L29-39.
[448]T11-19, L41-47-T11-20, L1-7.
[449]T11-19, L20.
[450]Plaintiff’s written closing submissions at [390(d)].
[451]BUI.001.001.14712.
[452]EXP.001.001.0705 at [71]-[73].
[453]Attachment 6 to Mr Bell’s Report EXP.001.001.0705.
[454]EXP.001.001.0858 at [175].
[455]EXP.001.001.0705 at [77].
[456]Attachment 7 to Mr Bell’s Report EXP.001.001.0705.
[457]EXP.001.001.0705 at [79].
[458]EXP.001.001.0705 at [81(c)].
[459]BUI.001.002.31204.
[460]Attachment 8 to Mr Bell’s Report EXP.001.001.0705.
[461]BUI.001.0001.09841; BUI.001.001.61955.
[462]Plaintiff’s written closing submissions at [367].
[463]Plaintiff’s written closing submissions at [367].
[464]EXP.001.001.0705 at p 0725 [48]-[49].
[465]This position is consistent with my finding earlier in these reasons.
[466]Defendant’s written closing submissions at [184].
[467]EXP.001.001.0858 at p 0894 [118].
[468]Defendant’s written closing submissions at [167].
[469]PRO.071.012.0009 at p 0032.
[470]PRO.071.012.0008 at p 0003; EXP.001.001.0858 at [127].
[471]PRO.071.012.0007 at p 0002.
[472]PRO.071.012.0006 at p 0003 [15.162-6].
[473]The float values of activities may also change. EXP.001.001.0858 at [127].
[474]EXP.001.001.0705 at p 0782.
[475]EXP.001.001.0705 at p 0735 [78].
[476]EXP.001.001.1325 at p 1333.
[477]Defendant’s written closing submissions at [194]–[195].
[478]EXP.001.001.0858 at pp 0894-7 [116]–[117], [124] and [134].
[479]EXP.001.001.0858 at pp 0921-0940 [193]-[258].
[480]EXP.001.001.0858 at pp 0929-0940 [212]–[217], [223]–[224], [240]–[243] and [258]–[263].
[481]T10-51, L44-T10-52, L39; T10-56, L23-T10-59, L43.
[482]WIT.001.004.0001 at [280]–[316].
[483]EXP.001.001.0858 at p 0921 [188].
[484]EXP.001.001.0858 at [196]-[197].
[485]WIT.001.004.0001 at [282], [283] and [311].
[486]The 18 October 2016 program has a date for practical completion of 16 December 2016. If the 26 October program is adjusted for the actual date of plant procurement, the scheduled date for practical completion is 9 March 2017. The difference between the two due to the Mechanical Variation is 83 days.
[487]See separate discussion of issue.
[488]See separate discussion of issue.
[489]T9-105, L11-22.
[490]T10-12, L4-16.
[491]Overhead labour costs are a large portion of the costs claimed.
[492]T10-14, L29-T10-15, L9.
[493]Plaintiff’s written closing submissions at [445].
[494]EXP.001.001.1518.
[495]EXP.001.001.1518 at [57(b)].
[496]EXP.001.001.1518 at [57(d)].
[497]Plaintiff’s written closing submissions at [473]-[475].
[498]T10-24, L15-25.
[499]Defendant’s written closing submissions at [305].
[500]Description taken from Robert Gemmell’s text “Quantification of Delay and Disruption in Construction and Engineering Projects” PRO.071.013.0006 at pp 0003-0006.
[501]T10-25, L33-45-T10-27, L12-29.
[502]EXP.001.001.1621 at p 1691 [6.2.54]; PRO.071.013.0006 at p 0004.
[503]T13-2, L45-T13-3, L3.
[504]T15-33, L10-18.
[505]T15-33, L34-45; Alfred McAlpine Homes North Ltd v Property and Land Contractors Ltd (1995) 76 BLR 59 at 70; J F Finnegan Ltd v Sheffield City Council (1988) 43 BLR 124 at 134-135.
[506]EXP.001.001.0858 at pp 0880-0883.
[507]PRO.060.001.0095 which was admitted into evidence and can be relied upon for the truth of its contents.
