620 Collins Street Pty Ltd v Abigroup Contractors Pty Ltd

(1) Without prejudice to the right of appeal conferred by sub-section (2), the Court shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award.

(2) Subject to sub-section (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

(3) On the determination of an appeal under sub-section (2) the Supreme Court may by order --

(a) confirm, vary or set aside the award; or

(b) remit the award, together with the Supreme Court's opinion on the question of law which was the subject of the appeal, to the arbitrator or umpire for reconsideration or, where a new arbitrator or umpire has been appointed, to that arbitrator or umpire for consideration --

and where the award is remitted under paragraph (b) the arbitrator or umpire shall, unless the order otherwise directs, make the award within three months after the date of the order.

(4) An appeal under sub-section (2) may be brought by any of the parties to an arbitration agreement --

(a) with the consent of all the other parties to the arbitration agreement; or

(b) subject to section 40, with the leave of the Supreme Court.

(5) The Supreme Court shall not grant leave under sub-section (4)(b) unless it considers that --

(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and

(i) a manifest error of law on the face of the award; or

(ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.

(6) The Supreme Court may make any leave which it grants under sub-section (4)(b) subject to the applicant complying with any conditions it considers appropriate.

(7) Where the award of an arbitrator or umpire is varied on an appeal under sub-section (2), the award as varied shall have effect (except for the purposes of this section) as if it were the award of the arbitrator or umpire."

5 In Leighton Contractors Pty Ltd v South Australia Superannuation Fund Investment Trust[1] Debelle J summarised the relevant principles as follows:

"1. There is no appeal from an arbitrator on a question of fact.

2. While s.38 provides that an appeal shall lie from the award of an arbitrator on a question of law, leave must nevertheless be obtained unless both parties consent to the appeal.

3. Leave will only be granted in the circumstances prescribed in s.38(5).

4. The applicant for leave must satisfy both paragraphs (a) and (b) of s.38(5). ...

5. The epithet 'manifest' in the expression 'manifest error of law' is used to indicate an error which is evident or obvious rather than one which is arguable. ...

6. If the court determines that there is no manifest error of law, an application based on this ground fails.

7. If the court is satisfied that a manifest error of law exists, a question arises whether the court should, in the exercise of its discretion, grant leave. ...

8. Assuming that there is not a manifest error of law on the face of the award, it may be argued that there is strong evidence that the arbitrator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law. This requirement indicates that the question should be one of wider and greater importance than, for example, the construction of a one-off clause in the context of the particular agreement between the parties. ..."

6 It is necessary to say something firstly, concerning the requirements of s.38(2) and (5) of the Act. The starting point must be that s.38 is concerned with questions of law arising out of an award and not with questions of fact.

7 The distinction between an error of law and an error of fact is of significance in assessing some of the grounds advanced on behalf of the plaintiffs in the present case. As I stated in State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd: [2]

"It is sufficient for present purposes to record that an error of fact may amount to an error of law where an appeal court concludes that it was not open to an inferior tribunal to find a fact or reasonably open to an inferior tribunal to draw inferences or reach overall conclusions of fact. The word "reasonably" in this context may be thought strictly unnecessary for the reasons stated by Phillips JA in S v Crimes Compensation Tribunal[3]. It is to be understood in the sense used by Mason CJ in Bond at 356 (with whom on this point Brennan, Toohey and Gaudron JJ agreed):

'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words the particular inference was reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning there is no place for judicial review because no error of law has taken place'."

8 Section 38(5)(b)(i) requires "a manifest error of law on the face of the award." In Promenade Investments Pty Ltd v New South Wales[4] Sheller JA said:

"There should ... before leave is granted be powerful reasons for considering on a preliminary basis without any prolonged adversarial argument that there is on the face of the award an error of law."

This statement was referred to with approval by Ormiston and Hansen JJ in Melbourne VV Pty Ltd v Pratt[5] and by Ormiston JA (with whom Winneke P, Phillips, Buchanan and Vincent JJA) agreed in Energy Brix Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd. [6]

9 In Leung v Hungry Jacks Pty Ltd,[7] Hedigan J stated the error must be "evident and obvious rather than merely arguable."

10 In Natoli v Walker,[8] after canvassing United States authority with respect to comparable requirements Kirby P said of the term "manifest":

"Obviously, there is a difficulty in the word 'manifest'. What may be 'manifest' to one judicial officer may fail to persuade another. The criterion cannot be the swiftness of mind of the sharpest intellect. Nor can it be the perception of one whose career has been devoted to examining and reflecting upon building contracts. An objective, not a subjective, test for what is 'manifest' is contemplated. But the word will not go away. Against the background of its history in this context it requires swift and easy persuasion and rapid recognition of the suggested error."

The First Ground for Leave to Appeal - Delay in Publishing Award and Failure to Deal with Submissions Worthy of Serious Consideration

11 The basis of the first ground was summarised on behalf of the plaintiffs as follows:

"(1) The plaintiffs submit that leave ought to be granted under s.38(5)(b)(ii) on the basis that there is strong evidence that the Arbitrator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law. Further, it is submitted that determination of the question of law could substantially affect the rights of one or more of the parties to the arbitration agreement;

(2) That the Arbitrator was guilty of inordinate and inexcusable delay in publishing the award and that, as a result, the Arbitrator failed to consider at all, or failed to properly consider and deal with submissions worthy of serious consideration;

(3) In particular the Arbitrator failed to consider the plaintiffs' submissions at paragraphs [81]-[138] of its closing submissions relating to the use of the Go Mode program as the baseline program for the assessment of delay;

(4) The Arbitrator's failure to consider or properly consider such submissions constituted procedural unfairness which constituted an error of law;

(5) In addition to the delay, the failure by the Arbitrator to consider the plaintiffs' submissions at paragraphs [81]-[138] of its closing submissions constituted an error of law."[9]

12 The factual background to this matter is set out in my judgment in the misconduct proceeding.

13 I do not accept that there is strong evidence the Arbitrator made an error of law as claimed. My reasons for this view are those set out in my decision concerning the first ground of alleged misconduct in the misconduct proceeding which deal with the same subject matter. In summary I am not persuaded there is strong evidence the Arbitrator failed to address the plaintiffs' submissions insofar as such submissions were relevant to his reasoning, which reasoning was open to him.

The Second Ground for Leave to Appeal - Making a Finding that 15 Agreements Were Made Under Clause 35.4 of the Contract Regarding the Creation of New Separable Portions out of SP1 - Which Finding Was Not Pleaded or Contended by Either Party

14 The plaintiffs' counsel summarised this ground as follows:

"(1) The plaintiffs submit that leave ought to be granted under s.38(5)(b)(i) on the basis that there is a manifest error of law on the face of the award;

(2) The defendant claimed that an agreement was made between it and the first plaintiff whereby they agreed to create 15 new separable portions out of the separable portion 1;

(3) The first plaintiff denied such agreement as alleged by the defendant, pleading that SP1 remained intact;

(4) The Arbitrator decided the issue on a basis not pleaded or contended for by either party. He found that 15 separate agreements were made creating 15 new separable portions;

(5) What the Arbitrator did constituted procedural unfairness which was an error of law;

(6) The determination of this issue could substantially affect the rights of both of the parties under the contract in relation to liquidated damages, bonus for early completion and extension of time and delay cost entitlements."

15 I do not accept the Arbitrator's award demonstrates a manifest error of law on the basis asserted, for the reasons set out in my decision with respect to the third alleged ground of misconduct in the misconduct proceeding. In summary I do not accept that it is manifest the Arbitrator went outside the defendant's claim or denied the plaintiffs procedural fairness.

The Third Ground for Leave to Appeal - Grant of Extension of Time With Respect to the Soho Apartments Which Claim Was Not Pleaded or Claimed in the Arbitration

16 The plaintiffs' counsel summarised the basis of this ground as follows:

"(1) The plaintiffs submit that leave ought to be granted under s.38(5)(b)(i) on the basis that there is a manifest error of law on the face of the award;

(2) The Arbitrator awarded the defendant an extension of time for the completion of the Soho Apartments (part of separable portion 1) even though no extension of time had been pleaded or contended for by the defendant;

(3) What the Arbitrator did constituted procedural unfairness which was an error of law;

(4) The determination of this issue could substantially affect the rights of the parties under the contract in relation to liquidated damages, bonus for early completion and extension of time and delay cost entitlements."[10]

17 I have held in the misconduct proceeding that the procedural unfairness complained of with respect to this proposed ground constituted misconduct by the Arbitrator.

18 It is accordingly unnecessary to grant leave to appeal with respect to this ground.

The Fourth Ground for Leave to Appeal - The Arbitrator Fell Into Error by Following the Decision in Peninsula Balmain v Abigroup

19 It is submitted the Arbitrator

(a) erred in following the Peninsula Balmain[11] case; or

(b) erred in exercising the reserve discretion vested in him by cl.35.5 of the contract if he was correct in following the Peninsula Balmain case.

"35.5 Extension of Time for Practical Completion

When the Contractor becomes aware that anything, including an act or omission of the Principal, the Superintendent, the Principal's Representative or the Principal's employees, consultants, other contractors or agents, may delay the work under the Contract, the Contractor shall promptly notify the Superintendent in writing with details of the possible delay and the cause.

When it becomes evident to the Principal that anything which the Principal is obliged to do or provide under the Contract may be delayed, the Principal shall promptly give notice to the Superintendent who shall promptly notify, the Contractor in writing, of the extent of the likely delay.

If the Contractor is being delayed or will be delayed in reaching Practical Completion by a cause described in the next paragraphs and within 7 days after the delay occurs or the Contractor becomes aware of the delay and, the Contractor gives the Superintendent a written claim for an extension of time for Practical Completion setting out the facts on which the claim is based and demonstrating the extension to the critical path or paths as set out in the Contractor's Program provided under clause 33.2, the Contractor shall be entitled to an extension of time for Practical Completion to the extent approved by the Superintendent (or any tribunal or court reviewing the decision of the Superintendent).

The causes are ―

(a) strikes, demarcations or industrial disputes which affect the Site and more than 50% of major building sites or is part of a rolling industrial campaign in the greater Metropolitan Melbourne area not caused by the Contractor or its Subcontractors;

occurring on or before the Date for Practical Completion and which are beyond the reasonable control of the Contractor; and

(b) any of the following other causes whether occurring before, on or after the Date for Practical Completion -

― the Principal;

― the Superintendent or the Principal's Representative;

― an employee, consultant, other contractor or agent of the Principal, the Principal's Representative or Superintendent;

but, for the avoidance of doubt, this cause of delay does not include delay or disruption as a result of an act of the Principal, the Superintendent or the Principal's Representative authorised by the Contract made in response to a default error or omission of the Contractor;

(ii) not used;

(iii) a Latent Condition;

(iv) a variation;

(v) a change in Legislative Requirements;

(vi) a direction by a municipal, public or statutory authority but not where the direction arose from the failure of the Contractor to comply with a Legislative Requirement;

(vii) delay by a municipal, public or statutory authority not caused by the Contractor;

(viii) not used;

(ix) a breach of the Contract by the Principal;

(x) a suspension under clause 34.5 (other than a suspension caused by the Contractor); and

(xi) Court orders restraining the commencement or continuation of the work under the Contract or the Contractor performing its obligations under the Contract other than orders relating solely to protection works for which the Contractor is responsible under the Contract or Court Orders for which the Contractor is responsible or liable under the Contract.

Where more than one event causes concurrent delays and the cause of at least one of those events, but not all of them, is not a cause of delay listed in Clause 35.5(a) or (b), then to the extent that the delays are concurrent, the Contractor shall not be entitled to an extension of time for Practical Completion.

Notwithstanding the preceding paragraph the Contractor shall be entitled to an extension of time if the concurrent delay occurs after the Date for Practical Completion and the cause of the delay is one or more of the events listed in Clauses 35.5(b)(i), (iv), (viii) and (ix).

In determining whether the Contractor is or will be delayed in reaching Practical Completion regard shall not be had to ―

• whether the Contractor can reach Practical Completion by the Date for Practical Completion without an extension of time; or

• whether the Contractor can, by committing extra resources or incurring extra expenditure, make up the time lost.

With any claim for an extension of time for Practical Completion, or as soon as practicable thereafter, the Contractor shall give the Superintendent written notice of the period of extension claimed.

If the Contractor is entitled to an extension of time for Practical Completion the Superintendent shall, within 7 days of receipt of the notice of the number of days extension claimed, either request further reasonable particulars, refuse an extension of time if it is not reasonable that any extension of time be granted or, grant a reasonable extension of time. If within the 7 days, the Superintendent does not grant the full extension of time claimed, the Superintendent shall before the expiration of the 7 days give the Contractor notice in writing of the reason. If the Superintendent requests further reasonable particulars, the Contractor must provide all the reasonable particulars requested within 7 days of the Superintendent's request and this paragraph shall apply again as if receipt of the particulars was receipt of the notice of the number of days extension claimed except that the Superintendent may not then again request further particulars.

In determining a reasonable extension of time for an event causing delay, the Superintendent shall have regard to whether the Contractor has taken all reasonable steps to preclude the occurrence of the cause and minimise the consequences of the delay.

Notwithstanding that the Contractor is not entitled to or has not claimed an extension of time, the Superintendent may at any time and from time to time before the issue of the Final Certificate by notice in writing to the Contractor extend the time for Practical Completion for any reason.

A delay by the Principal or the failure of the Superintendent to grant a reasonable extension of time or to grant an extension of time within 7 days, shall not cause the Date for Practical Completion to be set at large but nothing in this paragraph shall prejudice any right of the Contractor to damages."

"150. The penultimate (tenth) paragraph of Cl 35.5 provides the Superintendent with a discretion capable of being exercised independently. This conclusion is reinforced by the use of the expressions 'at any time and from time to time' and 'for any reason'. In Building and Construction Contracts in Australia, Messrs Dorter and Sharkey say of this provision:

'Basically, it is fair to both parties in that it can safeguard against liquidated damages or prevention.'

151. In Building and Construction Claims and Disputes, Construction Publications 1996 at s.4.3.5.1, Mr Doug Jones AM argues:

'In circumstances where the superintendent is empowered to grant an extension of time even when the contractor has not applied for it, must the superintendent exercise this fairly?

The answer to this question under AS 2124 [referring to Clause 23] is an explicit yes. 'The principal shall ensure that at all times ... the superintendent ... act honestly and fairly.' It may be arguable, then, that the principal will be in breach of contract to the contractor if the superintendent does not exercise its right to unilaterally extend time in the contractor's favour.

This argument is probably not available under any of the other standard forms. Defence and FIDIC, for example, provide explicitly that the superintendent will be under no obligation on his or her own motion to extend time.'

152. The Peninsula Balmain v Abigroup Contractors Pty Ltd case ([2002] 18 BCL 15 and on appeal [2002] 18 BCL at 322) was a dispute arising out of an AS 2124-1992 contract with certain modifications and additions provided by special conditions. The relevant point in the case centred on Abigroup's entitlement to EOT's for variations and one other claim. The Referee, an engineer with wide experience in contract administration, found that, despite the mandatory provisions set out in Clause 35.5, it was still open to the Superintendent to grant an EOT even if the Contractor had not followed the Clause 35 procedure. In forming that view, the Referee referred to the earlier quoted passage from Mr Jones' book. Both the judge at first instance and the NSW Court of Appeal agreed with the Referee on this point.

153. Hodgson JA, with whom Mason P and Stein JA agreed, found at p.343:

'I accept that, in the absence of the superintendent's powers to extend time even if a claim had not been made within time, Abigroup would be precluded from the benefit of an extension of time and liable for liquidated damages, even if delay had been caused by variations required by Peninsula and thus within the so-called 'prevention principle'. I think this does follow from the two Turner cases and the article by Professor Wallace QC referred to by Mr Rudge SC.

In my opinion, no error is shown regarding the primary judge's acceptance of the referee's conclusion based on the superintendent's power. In my opinion, this power is one capable of being exercised in the interests both of the owner and the builder, and in my opinion, the superintendent is obliged to act honestly and impartially in deciding whether to exercise this power. Of course, if a timely claim has not been made, and the ground on which an extension is claimed is one which is difficult to decide because of the time that has elapsed since the time when the claim should have been made, that may be a ground on which the superintendent can fairly refuse the extension; but there is no suggestion that that is the case here.

In my opinion, also, the power to extend time, including the power to do so even if no claim has been made within time, does not automatically come to an end with the termination of the contract for the builder's breach ... ' [emphasis added].

22 At [155]-[156] the Arbitrator addressed the terms of the contract before him:

"155. It is relevant that Clauses 23 and 35.5 in AS 2125-1992 are virtually the same as Cls 23 and 35.5 in the subject Contract. The first lines of the tenth paragraph of Cl 35.5 are:

'Notwithstanding that the Contractor is not entitled to or has not claimed an extension of time, the Superintendent may ...' [emphasis added].

156. The words 'or has not claimed' incorporated in AS 4300 and this Contract were not included in the AS 2124 clause considered in Peninsula Balmain by the Court of Appeal. In my view, this incorporation somewhat strengthens the application to this Contract of the finding in Peninsula Balmain."

23 He then addressed a series of learned articles in which the decision in Peninsula Balmain has been considered and criticised.[12]

24 These articles advance the view that the reserve power given to the Superintendent under the penultimate provision of cl.35.5 (in its standard form) is only to be exercised for the benefit of the Principal. Unless the power is so construed, it is contended the power has the capacity to destroy the prescribed time limits forming the agreed framework for the performance of the contract.

25 The Arbitrator then summarised the contentions of the parties (award [162]-[163]) and concluded:

"164. It seems to me that (having regard to Peninsula Balmain), if the Superintendent's discretionary power contained in the penultimate clause can be exercised in the interest of the Contractor, one must ask how can this situation sit comfortably with the mandatory steps precedent to an EOT entitlement as set out earlier in Cl 35.5?

165. In my view, the answer to the above question lies within the penultimate paragraph itself. If the Contractor fails to comply with the mandatory notice provision for an EOT, the Contractor is not entitled to an EOT as the claim is time barred. Such circumstances are expressly considered ('is not entitled to ... an extension of time') in the penultimate paragraph of Cl 35.5 and do not fetter the wide discretion of the Superintendent who (under Cl 23) is required to act 'honestly and fairly'. A similar situation applies to circumstances where the Contractor has not claimed an EOT. In applying Peninsula Balmain, the more difficult question to consider is what is fair in the circumstances.

166. Peninsula Balmain represents a change in direction of the law in respect of standard forms of the AS 2124/AS 4300 type which clothe the Superintendent with the independent discretion to extend time. The articles by Messrs Bellemore and Baron particularly defend the traditional view. However, I think there is force in Mr Jones' commentary which the Court of Appeal appears to have accepted. It is also clear that the Court of Appeal considered the commentary of Professor I.N.D. Wallace QC (Prevention and Liquidated Damages: A Theory Too Far? [2002] 18 BCL 82-86) which, in effect, respectfully disagreed with the decision on this point at first instance.

167. In my respectful opinion, in relation to the application of the penultimate paragraph of Cl 35.5, it seems that Peninsula Balmain was decided correctly both at first instance and on appeal.

168. Because of the Australia-wide use of contracts such as AS 2124/AS 4300, it also seems to me that it is appropriate to apply Peninsula Balmain in Victoria in the circumstances where there is no inconsistent decision of the Victorian Supreme Court."

26 In my view the Arbitrator was correct in his decision:

(a) The primary mechanism of cl.35.5 gives the contractor an entitlement to an extension of time, subject to compliance with special conditions;

(b) The penultimate paragraph reserves a discretionary power to grant an EOT in other circumstances effectively where it is just and equitable to do so;

(c) Such power is expressly directed to situations where "the contractor is not entitled to or has not claimed an extension of time ...";

(d) It is expressed to arise on a separate and distinct basis from the provision for the extension of time pursuant to the primary mechanism;

(e) The grounds for exercise of the reserve power are expressed in the broadest possible terms as "for any reason".

(f) The potential prejudice to the principal flowing from a failure by the contractor to comply with s.35.5 is a matter going squarely to the equitable exercise of the Arbitrator's discretion.

27 There is no basis in the objective language of the contract read as a whole to read down these last words by reference to one party alone.

28 The words are as the Arbitrator observed subject to the obligation of the Superintendent to act "honestly and fairly".

29 It was open to the parties to modify the contract to give effect to the limitation for which 620 contends, by the use of relatively simple language. They did not do so.

30 To the contrary, as the Arbitrator observed, the parties adopted a form of condition which emphasised the independence of the Superintendent's discretion, by use of the words "or has not claimed an extension of time".

31 In accordance with the general rule stated by the Privy Council in BP Refineries (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings[13] in order to justify the implication of a term in a contract which the parties have not expressed, the following conditions must be satisfied:

(2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;

(3) It must be so obvious that "it goes without saying";

(4) It must be capable of clear expression; and

(5) It must not contradict any express terms of the contract.[14]

(1) It is relatively easy to hypothesise situations in which the limitation contended for could result in an unreasonable and inequitable result;[15]

(2) The limitation is not necessary to give business efficacy to the contract, in the sense that the contract would not be effective without it;

(3) The limitation is not so obvious that "it goes without saying";

(4) It is capable of clear expression; but

(5) It contradicts the express use of the words "for any reason".

33 In this Court Peninsula Balmain was applied by Warren CJ in Kane Constructions Pty Ltd v Sopov[16]. In considering the AS 2124-1992 contract Warren CJ stated:[17]

"In addition to cl.35.5 and the provision for EOTs, it remained open to the superintendent, at any time and from time to time before the issue of the final certificate, by notice in writing to the plaintiff, to extend the time for practical completion for any reason. Furthermore, under cl.35.5, the superintendent was obliged to certify an extension of time for the plaintiff where it may be fair and reasonable to do so, notwithstanding a plaintiff's failure to make a claim or non-compliance with the relevant timing requirements for an extension of time claim: see Abigroup v Peninsula Balmain."

34 In my view the Arbitrator was correct to follow Peninsula Balmain.

35 It is further contended on behalf of 620 that the Arbitrator erred in the exercise of his discretion. In my view it was reasonably open to the Arbitrator to find, as a matter of fact, that Extensions of Time ("EOT's") 10, 14, 42, 44 and 52 were capable of being dealt with under the penultimate paragraph of cl.35.5.

36 The discretion exercisable under the penultimate paragraph of cl.35.5 was not conditional upon proof that Abigroup prepared and utilised a baseline program in accordance with the contract.

37 Further, for the reasons I have set out in dealing with the second ground relied on in the misconduct proceeding the Arbitrator's reasons with respect to the fact disclose no error of law.

38 Accordingly, the 4th ground for leave to appeal fails.

The Fifth Ground - Did the Arbitrator Fall into Error in Applying the Same Pre-Agreed Daily Rate for Delay Costs Applicable in Respect of the Original Separable Portions 1 and 2, to the 24 New/Remaining Separable Portions Found by the Arbitrator, and Compound the Error by Applying Liquidated Damages on a Pro Rata Basis

39 The plaintiffs submit:

(a) The Arbitrator fell into error in applying the same pre-agreed daily rate for delay costs applicable in respect of the original separable portions 1 and 2, to the 24 new/remaining separable portions;

(b) The Arbitrator fell into error in failing to find that the application of pre-agreed daily costs to the new separable portion for level 27 was a penalty.

"'Where the Contractor has been granted an extension of time under Clause 35.5 for any delay or disruption caused by any of the events referred to in Clause 35.5(b)(i), the Principal shall pay to the Contractor extra costs in respect of such delay at the pre-agreed daily rates stated in Annexure Part A.

Where the Contractor has been granted an extension of time under Clause 35.5 for any delay caused by any other event for which payment of extra costs for delay or disruption is provided for in Annexure Part A or elsewhere in the Contract, the Principal shall pay to the Contractor extra costs in respect of such delay at the pre-agreed daily rates stated in Annexure Part A.

Delay costs shall be calculated on a working day basis and the Superintendent will apply the pre-agreed daily rates stated in Annexure Part A to the working days as set out in Schedule 9.

Nothing in this Clause 36 shall -

(a) oblige the Principal to pay extra costs for delay, or disruption which have already been included in the value of a variation or any other payment under the Contract;

or

(b) limit the Principal's liability for damages for breach of contract'." [emphasis added].

41 The contract provided pre-agreed rates for delay costs of $11,800 with respect to SP1 and $7,235 with respect to SP2.

42 The Arbitrator found that 15 new separable portions were created within SP1 and nine new separable portions were created within SP2.

43 He found that "Abigroup's claim for delay costs is based on separate EOT entitlements to SP1 and SP2 and is unrelated to the new separable portions."[18]

44 620 contends it was not open to the Arbitrator to regard the new separable portions as created "within" the original SP1 and SP2 and to calculate delay costs on this basis.

45 The Arbitrator commenced his consideration of the delay issue by setting out relevant background considerations. He identified the following potential components of delay cost:

(a) Time related direct costs such as insurances, plant, equipment, site offices/amenities, on-site supervision, and other preliminaries;

(b) Work related direct costs - usually only where delay causes loss of productivity;

(d) Head office overheads - a component of these costs in circumstances where a delay denies a contractor the opportunity to carry out other work to fund these overheads; and

(e) Loss of profits on the same basis as in (d) above.[19]

46 The AS 2124/AS 4000 series of General Conditions of Contract make provision for the parties to agree on pre-estimated daily rates for delay costs in order to ascertain a figure which might otherwise be contentious to quantify.

47 The Arbitrator then set out the relevant contractual provisions and identified which EOTs were properly the subject of claims for delay entitlements.

48 He then considered and ruled on submissions as to the proper basis of calculation of daily rates.

49 He considered and ruled on submissions as to whether there was a wrongful double claim in respect of EOT claims and delay costs under both SP1 and SP2. He rejected Abigroup's submission that it was entitled to claim in respect of an EOT affecting both SP1 and SP2.

"455. By referring back to the earlier section background to delay costs, it can be seen that the pre-determined rates for delay costs in the contract are those the parties have agreed will compensate the Contractor for certain delays identified in the contract. For example, if a critical delay occurs within the SP1 works and falls within cl.35.5(b), the total duration of those SP1 works is increased and the applicable delay costs are those assessed at the pre-determined rates referrable to SP1. As the completion of SP2 is dependent on the completion of SP1, the Contractor is entitled to an EOT for SP1 and the same EOT for SP2. The SP2 works are now displaced in time by the amount of the critical delay. However, the actual total duration of the SP2 works is not lengthened, and no delay costs are payable in respect of SP2 for the critical delay which occurred within SP1. In my opinion, therefore, Abigroup is only entitled to delay costs in respect of the separable portion in which the delay occurs."

50 The Arbitrator then went on to deal with "penalty issues". He recorded his rejection of the view expressed in evidence on behalf of 620 that the agreed delay costs were based on "peak exposure" rates rather than "average costs".

51 He recorded 620's submission that the recovery of the pre-agreed delay rates in respect of each of the 24 new SPs would be unenforceable as a penalty.

52 The Arbitrator accepted that there could not be cumulative claims in respect of new SPs within SP1 or SP2.

"458. It is apparent that the Principal has no difficulty with the delay costs rates agreed for SP1 and SP2. If these same rates were applied to each of the new separable portions this would be illogical, and would certainly constitute an extravagant and unconscionable amount and it would be penal. For example, one can consider Rio 242 (basement enlargement and additional structure) for which Abigroup has an entitlement of 11 working days EOT in respect of SP1 and SP2. Absent any new separable portions, the entitlement to delay costs under the original contract is $129,800 in respect of SP1 (11 x $11,800 = $129,800). Obviously, if the same rates were applied in turn to each of the new and remaining separable portions within SP1, the delay cost recovery would be many times the cost of $129,800."

53 The Arbitrator then set out cl.35.3 of the contract and dealt with the submissions that the delay rates should themselves be apportioned as between the new SPs. Clause 35.3 provides:

"The interpretations of -

(a) Date for Practical Completion;

(b) Date of Practical Completion; and

(c) Practical Completion,

and clauses 5.2, 5.5, 5.8 (if applicable), 5.9, 16, 35, 37, 38 and 42.3 and any other applicable clauses shall apply separately to each Separable Portion and references therein to the works and to the work under the contract shall mean so much of the works and the work under the contract as is comprised in the relevant separable portion.

If the contract does not make provision for the amount of security, retention monies, liquidated damages or bonus applicable to a separable portion, the respective amounts applicable shall be such proportion of the security, retention monies, liquidated damages or bonus applicable to the whole of the work under the contract as the value of the separable portion bears to the value of the whole of the work under the contract."

"461. Clause 36 relates to delay costs and is not expressly referred to in the first main paragraph of clause 35.3, although there is reference to 'any other applicable clauses'. In the second paragraph, there is no reference at all to delay costs although it expressly requires apportionment of security, retention monies, LD's and bonus entitlement. In my view, clause 35.3 does not make provision for the apportionment of delay costs when new separable portions are created and clause 36 cannot be regarded as an 'other applicable clause'. Accordingly, the Principal's alternative submission fails."

55 In my view this conclusion discloses no manifest error of law. It reflects a process of construction reasonably open to the Arbitrator. In Melbourne Harbour Trust Commissioners v Hancock[20] the High Court quoted with approval Viscount Cave LC's reasoning in Kelantan Government v Duff Development Co[21] that:

56 "The reference, therefore, was a reference as to construction. If this be so, I think it follows that, unless it appears on the face of the award that the arbitrator has proceeded on principles which were wrong in law, his conclusions as to the construction of the deed must be accepted. No doubt an award may be set aside for error of law appearing on the face of it; and no doubt a question of construction is (generally speaking) a question of law. But where a question of construction is the very thing referred for arbitration, then the decision of the arbitrator on that point cannot be set aside by the Court only because the Court would itself have come to a different conclusion. If it appears by the award that the arbitrator has proceeded illegally - for instance, that he has decided on evidence which is law was not admissible or on principles of construction which the law does not countenance, then there is error in law which may be ground for setting aside the award; but the mere dissent from the Court from the arbitrator's conclusion on construction is not enough for that purpose."

57 The Arbitrator then stated:

"462. Abigroup's claim for delay costs is based on separate EOT entitlements to SP1 and SP2 and is unrelated to the new separable portions."

58 Again, in my view, this conclusion discloses no manifest error of law. It reflects a view reasonably open as to the factual basis of the claim for delay costs.

59 At [463] the Arbitrator articulated the penalty argument as exemplified by 620 in respect of level 27 of the project:

"463. ... The essence of the argument put by the Principal is that, if the contract is construed to operate in a way that the same rate for delay costs applies whether the critical delay occurs early in the performance of the SP2 works (prior to any of the levels reaching Practical Completion) or occurs when all levels of SP2, save for minor variation works, have reached Practical Completion and have been agreed or determined to be separable portions, then such provision, insofar as it seeks to impose the same quantum of LD's to both situations, is a penalty."

60 The Arbitrator then referred to leading statements of the notion of a penalty payable upon breach of contract. He then said:

"469. In circumstances where the parties have pre-agreed rates for delay costs, the onus of establishing that the amount of delay costs would be extravagant and unconscionable falls on the Principal. The evidence indicates that the parties negotiated both LD's and delay costs in the period prior to entering into the consultancy agreement. From Mr Hart's cross-examination and Abigroup's facsimile dated 25 August 2000, I think the inference can be drawn that the pre-estimates of delay costs were probably genuine average values for each of SP1 and SP2. One can also infer from Abigroup's 25 August 2000 facsimile that work related direct costs probably did not form part of the pre-estimate of these costs. It follows that the low work force is not directly to point in relation to delay costs although it may have impacted on the extent of site offices and amenities established on site.

470. Abigroup was required to maintain its establishment on site until Practical Completion of SP2. During this period, it would have continued to incur costs falling within components (a), (d) and (e) which are described in the earlier section entitled background to delay costs. In my view, to establish that the pre-agreed delay costs for EOT's were penal, it would have been necessary for the Principal to prove on the balance of probabilities that the application of the pre-agreed rate for SP2 to the EOT 27 delay costs was extravagant or unconscionable. This would have at least required some factual evidence detailing Abigroup's site establishment together with opinion evidence quantifying Abigroup's likely costs in the period of the extended duration resulting from the EOT 27 delays. Such estimated costs could then be compared to the delay cost entitlement calculated using the pre-agreed rates in the contract. This the Principal has not done."

There is no manifest error of law in this reasoning. It is essentially constituted by findings of fact as to the effect of the evidence.

61 It cannot be said that the Arbitrator was bound to find as a fact that the imposition of delay costs with respect to EOT 27 or any other EOT resulted in the payment of a "penalty".

In summary the Arbitrator's conclusions as to the construction of the contract and in particular the application of cl.36 relating to delay costs in the circumstances of the case before him does not demonstrate that he proceeded on principles which were wrong in law.[22]

It cannot be said that the interpretation adopted by the Arbitrator was not reasonably open to him. Accordingly, it should not be disturbed.[23] Likewise the Arbitrator's views as to whether the delay costs so calculated, amounted to a penalty, were also reasonably open to him and disclose no manifest error of law.

62 To adapt the words of Knox CJ and Gavan Duffy J in Melbourne Harbour Trust Commissioners v Hancock: [24] "... on a consideration of all the terms of the contract and the nature and extent of the work to be done under it ..." the Arbitrator applied the provisions of the contract in a way which did not alter the fundamental undertakings originally given with respect to delay costs.

The Sixth Ground - That the Arbitrator Fell into Error in Awarding Interest on the Whole of the Uncertified Progress Payment Sum of $711,761 in that He Failed to Reduce the Amount Upon Which Interest Was to be Calculated by $408,000 Representing the Crane Based Variation Claim

63 The plaintiffs seek leave under both s.38(5)(b)(i) and (ii) of the Act.

64 The point raised was not identified in the material initially filed in support of the application for leave to appeal. In consequence, the plaintiffs also seek leave pursuant to r.4.11(3) of order 4 chapter 2 of the RSC to amend their grounds of appeal.

65 It seems to me that this latter application is more properly characterised as one to waive the requirements of r.4.07 which requires that within seven days after filing the originating motion, an applicant for leave to appeal shall file an affidavit in support of the application for leave to appeal. The rule requires that the affidavit set out the grounds of the proposed notice of appeal, and exhibit a copy of the proposed notice of appeal. The application to amend is in substance directed to the adequacy of the affidavit in support. There is as yet no notice of appeal and r.4.11 does not in strictness apply.

66 Written notice of the application for leave to amend the notice of appeal was given on 7 June 2006. There is no question that Abigroup has had adequate opportunity to respond to it. The relevant r.4.07 affidavit was filed on 8 December 2005.

67 The ground in issue relates to the Arbitrator's determination to award interest in respect of uncertified progress claim No. 29 in the sum of $711,761 from 3 March 2003 up until the time of any subsequent event which supplanted the entitlement.

68 There is affidavit evidence that there was some confusion on the part of the plaintiffs' legal advisers as to whether the point in issue arose as a result of the Arbitrator's first interim award of 3 November 2005 (being the subject of this proceeding) or his second interim award of 13 January 2006.

69 On 23 June 2006 Byrne J refused leave to extend time to appeal against the second interim award, finding first, that there was no evidence satisfactorily explaining the delay in making the application, and secondly, that the point had no prospects of success.

70 His Honour also observed that there was some force in the contention of Abigroup that the point in issue arose from the decision on the first interim award.

71 In my view the explanation for the relatively long delay in raising the point now raised in this proceeding is also less than satisfactory. Nevertheless it is the prospects of success which I regard as critical.

72 By progress claim No. 29 Abigroup claimed the balance allegedly owing by way of the difference between an adjusted contract sum of $49,031,322 and an amended progress certificate of $48,319,561.

73 It was common ground that the superintendent did not certify this claim. At [524]-[525] the Arbitrator observed:

"Standard forms of Australian building and construction contracts invariably include provision for payment of the contractor by way of progress payments and a final payment. Where there is a contract administrator (certifier), payment claims are assessed and determined by the administrator and entitlements stated in a payment certificate. Payment certificates may be interim or final. Often interim certificates are referred to as progress payment certificates.

Because of the importance of payment claims and certificates to both principal and contractor, the protocol to be followed is often detailed and the contract administrator's task is exacting."

74 Clause 42.1 of the contract (being closely modelled on the AS 2124/AS 4300 standard forms) provided:

"At the times for payment claims or upon completion of the stages of the work under the Contract stated in Annexure Part A and upon the issue of a Certificate of Practical Completion and within the time prescribed by Clause 42.5, the Contractor shall deliver to the Superintendent claims for payment supported by evidence of the amount due to the Contractor and such information as the Superintendent may reasonably require. Claims for payment shall include the value of work carried out by the Contractor in the performance of the Contract to that time together with all amounts then otherwise due to the Contractor arising out of the Contract.

If the time for any payment claim under the preceding paragraph falls due on a day which is Saturday, Sunday, Statutory or Public Holiday the Contractor shall submit the claim either on the day before or next following that date which itself is not a Saturday, Sunday, Statutory or Public Holiday.

If the Contractor submits a payment claim before the time for lodgement of that payment claim, such early lodgement shall not require the Superintendent to issue the payment certificate in respect of that payment claim earlier than would have been the case had the Contractor submitted the payment claim in accordance with the Contract.

Within 14 days of receipt of a claim for payment, the Superintendent shall assess the claim and shall issue to the Principal and to the Contractor a payment certificate stating the amount of the payment which, in the Superintendent's opinion, is to be made by the Principal to the Contractor or by the Contractor to the Principal. The Superintendent shall set out in the certificate the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference. In calculating any amount and assessing claims, the apportionment in the Trade Cost breakdown attached at Schedule 4A must be applied. The Superintendent shall also set out, as applicable, in any payment certificate issued pursuant to Clause 42, the allowances made for -

(a) the value of work carried out by the Contractor in the performance of the Contract to the date of the claim;

(i) the Principal to the Contractor, and

(ii) the Contractor to the Principal;

(c) amounts assessed under Clause 46.4 and not duly disputed;

(d) amounts paid previously under the Contract;

(e) amounts previously deducted for retention moneys pursuant to Annexure Part A; and

(f) retention moneys to be deducted pursuant to Annexure Part A.

arising out of the Contract resulting in the balance due to the Contractor or the Principal, as the case may be.

If the Contractor fails to make a claim for payment under this Clause 42.1, the Superintendent may nevertheless issue a payment certificate and the Principal or the Contractor, as the case may be, shall pay the amount so certified within 14 days of that Certificate.

Subject to the provisions of the Contract, within 28 days of receipt by the Superintendent of a claim for payment or within 14 days of issue by the Superintendent of the Superintendent's payment certificate, whichever is the earlier, and within 14 days of the issue of a Final Certificate, the Principal shall pay to the Contractor or the Contractor shall pay to the Principal, as the case may be, an amount not less than the amount shown in such certificate as due to the Contractor or to the Principal, as the case may be, or if no payment certificate has been issued, the Principal shall pay the amount of the Contractor's claim. A payment made pursuant to this Clause 42.1 shall not prejudice the right of either party to dispute under Clause 47 whether the amount so paid is the amount properly due and payable and on determination (whether under Clause 47 or as otherwise agreed) of the amount so properly due and payable, the Principal or the Contractor, as the case may be, shall be liable to pay the difference between the amount of such payment and the amount so properly due and payable.

Payment of moneys shall not be evidence of the value of work or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only, except as provided under Clause 42.6." [Emphasis added]

75 At [520]-[532] the Arbitrator further recorded that there was no dispute that under the contract a failure by the superintendent to certify a claim gave rise to entitlement to payment. Nor was there any dispute that because of its progressive nature, a contractor's entitlement to be paid the amount certified in a certificate only remained extant until supplanted by a new entitlement on the contractor's part as determined by the payment regime of the particular contract.

76 The Arbitrator then observed at [533]:

"Further, Abigroup submits that, even if a contractor's entitlement to be paid an amount pursuant to a certificate has been extinguished in any of the manners identified in the previous paragraph, a contractor in that position is nevertheless entitled to judgment for interest on the sum so certified over the relevant period during which the contractor was entitled to receive payment of same.[25] This submission, which I accept, appears to be common ground."

It is this apparent common ground which is now in issue.

77 Clause 42.7 of the contract provided for interest on overdue payments as follows:

"If any moneys due to either party remain unpaid after the date upon which or the expiration of the period within which they should have been paid, then interest shall be payable thereon from but excluding the date upon which or the expiration of the period within which they should have been paid to and including the date upon which the moneys are paid. The rate of interest shall be the rate stated in Annexure Part A or if no rate is stated, the rate shall be 18 per cent per annum. Interest shall be compounded at six monthly intervals."

78 Abigroup's entitlement with respect to claim No. 29 was disputed before the Arbitrator by 620 in part on the basis of an alleged variation to the contract and further on the basis of an argument as to estoppel. The Arbitrator rejected the first such argument but accepted the second in part and found that interest should run on the uncertified amount of progress claim No. 29 from 3 May 2003.

79 The amount claimed in progress claim No. 29 included $408,000 with respect to a crane base variation claim, which was disallowed by the Arbitrator.

80 620 contends that Abigroup's entitlement to the progress claim was an interim entitlement only. In addition to the express wording of the contract, 620 relies on the following statements of general principle relating to the nature of progress certificates:

"The basic principle at common law upon which progress certificates are issued is that they represent interim vouchers for the payment of money on account of the final contract price."[26]

"Such claims and payments are, in building contracts in the common form, always intended to be provisional only ... That is to say, they await the day when a final certificate issues, in which the ultimate indebtedness by one party to the other is ascertained and fixed."[27]

81 620 further submits that there is no valid reason why interest should be awarded in respect of that portion of the claim which was ultimately disallowed by the Arbitrator.

82 It is submitted that:

(a) the purpose of an award of interest is to provide compensation for circumstances in which money is outstanding to a party for a period of time; and

(b) such an award is discretionary.

83 In my view the scheme of the contract was clear and Abigroup was entitled to payment of its progress claim and use of the money comprised in such progress claim during the period in issue, notwithstanding its future entitlement to the money was provisional.

84 An award of interest in these circumstances is not intended to punish 620 for the Superintendent's failure to comply with the contract but to compensate Abigroup for being deprived of the use of the progress claim amount during the period in which it was entitled to it.[28]

85 The contractual entitlement in issue may also be seen as discouraging tardiness on the part of the Superintendent.[29]

86 I do not accept that there is no valid reason why interest should be awarded in respect of such a claim. I am fortified in this conclusion firstly, by the principal authority to which the Arbitrator referred (to which I shall return) and secondly, by the views expressed by Byrne J with respect to what is conceded to have been substantially the same point argued before him, in the course of the application for extension of time to seek leave to appeal the second interim award.

87 Byrne J stated:

"I turn then, to the question of the prospects of success. Three points are sought to be made on an appeal in this matter. The first in short, is that the second interim award included an award of interest on the sum of a little more than $700,000. This is an award which depended upon the finding of the arbitrator in the first interim award, that the principal, or the contract administrator, had not issued a certificate in response to progress claim 29. The arbitrator took the view that the consequence of this was that the amount claimed was then due and payable. On that basis, the arbitrator awarded interest on that amount from the date upon which under clause 42, it became due and payable. The sum was not paid by the plaintiff and accordingly, interest has accrued and it is, I am told a substantial sum.

The point taken was that in the first award, the arbitrator analysed claim 29 and determined that some figure of about $300,000 only was allowable. And so the point that is taken by the plaintiff in this case, is that it was inappropriate to award interest on a sum which, in the long term, was found not to be payable. I have been referred to a line of authority commencing with the Queensland case of Daysea v Watpac Australia[30] which stands for this proposition that the duty of the proprietor, the principal, is to pay the amount which was sought in claim 29 without deduction. In the event that it should appear that the claim was wholly or partly unjustified, then an adjustment would be made in due course. This seems to me to be clear from the structure of clause 42 and I see no realistic prospect of the point being the subject of the grant of leave to appeal, let alone the subject of a successful appeal in due course." [citations omitted]

88 In the Daysea case the Queensland Court of Appeal considered an amended form of AS 4300-1995, cl.42.1. This specified that within 14 days of receipt of a claim for payment, the Principal's representative should assess the claim and issue a payment certificate, stating the amount of the payment which was appropriate in the view of the Principal's representative. A claim was made but no certificate issued within 14 days. A purported certificate was issued after 28 days. The Queensland Building Tribunal reasoned that the contract required strict compliance with the certification procedure and therefore the purported certificate was invalid. The District Court took a contrary view but the Court of Appeal upheld the view of the Tribunal.

89 More significantly in the present context, in the interim a final certificate had been issued under the contract, stating no money was payable to the builder with respect to the progress claim and that a sum of liquidated damages was payable to the Principal. Williams JA (with whom Davies JA and MacKenzie J agreed) stated:

"However, a Final Certificate has now issued stating that no money is payable by the respondent to the appellant. It reasserts that liquidated damages in the sum of $408,500 are payable to the Principal. If the amount paid pursuant to the Tribunal judgment was still in the hands of the appellant the Final Certificate would have provided that such sum be paid to the respondent, and that would be binding, at this stage, on the appellant. It follows that the summary judgment order cannot be restored. The position is that the appellant was entitled to the sum of $590,335 until the issue of the Final Certificate on 2 January 2001. In consequence the only relief that the appellant is now entitled to is judgment for interest on that sum over the relevant period."[31] (My emphasis).

90 In Zauner Construction Pty Ltd v No. 2 Pitt Street Pty Ltd[32] Byrne J followed the principle reasoning in Daysea:

"On behalf of the contractor it was argued that it follows from this, and from the default provisions of the fourth paragraph of cl. 42.1, that where the superintendent fails to issue a certificate or where the certificate is issued late, the principal must pay the amount of the claim within the prescribed time. Where no certificate issued, this follows from the terms of the clause. Where the certificate is issued late, it is ineffective so that the same consequence flows. This has been the construction of clauses such as the present cl. 42.1 by the Queensland Court of Appeal[33]; it is consistent with the decision of Rolfe J in New South Wales[34]. If I may respectfully say so, I agree with these analyses and will follow them."

"There is, however, a complication where, following the failure of the superintendent to issue a certificate timeously or at all, a valid certificate is subsequently issued. In the Daysea case[36] a final certificate was issued after an invalid payment certificate. Having concluded that the contractor was entitled to payment of the sum claimed where the payment certificate was invalid because it was late, the Court of Appeal nevertheless refused to give judgment in that sum for, if paid, it would have to be repaid in accordance with the valid final certificate. It follows, equally, that the obligation to pay which arises from a later valid payment certificate will supersede any entitlement for payment of the sum claimed where no valid certificate has issued."

92 In my view the statement in Daysea as to the entitlement to interest in circumstances such as the present case was correct. The point in issue is in my view so plain that leave to appeal must be refused under both s.38(5)(b)(i) and (ii).

Conclusion

93 It follows that the application for leave to appeal should be refused entirely.

[1] [1994] SASC 5197; (1994) 63 SASR 444 at 448 - 449, cited with approval by Dodds-Streeton J in Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275 at [30]. See also BHP Billiton Ltd v Oil Basins Ltd [2006] VSC 402 at [27].

[2] (2004) 20 BCL 36 at 39; [14].

[3] [1998] 1 VR 83 at 89-91.

[4] (1991) 26 NSWLR 203 at 226.

[5] Unreported Victorian Supreme Court decision, 10 February 1995.

[6] [2002] VSCA 113 at [31].

[7] [2000] V Conv R 54-614 at [15].

[8] (1994) 217 ALR 201 at 215.

[9] The plaintiffs' submissions on application for leave to appeal at [9].

[10] Plaintiffs' application for leave to appeal submissions at [112].

[11] (2002) 18 BCL 15, and on appeal (2002) 18 BCL 322.

[12] Dorter and Sharkey Building and construction contracts in Australia (2nd edition); A Bellemore "Must a Superintendent Extend Time?" [2002] 19 BCL 281; A Baron "Role of the contract administrator; breathing new life into the prevention principle' [2003] 10 BCL 334.

[13] (1994) 180 CLR 266

[14] Ibid at 283.

[15] In argument it was conceded that the partes had as a matter of practicality accepted the superintendent's decisions made under this power were fair.

[16] (2006) 22 BCL 92.

[17] Ibid at 120; [660]

[18] Award [462].

[19] He referred to the article by D Byrne QC "The Prolongation Costs Claim" (1988) 4 BCL 181 at 184-192.

[20] [1927] HCA 26; (1927) 39 CLR 570 at 581.

[21] (1923) AC 395.

[22] Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26; (1927) 39 CLR 570 at 581.

[23] Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 at p.744 per Lord Diplock and p.752-753 per Lord Roskill; Re Tiki Village International (1994) 2 Qd R 674 at 677; State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd [2003] VSC 84 at [94].

[24] at 583.

[25] Refer Daysea Pty Ltd v Watpac Australia Pty Ltd (2001) 17 BCL 434 at [31]

[26] Construction Services Civil Pty Ltd v J & N Allen Enterprises Pty Ltd & Anor (1985) 1 BCL 363 at 367.

[27] Re Concrete Constructions Group Pty Ltd (1997) 1 Qd 6.

[28] Cf Batchelor v Bourke [1981] HCA 30; (1981) 148 CLR 448 at 455; Clarke v Foodland Stores Pty Ltd [1993] VicRp 81; (1993) 2 VR 382 at 396-397.

[29] Cf Clarke v Foodland Stores Pty Ltd at 397.

[30] [2001] QCA 49.

[31] Ibid at [31].

[32] (2001) 17 BCL 357 at [17].

[33] Daysea Pty Ltd v Watpac (above).

[34] Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215.

[35] At [18].

[36] At [31].