ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited - [2003] NSWSC 665 - NSWSC 2003 case summary — Zoe

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ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited

[2003] NSWSC 665

Supreme Court of NSW|2003-07-30|Before: Einstein J, Rolfe J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2003-07-30

Before

Einstein J, Rolfe J

Source

Original judgment source is linked above.

Judgment (151 paragraphs)

[1]

For the reasons expressed above, I conclude that, even if the letter of acceptance was an offer by Abigroup to ABB, capable of acceptance by ABB to form a binding agreement, by ABB commencing work, or the roof works, the matters relied upon by Abigroup as particulars of "commencement" do not amount to commencement within the meaning of the letter of intent, so that what I have called the "second limb" of this part of the Abigroup claim fails. [The Court's emphasis]

[2]

Rejection of the offer by the ABB 20 February 1998 letter

[3]

ABB makes a further submission about this part of Abigroup's case, namely, that, if the letter of intent was an offer, Glanville's facsimile letter of 20 February 1998 amounted to a rejection of that offer and, on this analysis, a counter offer by ABB. On the conclusions which I have reached, it is not necessary to consider this submission but I should say, for the sake of completeness, and referring back to the details of Glanville's letter which I have discussed earlier in the report, there can be little doubt that if the letter of intent was an offer capable of acceptance by commencement and if Smith's picking up the drawings on the morning of 20 February 1998, together with the other acts of ABB on that day, relied upon by the defendant, did amount to acceptance, thus concluding a contract, and contrary to the conclusions which I have reached, then the timing of the sending and receipt, by Abigroup, of Glanville's letter, would prevent its operating as a rejection of the offer and as a counter offer. However, given the words of Glanville's letter and, in particular, the express reference in the first numbered paragraph of the letter to ABB's offer being based on the proviso that there are no commercial considerations within the head contract and the Project Related Conditions, if the letter of intent was an offer but the acts of ABB relied upon by Abigroup did not operate to effect acceptance of that offer, then Glanville's letter was a rejection of the offer and constituted a counter offer by ABB to Abigroup . [The Court's emphasis] Ultimate decision 101 I have reached the clear conclusion that the attempt to impugn the findings of the Referee must fail. In the result the submissions of ABB are accepted as correct: · the decisive consideration being the intention of the parties which must be objectively ascertained from the terms of the communications between the parties, the parties were entitled to have the whole of their communications and the whole of the facts examined, which is precisely what occurred in very considerable detail; · the Referee in that very close examination and correctly applying the principles of law requisite to be applied in this area, by reference to the subject matter, the surrounding circumstances, relevant communications between the parties and the standards of reasonable conduct in the known circumstances, reached a finding which is unassailable; namely that the intention of the parties objectively ascertained was not to be bound on 19 February 1998 by any contract [but to the contrary, the parties having prior to and on 19 February 1998 endeavoured to advance negotiations to achieve contractual status, had not by that date, nor later, achieved that status]; · very great significance was attached by the Referee to the exact stances taken by each party through their respective inter partes communications, unassailable findings of fact in this regard being set out in the report in the clearest possible terms; · amongst those findings of fact was a finding that notwithstanding that Abigroup handed the letter of 19 February 1998 over to ABB towards the end of the 19 February 1998 meeting between the parties, it was not possible to treat that communication in isolation from nor as a radical departure from the particular matters which had been discussed at and before the meeting; 102 No material error vitiating the report has been demonstrated. As the Referee put it: "at the end of the meeting [of] 19 February 1998, the parties had advanced their negotiations to a significant point, namely, ABB had been selected as the preferred tenderer but, with numerous (and potentially deal-breaking) matters remaining for discussion and resolution, the point of contract had not been reached". [Report 584] [Mr Bathurst accepted that no consensus had been reached by 19 February - his submission being:

[11]

109 It is very important to appreciate that when a party such as Abigroup might seek to propound a particular contract, the date when the contract is alleged to have been entered into is all important [the more so particularly in a case where that date is said not to be a date when a contract was signed, but to be a date which is discerned from a particular form of conduct (25 February 1998 or any other date of suggested commencement of works by ABB)]. 110 That this level of significance attaches to the date when the contract is alleged to have been entered into is seen in the present case by reference to the importance in assessing the case, of an intensive examination of the communications which had passed between the parties by that particular point in time on the date in question. As will have been seen from the report, the Referee required to examine in very great detail: · each of the matters in respect of which, on his findings, both parties had reached a particular consensus in the negotiations, that consensus being that there was an absolute necessity that agreement be reached upon these matters before either party would be bound in contract; · the exact position which objectively could be seen to have been reached as between the parties, with respect to these matters as at the exact point in time ["the critical moment"] when Abigroup claimed the contract to have been entered into; · whether and if so why, and in what respects, the communications between the parties anterior to the critical moment, could be said to show an objective intent to be bound in contract, as at the critical moment. 111 None of these matters were the subject of examination in the report in relation to the 25 February uplifting of the drawings. These matters turn upon questions of fact which then underpin the ultimate decision which is one of judgment, in terms of the discerning of objective intent. This Court cannot on the occasion of the claim to have the report adopted or rejected, allow to be agitated a matter which was simply, in the way in which Abigroup ultimately elected to run its case at the reference, simply not litigated. 112 It may be convenient to simply add the following: · there was no evidence at all before the Referee as to the precise timing of the 25 February 1998 collection by ABB of the further drawings and of when, if at all, on 25 February 1998, those drawings and their departures or changes from previous drawings inspected by ABB, were examined or noticed by ABB, nor as to what would have been a reasonable time which Abigroup ought to have realised would have been necessary in order for the new drawings to be examined for the purpose of ABB being on notice of the departures; · this was a matter of high significance in any suggestion that the parties could be seen to have objectively intended that they commenced to be bound by an enforceable contract as and from the point in time when ABB did anything at all on 25 February 1998.

[12]

113 As pointed out above, Abigroup could never, in any event, have succeeded before the Referee, even on the situation 3 case, and even if it had put such a case in terms of the contract springing up on 25 February 1998, for the reason that such a case faced [and still faces], an insurmountable obstacle, namely the fact that as the Referee found that, even if the 19 February 1998 letter could be regarded as an offer capable of acceptance, that offer was roundly rejected by the 20 February 1998 response. On the authorities already referred to, the 20 February 1998 response in my view put an end to the 19 February 1998 letter regarded [for present purposes only], as an offer capable until rejected, of being accepted. 114 The only argument put forward by Abigroup in an attempt to outflank, what I have referred to as the insurmountable obstacle comprised by the 20 February 1998 letter of rejection, has no substance whatever. This submission was that if the offer remained open notwithstanding the rejection of the offer, the offeree could still later and notwithstanding its initial rejection of the offer, determine to accept it, and that this was precisely what had happened on the facts before the Referee [cf Brambles Holdings at paragraph 84. One only needs to state the submission to see the difficulties which inhere in it. Against the matrix of fact found by the Referee, it is inconceivable that the Referee could or would have drawn an inference that the parties could be seen to have objectively intended that they would be bound by any contract at all upon ABB's act of uplifting the drawings which were uplifted on the 25th February 1998. Any such inference flew to such an extent in the face of the numerous findings by the Referee earlier referred to in this judgment, as to make the submission one of no weight at all. 115 Such a finding could only be consonant with the parties being held to have objectively intended to bind themselves to a contract, which would involve a radical change in the position which ABB had adopted up to that point in time. 116 The burden of the submission was that the Court should infer from all relevant facts, matters and circumstances [including the events of 19, 20, 24 and 25 February] that the parties objectively intended that for ABB to commence the works: · on 25 February 1998; or · on any later date could only be consonant with its accepting the 19 February 1998 offer still regarded as being open. 117 In my view no such inference was appropriate in the light of the relevant facts, matters and circumstances. Such an inference: · would fly in the face of the findings of fact in terms of the explicit and reasonable and communicated insistence by ABB of its need to sight and on an informed basis determine to be acceptable to it, the sundry documents referred to by the Referee including the sections of the Head Contract document that may be applicable to the subcontract works; · would fly in the face of the findings of fact in terms of the explicit and reasonable and communicated insistence by ABB that the clauses covering the non-negotiable exclusion of consequential losses and a cap on total liability set out in terms in paragraph 2 of the 20 February 1998 response from Mr Glanville, be included as an amendment to clause 8 of the proposed Subcontract; · would fly in the face of the findings of fact in terms of the explicit and reasonable and communicated insistence by ABB that it have clarification of clauses 9.03.02 and 10.11 [cf paragraph 3 of the 20 February 1998 response]; · would mean that the parties must be seen to have objectively intended that ABB, having stipulated for its only agreement qua liquidated damages being to actual costs incurred by Abigroup, subject to a maximum daily rate of damages inclusive of both clauses 10.15 and 10.16, combined at $40,000 per day and capped to a maximum of 10 percent of the subcontract sum [cf paragraph 4 of the 20 February 1998 response] was sub silentio content not to press such a crucial matter; · would mean that the parties must be seen to have objectively intended that ABB [sub silentio] was content not to press a payment schedule including payments linked to milestone achievements. 118 The background context provided powerful indicators against the propriety of the drawing of such an inference. 119 Further problems standing in the way of the drawing of such an inference concern: · the paragraph in the 19 February 1998 letter providing that where work commenced prior to the execution of the subcontract agreement, no moneys would become due and payable until the subcontract agreement had been executed. [see clause 10]. [I note in this regard that Mr Bathurst accepted that these words were "difficult" in the letter [transcript 78]. This provision is indeed one which requires to be carefully weighed against the Abigroup submission placing such significance upon the mere fact of commencement of work. · the difficulty of accepting the Abigroup submission that the net effect of its case in this regard was that time was at large, meaning that the parties must be taken to have accepted that the time for completion would be a reasonable time- a rather extraordinary assumption in the circumstances of the subject, internationally high profile contract being sought to be negotiated. 120 My own view is further that a close examination of the subsequent conduct of the parties confirms that the parties cannot be said to have objectively intended to have entered into a binding contract upon the commencement by ABB of work. The matter is generally dealt with in great detail by the Referee [report 622 et seq]. 121 ABB wrote in a letter to Abigroup of 20 April 1998 that "Abigroup have themselves proposed well over 200 amendments to the standard form"-the Referee making the point that there did not seem to be any issue about that. The Referee found [Report 630] that:

[14]

· ABB's facsimile of 20 February 1998 referred to Abigroup's letter of intent (in the first paragraph) and stated, in Item 6, that: "Due to Abigroup's very tight schedule for this work, Abigroup will need to provide the Approved For Construction drawings (correct, complete and with no "holds") within two weeks of 20 February 1998. Obviously, the sooner this occurs, the better, because our period of 26 (sic) [The Referee found this was a mistake and should be thirty six weeks] weeks cannot commence until we have received such drawings". · Owen's 23 February 1998 draft reply to ABB's facsimile (Exh. 370) recorded Abigroup's actual state of knowledge - vis. "We are aware of this and anticipate issuing AFC drawings on the 24.02.98". · Abigroup's minutes of the start-up meeting on 24 February 1998 (incorrectly dated 25 February 1998) recorded in Item G.1.2: "AEC committed program, is to be established on-site by 1st May 1998, have the centre section of the roof installed by ??? 1998 and be completed by the 2nd November 1998. All parties are to ensure that these dates do not change". (Abigroup Bundle, Tab 25, page 275). ABB's minutes of the same meeting recorded a discussion in the following terms: "7. Program - 26 weeks on-site (10 weeks prelims) following receipt of AFC drawings". (Abigroup Bundle, Tab 24, page 270). · ABB's notice of delay dated 20 March 1998 (Abigroup Bundle, Tab 35, page 294) stated expressly that the "notification is issued in accordance with the requirements proposed to be incorporated in a formalised Contract Agreement between AEC and Abigroup for these Works". The notice was given because "the information issued to AEC "Approved For Construction" is not sufficient for our originally planned progress …". The reference to "our originally planned progress" could only be a reference to ABB's timeframe for completion based on the receipt of a full set of AFC drawings that were correct, complete and had no holds on them, and not the timeframe stipulated in the letter of intent. Other statements in the letter to the effect that "AEC's tender offer is based upon …" specific characteristics of the AFC drawings and the failure of the drawings provided to ABB to achieve "a character, format, nature and state of completeness that concurs with the basis of AEC's offer" support that construction, as does ABB's statement that "as a direct consequence of the above items AEC has not yet been allowed to progress the works as originally programmed in the offer". The words "in the offer" plainly was a reference to ABB's conditional offer and not to any offer by Abigroup that might be read into the letter of intent. · Abigroup's minutes of various roof co-ordination meetings held subsequently, contain numerous references that show that the parties were proceeding on the basis that there should be a construction period of thirty six weeks commencing from the issue of AFC drawings with a target completion date in early November 1998 (see Item 2.1 in the minutes of roof co-ordination meeting no. 4 held 25 March 1998 in Abigroup Bundle. See Tab 38, page 303 and similar references in minutes of subsequent roof co-ordination meetings in Abigroup Bundle, Tab 44, page 334 ("36 week total duration from issue of AFC drawings"). See also Tab 78, page 452 which states additionally "Abi to advise the start of the 36 week period, not completed at 14/05/98, extended to: … 18/05/98" referring to the ongoing disagreement between the parties as to whether ABB's thirty six week period had commenced to run having regard to the unsatisfactory state of the AFC drawings. See also minutes of the roof co-ordination meeting no. 16 held 11 June 1998 at Abigroup Bundle, Tab 92, page 489, which stated that "Start of the 36 week period, not resolved at site meeting on 02/06/98. However settlement to be the subject to (sic) agreement on a revised fabrication, assembly and erection reprogramming"). These references show that Abigroup never conducted itself on the basis that ABB was bound to complete by the date stipulated in the letter of intent (i.e. "the middle of October 1998") or that the commencement of the construction period was independent of the date of receipt of AFC drawings. · In a facsimile from Owen (for Abigroup) to McDonnell (for ABB) dated 20 April 1998 on the subject of "monthly cash flow" (Abigroup Bundle, Tab 52, page 355) Owen wrote that "We require a copy of your projected monthly cash flow based on your contracted timeframe that is noted in your post tender interview minutes". Reference to Item 7 of the SPTI minutes of 19 February 1998 (at Abigroup Bundle, Tab 16, page 208) shows that the construction period was intended to be thirty six weeks from the issue of AFC drawings. To similar effect, Owen wrote to McDonnell on the same subject on 27 April 1998 (Abigroup Bundle, Tab 57, pages 364-365) that "Your cash flow should reflect all your tendered documentation i.e. $14M contract sum with completion by the 2nd November 1998". Again this was completely inconsistent with the completion date stipulated in the letter of intent. The nine suggested errors 124 Having carefully examined Abigroup's submissions in respect of the so-called nine suggested errors, I have a comfortable feeling of satisfaction not only that the factual issues have been properly explored and considered but also that none of the matters relied upon by Abigroup is seen to vitiate any of the findings of the Referee. 125 It is possible to deal with the suggested errors fairly shortly. The meaning of the acceptance Clause 126 There was no error in the approach taken by the Referee to the words of the Acceptance Clause. That the Referee approached the whole of the 19 February 1998 letter in context as opposed to focusing on and only on the words of the Acceptance Clause, is not a matter for complaint and demonstrates that the Referee was alive to the task at hand - the task of ascertaining the intention of the parties objectively when considered in the light of all the relevant circumstances including this letter, the point in time at which this letter was passed across, the response to the letter and the subsequent conduct. Failing to take account of subsequent conduct 127 It is incorrect to submit that the Referee failed to take any, or any proper, account of the subsequent conduct of the parties in assessing the significance of unresolved contractual issues at the time of ABB's commencement. Subsequent conduct of both parties in these particular circumstances involves so many dealings that both parties are able to point to disparate events consistent with their respective cases. Ultimately the finding is based on all of the evidence. Reasons for concluding that the 19 February letter had no [or insufficient] contractual consequence 128 The Referee did far more than base his finding that Abigroup's letter of 19 February 1998 did not, in the circumstances of the commencement of work by ABB, mean that the parties were bound by a preliminary contract which was enforceable, upon the narrow ground that Abigroup had handed over without comment [and that ABB did not immediately read] the clause concerning acceptance by commencement of work or understand that there was a clause to that effect. There is no substance in this alleged error. Failing to have regard to surrounding circumstances 129 Nor is there any substance at all in this alleged error. The Referee has provided a weighty tome with innumerable references to surrounding circumstances supporting his finding that the parties could not be said to have objectively intended to conclude a binding contract at or by the time the work commenced. Misconstruing words in the Acceptance Clause 130 There is no substance in the submission that the Referee misconstrued the words in the Acceptance Clause referring to acceptance of the terms of "this subcontract" as referring to a formal subcontract to be prepared based upon the amended SC JCC-D 1994 conditions and concluded that the parties could not have intended ABB by commencement to become bound to a subcontract not yet prepared and seen by it. This is a very narrow submission taking no account of the far broader approach taken by the Referee to the context in which the 19 February 1998 letter was handed over and to the parties objective intention seen in the light of all of the relevant facts, matters and circumstances. That the Referee was not forced into the straitjacket of determining the issue by reference only to the Acceptance Clause and/or by reference only to the use in this letter of the words "this subcontract" or "a subcontract" simply demonstrates that he avoided error and not that he erred. Construction influenced by consideration of subjective intent 131 Having carefully scrutinised the report I am comfortably satisfied that the construction by the Referee of the letter of 19th February 1998 is not vitiated by the suggested consideration by the Referee of the subjective intent of the parties. Together with a number of the other causes of complaint, this cause of complaint suffers from the problem that it addresses the wrong question. The matter does not stand or fall on the proper construction of the letter of 19th February 1998, although that construction is of course extremely significant in the scheme of things. What the Referee was about was an endeavour to objectively ascertain the intention of the parties ascertained not only from the terms of the 19 February 1998 letter but ascertained from the whole of the relevant surrounding facts matters and circumstances, importantly in this case requiring that letter to be read in the light of those circumstances. He said as much, from time to time, expressly referring to the need to objectively ascertain the parties' intention. The examination of subjective states of mind was necessary for a variety of other exercises, including determination of the question of credit and the estoppel case, as well of course as the need to reach findings of fact. [See for example the comment by the Referee at 518 that a particular fact concerning a belief issue - put in terms of an inference from a failure to assert a particular belief - "probably goes only to Abigroup's estoppel cases"] It is a delicate task to sift through the reasons in order to examine the substance or lack thereof in the submission that the Referee was influenced in the construction exercise, by the subjective intent of the parties. The carrying out of the task throws up the many occasions when the Referee refers to matters which to use his words were "expressly communicated" between the parties [cf as one only example - Report 317, sub paragraph (f)]. Having carried out that task I am comfortably satisfied that the submission is of no substance. Attaching undue significance to existence of unresolved matters 132 It is incorrect to say that the Referee attached undue significance to the existence of unresolved matters as at 19 February 1998 concerning the terms of a formal subcontract. He is not shown to have erred in his assessment of which matters were and which matters were not objectively speaking, essential to the existence of a binding contract. I am comfortably satisfied that his assessment in this regard has not shown to have been in error, whether in relation to facts or in relation to proper application of principle. Conclusion that 20 February 1998 letter amounted to rejection of offer 133 No error in reaching this conclusion has been demonstrated. Commencement of works date 134 For the reasons given in the report no error has been demonstrated in relation to the finding that ABB did not commence the works on 20 February 1998. The limited terms case 135 I have left until last the need to deal with a matter in respect of which the parties were violently at issue before this Court. It has already been mentioned and concerns ABB's submission that:

[16]

not dealt with in Abigroup's oral submissions before the Court in terms of an attack upon anything the Referee was either said or not to have said to have done in that regard. 136 The matter harks back to paragraph 30 of Abigroup's submissions to this Court and the manner in which Mr Bathurst presented Abigroup's submissions from the bar table during this hearing. 137 The core of the issue relates to whether or not the only case put by Abigroup to the Referee was that the terms of the contract for which it contended: · included as part and parcel of the suggested acceptance of the 19 February 1998 letter of intent, the terms of the " amended SCJCC-D 1994 subcontract" and "the Project Related Conditions of Contract" ["the inclusive terms case"]; or · did not include as part and parcel of such alleged acceptance of the 19 February 1998 letter of intent, the terms of any sub contract so described and of such Project Related Conditions of contract ["the limited terms case"]. 138 It will be seen that paragraph 30 of Abigroup's submissions contends for the limited terms case. 139 A resolution of the issue requires careful attention not only to the pleadings, but also to the submissions put by both parties to the Referee as well as to sections of the report. 140 A particular problem in this regard concerns the many tentacled approach to alternative versions of the contract pursued by Abigroup. The extremely detailed and extremely voluminous submissions from both parties to the Referee required to deal with these sundry versions of the contract and it is possible to find any number of references in those submissions which it may be difficult to thumbnail sketch in terms of which particular version of the contract may there be being addressed. 141 Ultimately I am satisfied that no limited case, at least of the type now sought to be pursued by Abigroup to this Court, was prosecuted before the Referee. 142 There are numerous indicators in this regard: The Pleadings · Paragraph 3.5 of the Report reads as follows:

[20]

There is a further level of difficulty with the letter of intent being characterised as an offer containing the terms of a contract which would be made if that offer was accepted. The terms, on this view of things, must be found in the letter. But, on this part of Abigroup's case, what are the terms ? Those contained in the December 1997 version of the SC-JCC document - the only version which ABB had seen and considered (leaving aside ABB's express requirement to discuss those terms)? The revised version which Abigroup probably was finalising at the very time of the meeting, and which was not sent to ABB until 18 March 1998? What were the relevant contract drawings and specifications which defined the scope of work in this contract ? The drawings referred to in the letter of intent "as per Abigroup transmittal No.164 dated 19/1/98" were not the current tender set and certainly they did not depict the design which was to be found in the AFC drawings issued on 25 February 1998. The three specifications referred to, quite specifically by number and date, in the letter of intent, were superseded versions of those specifications ; was Abigroup truly offering to contract on the basis of these documents? It seems hardly likely. Were these difficulties with drawings and specifications capable of resolution, in a contractual sense, by the description in the opening paragraph of the letter of intent of the work to be done as "all as per the contract drawings, specification and construction schedule as amended from time to time by Abigroup "? (Referee's underlining). Is it suggested that the offer said to be contained in the letter of intent, which was capable of acceptance by commencement, was an offer which, if accepted, would bind ABB to perform varied or amended work for the fixed price? What was the "construction schedule " which the letter of intent offer presumably contemplated binding ABB to, if it started work? The rather crude schedule in Abigroup's original invitation of November 1997? The MUA9TARG programme? The "tendered Programme" referred to at the bottom of page 2 of the letter of intent? It is not possible, in my view, to analyse and resolve such difficulties, especially without the assistance of submissions from the defendant which address them. [emphasis added] · The difficulties before the Referee can be better understood by looking directly at the Contentions Section of the Further Amended Cross Claim where: - paragraph 1 where it pleads an agreement having been entered into on 19th February 1998 which is given an internal dictionary as "the First Agreement"

[31]

" Abigroup did not, and was never required to, identify the terms and conditions of contract arising from the letter of intent, and in particular it did not expressly include or exclude the [SCJCC-D 1994 and Project Related Conditions of Contract]" [MFI D2 paragraph 7 (a)] simply does not treat with the fact that the case was never litigated by Abigroup nor defended by ABB nor treated by the Referee as one pursuing the terms now put forward in Abigroup's paragraph 30. 148 It is appropriate to add that there are a number of references in the written submissions addressed by Abigroup to the Referee which may arguably support this finding. Hence one may find Abigroup submitting: · "in simple terms, Abigroup submits that there is no evidence to suggest that there was any contract agreed that did not include the [Project Related Conditions]" [Submissions paragraph 80 referred to in transcript before this Court at 334]; · "Abigroup subsequently acknowledged to ABB that the GCS sent to ABB at the time of tender were different from those sent at the stage and when the parties were trying to negotiate further in connection with the machinery provisions relevant to the agreement they had made on 19 February 1998" [submissions paragraph 181 referred to in transcript before this Court at 109]; · "The agreement made on 19th February 1998 provided for a payment regime of claim and certificate (items 1,4, 15 and 17 of the Minutes]"[I interpolate consistent with the SCJCC-D] [submissions paragraph 155 referred to in transcript before this Court at 336]. 149 Whilst I accept that these references may have in fact been supportive of Abigroup's responses to ABB written submissions in chief to the Referee dealing with the question of whether or not any agreements were formed on 19 February 1998, and whilst they are not the reason for the above finding, it is fair to say that one cannot find any explicit submission anywhere to the Referee in terms of the contentious paragraph 30. When it is said that a party is bound by the manner in which it litigated its case, this does not permit such a party to hide behind the many possibilities which might, on some view, be said to be able to be extracted from a particularly wide mode of pleading without particulars. Ambush litigation must be very carefully examined and is not conventionally permitted. The matter is regulated not only by the principles earlier set out concerning both the proper approach with respect to Part 72 references sought to be adopted before the Court but also by the elementary principle that parties are bound by the conduct of that case. [I note that in cases to which the overriding purpose Rule, to be found in part 1 of the Supreme Court Rules; would apply, the facilitation of the just, quick and cheap resolution of the real issues in civil proceedings would not permit such ambush litigation]. When not a single submission was put to the Referee in support of the limited contract case, the Court has a reasonable basis for the finding that no such case was litigated. And all of this against a background in which, as the transcript before the Referee discloses, the Referee put the following matter to Abigroup on the second day of the hearing:

[33]

151 The Referee valued the total amount to which ABB is entitled on a quantum meruit basis as $5,701,742.70, which included the amount of $1,855,971 already paid to ABB by Abigroup in progress payments. He stated in his final conclusion that there should be an order made requiring Abigroup to pay ABB the amount of $3,215,771.70 (together with interest). [See R898-R890] Abigroup's submissions 152 Abigroup submits that errors made by the Referee require that his assessment of the quantum meruit be rejected and that a fresh assessment of that claim is required having regard to all of what are submitted as the relevant circumstances. The suggested errors identified in the overview written submissions are: · in fact the value of the work performed by ABB in Abigroup's hands was only $1,823,670.10 [the submission is that notwithstanding this evidence, the Referee concluded that Abigroup should pay all of the reasonable costs incurred by ABB together with an allowance for profit] · the Referee erred by finding as a matter of law, that the only relevant consideration in valuing a quantum meruit claim, was what were the reasonable costs incurred by ABB in performing the work. ABB's submissions 153 ABB submits that Abigroup now seeks to advance a totally new case not advanced before the Referee and which, in significant respects, contradicts the case which Abigroup did advance to the Referee. In this regard the submission is that it is essential to follow the context within which the Referee determined the quantum meruit claim in order to discern that the matter was litigated in fashion such that Abigroup is presently out-of-Court by the way it conducted its case before the Referee. 154 Further ABB advances a number of particular suggested answers to Abigroup's submissions. The Way Forward 155 It seems convenient to: · first deal with the appropriate principles; · secondly examine the principles as found by the Referee; · thirdly treat with the respective stances taken by each party in its submissions to this Court - an exercise which must of necessity examine the complaints made by ABB to the effect that Abigroup is bound by the way in which it litigated the issue before the Referee. The principles Renard Constructions v Minister for Public Works 156 The Referee regarded himself as bound by the decision of the Court of Appeal in Renard Constructions [ME] Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. In that case Meagher JA [with whom Priestley JA at 271 and Handley JA at 283 agreed on this issue] said at page 276:

[40]

"Thus, if the work in question is actual performance of the contemplated contract, begun simply because the contracting process is complex, it may be quite unrealistic to say that the risk of the negotiations coming to nothing falls only on the plaintiff. It may be plausible to say that the plaintiff has taken the risk that there will be no remuneration under the contemplated contract, and that the defendant has borne the risk that if the contract does not materialise there will be an obligation to pay a reasonable sum for work actually done. Although unjust enrichment assumes that there was no express agreement on risk, its application may help to displace an inference which would normally be drawn, namely, that because no contract was agreed there is no obligation to pay ." [1033] [emphasis added] Work partly executed 164 The authors deal with alternate situations: the first being where complete execution of the work contemplated by the parties has materialised and the second being "the more difficult case" where there is not only a failure to conclude an agreement, but the work done does not amount to full execution of what was contemplated as being done under the contract. The case presently before the Court is of course in this second-class. As part of the treatment given by the learned authors to this second-class, they comment on the decision by Sheppard J in Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880. Mason & Carter make the point that in its dealings with Sabemo, a point was reached where the Council was requesting work for which it knew Sabemo expected payment, and the Council came under a duty to say that it would not pay. The authors express the view that "in failing to advise Sabemo that it had no intention of paying, it accepted the benefit of the work and came under an obligation, imposed by the law of restitution, to pay for the work done" [1035] 165 In Brenner v First Artists' Management Pty Limited [1993] 2 VR 221, Byrne J made the following observations: "This will involve proof that the services were not provided as a gift: Pavey's Case, at 227 to 228. Furthermore, it will be necessary for the plaintiff to establish, where a certain event has not occurred, that the services were not provided on the basis that they were not to be paid for unless that event came to pass. In this category will fall cases where a tenderer carries out estimating or other work in response to an invitation to tender for a contract. It is understood in such cases that, in general, the tenderer takes the risk that the tender will be unsuccessful and that, as a consequence, the work will be unrewarded. It may be, however, that, even in such a case, an obligation to pay the tenderer will arise where the contract is not entered into by reason of a change of heart on the part of the proprietor: Sabemo's Case; or where the work done falls outside that normally expected of tenderers : William Lacey's Case; or where the work performed is of particular benefit to the proprietor: British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504." (at page 259) 166 William Lacey (Hounslow) Ltd v Davis [1957] 2 All ER 712 involved generally the following facts: · premises which had been damaged during the Second World War and which the owner was intending to reconstruct. The building scheme proposed that the premises be rebuilt as a shop, with an office floor and residential flats above. · A firm of surveyors was employed by Mr Davis (the defendant) and 3 tenders were obtained (including one from the plaintiff). · Lacey's first tender (9,114 pounds) was based on properly prepared drawings and bills of quantities and was considerably lower than other bids. · Lacey was told that their bid was the lowest and was led to believe that they would receive the contract. · Lacey was asked to calculate the timber and steel requirements (to help obtain necessary licences) - which they did. · Lacey was asked to submit their estimates for the notional reconstruction of the building (ie cost of reconstructing the building to what it was before the war damage) and its pricing schedule on which the tender was based - this was used by the surveyors to negotiate a "permissible amount" (the amount to be obtained from the War Damage Commission to help fund the repair). · Lacey gave an estimate of 7,650 pounds. · The Licence for the scheme was not obtained, upon which Davis proposed to rebuild the premises as a shop with 3 flats above. · War Damage Commission offered a "permissible amount" of 4,970 pounds. · Davis then asked Lacey to submit a revised estimate in accordance with specifications given - the aim being to increase the "permissible amount". · Lacey then undertook a considerable amount of work - and produced a revised estimate of 6,996 pounds. · The War Damage Commission approved the plaintiff's revised tender and increased the "prescribed amount" to 5,776 pounds. · Greer LJ found that the substantial increase was "partly, at least, as a result of the estimates and information provided by the plaintiffs" (at 714). · Later, Davis suggested numerous amendments to the plans and Lacey submitted further estimates. · In a letter, the surveyors informed Lacey that they were hoping to be "able to prepare contracts, etc., for the works really to commence". · After ordering bricks for the reconstruction the builders were told that someone else was to be employed to do the job (in fact, the work was never done, and the building was sold). 167 The holding was that a promise should be implied on the part of the defendant to pay a reasonable sum to the plaintiffs for the services rendered to them in respect of which they claimed remuneration (namely in respect of their work - excluding the work done on their initial tender), because: · the whole of the work fell outside the normal work which a builder, by custom and usage, normally performed gratuitously when invited to tender for the erection of a building; and · the proper inference from the facts was that the work was done under a mutual belief and understanding that the building was being reconstructed and that the plaintiffs were obtaining the contract. 168 Greer LJ distinguished the facts from a situation of providing gratuitous work in the hope of obtaining the contract. His Lordship expressed the following view:

[97]

Abigroup now, in its submissions to the Court, seeks to advance a totally new case which it did not advance to the Referee and, in significant respects, contradicts the case that it did advance to the Referee. The submission is premised on Abigroup's assertion that the Referee misapprehended the relevant legal principles governing the assessment of a quantum meruit, in particular that the Referee should have taken into account all relevant circumstances, including the value of services in Abigroup's hand. Building from that premise, Abigroup submits that this "misapprehension of the legal principles" [Paragraph 109 of Abigroup's submissions] led the Referee into error. The error, so it is submitted, is that the Referee had regard only to the joint report of the experts assessing the value of the quantum meruit claim and that the Referee confined his "only additional analysis" to "differences in opinion of the experts within the report dealing with "quantum meruit" without regard to any of the evidence contained in the other reports" [ Paragraph 110 of Abigroup's submissions]. (It should be noted that it is hardly surprising that the Referee should do so in light of Abigroup's submissions to the Referee, to which reference has been made earlier in paragraph 11 above). Even more startling is Abigroup's submission, made for the first time, that in considering the value of the work and services received in Abigroup's hands, the Referee should have had regard to certain specific pieces of evidence, to be found in another joint report recording the experts' joint assessment of Abigroup's costs of completion of the project, the effect of which, so Abigroup submits, is that the net value to Abigroup of the work performed by ABB was only $1,823,670.10 [Abigroup's submissions paragraphs 113-116]. It takes but a moment to compare the submissions in those paragraphs of Abigroup's submissions to the Court with the submissions Abigroup made to the Referee, to which reference has been made earlier in paragraph 11 above, to see that there is no correspondence whatever between the case now put to the Court and the case Abigroup put to the Referee . Even Abigroup's present submission to the Court, that the value to it of the shop detailing work carried out by Baigent was $193,482, contradicts the submission that Abigroup made to the Referee, which was to the effect that ABB had failed to demonstrate that any part of the costs paid to Baigent had been reasonably incurred and, implicitly, that ABB should not receive anything for that work [ See e.g. Abigroup's submissions in paragraph 517-518 of Abigroup's submissions reproduced in Appendix M].

[98]

In similar vein, Abigroup now submits to the Court that the Referee was in error in failing to have regard to "the amount the parties had actually agreed for that work to be performed" [See paragraph 117 of Abigroup's submissions to the Court]. The submission continues to the effect that Abigroup had led evidence as to the amount that ABB would have been entitled to be paid under the contract, on the assumption that there was a contract, which Abigroup now submits was relevant to the assessment of a quantum meruit calculated on the basis that there was no contract. Implicit in Abigroup's submission that the Referee should have taken that evidence into account, is the unstated submission that the Referee should have accepted the evidence of Abigroup's expert on that question in preference to the evidence of ABB's expert, in circumstances where there was a very wide divergence of opinions as to the amount that may be due to ABB on the assumptions upon which that valuation exercise was undertaken. Again, it takes but a moment to compare Abigroup's submissions to the Court on this issue with the submissions that Abigroup made to the Referee, for it to be apparent that no such submission was made to the Referee . Nor did Abigroup submit to the Referee, and nor does it submit to the Court, that the experts had regard to any of those matters in carrying out their assessment of the value of ABB's quantum meruit claim during the extensive conclave process that had been put in place specifically to enable that issue to be determined." 183 In my view there is substance in the following written submissions put to this Court by ABB: · it was incumbent upon Abigroup to identify in its submissions to the Referee any matters which Abigroup considered should result in the 'ordinary situation' not applying and to identify any evidence that it wished the Referee to take into account in carrying out his assessment. A fortiori, if Abigroup considered that the Referee should disregard the consensus reached by the parties' respective experts following the lengthy conclave process and the basis upon which it was conducted (which the Referee described at Report 857-858). · Abigroup is bound by the way it conducted its case before the Referee, which was as follows: · it submitted that Blunden's assessment should be accepted; · it submitted that ABB had not established that any amount paid to Baigent (the shop drawing subcontractor) was reasonable; · it submitted that the Referee should not allow the items representing the difference between the Radcliffe and Blunden assessments. · Abigroup now, for the first time, submits that the Referee should have taken into account the value of work in Abigroup's hands, assessed at $1,823,670.10, and the 'contract' value of ABB's work assessed at $2,175,869.48, plus $165,434.87 for variations [See paragraph 119 of Abigroup adoption submissions] and, implicitly, that the Referee should have disregarded Radcliffe's assessment, which was substantially higher, although no reasons for doing so have been given. · Abigroup now, for the first time, submits that the Referee should have taken into account unspecified parts of other reports that were specifically directed to different quantification issues raised by other claims and counter claims made by the parties in the proceedings, in circumstances where the experts made no reference to the need to do so and Abigroup did not submit to the Referee that he needed to do so. · although Abigroup's attack on the Referee's report masquerades as an 'error of principle', in fact, no issue of principle is involved. The Referee carefully considered every specific matter that the parties, and Abigroup in particular, submitted was relevant. The Referee carried out the appropriate enquiries and was not misguided in the way he approached the task. 184 ABB further submissions also of substance and adopted are as follows:

[114]

Moreover, the Referee's findings in relation to the course that the job took and the respects in which the circumstances of performance were fundamentally different to those that ABB envisaged in its tender and upon which it had based its original price of $14M, show that the appropriate approach to valuing ABB's claim was to determine the reasonable cost of the work done and the material supplied by ABB having regard to market rates for such work, consistent with what ABB has termed the 'ordinary situation' in paragraph 24 above. That is precisely how the experts approached the task and the basis upon which the Referee, correctly, determined the amount due to ABB. Conclusion on Quantum Meruit 185 At the end of the day Abigroup has failed to establish error vitiating the findings on the quantum meruit claim. Once the Court has, as in the present case, been satisfied that there was no error of principle made by the Referee which can be seen to vitiate his approach, the attempt to involve the Court in a re-agitation of the determination of the disputed questions of fact fails at threshold. 186 I have however been prepared to follow the submissions of both parties into the areas of fact, particularly by reason of the need to do this in order to assess the substance or lack thereof, in the submission by ABB that what Abigroup is seeking to do before this Court is to depart from the way in which it put its case to the Referee. Those ABB submissions are seen to be of substance. It is entirely inappropriate to permit Abigroup which had: · every opportunity, through its participation in the conclave process, to have the experts consider and report upon all matters which should be taken into account in relation to the valuation of ABB's quantum meruit claim; · had every opportunity in making submissions to the Referee, to draw to the Referee's attention the particular evidentiary matters that the Referee should take into account, consistent with the principles that Abigroup submitted should guide the Referee's approach, to now revisit the manner in which it was content to litigate these issues before the Referee. 187 Authorities have already been referred to underpinning the principle which leads not only to the maintenance of fair play, but also to the repression of unnecessary litigation, which principle requires that parties must be bound by the course they deliberately adopt at the trial. In an area not only of a Part 72 reference, but more particularly of the narrow type of issues where very great assistance is received from experts, and where the Referee, with the consensus of the parties, has set in place a regime whereby conclaves of experts take place, all ultimately supervised or regulated by the Referee, the party seeking to revisit the matter and particularly to put submissions, either inconsistent with submissions put to the Referee by that party or worse, never put by that party to the Referee, has in my view a hopeless task in seeking to persuade this Court to now enter that arena. 188 Mr Corsaro SC who addressed the Court on behalf of Abigroup in relation to the quantum claim issue, conceded that no submissions had been addressed by Abigroup to the Referee identifying the several disparate amounts for which Abigroup now contends before the Court, ought to have been the subject of findings by the Referee by way of the "fair market value of the benefit to Abigroup" of particular works. That circumstance speaks volumes in terms of what was and was not on the table being litigated before the Referee. 189 The attempt to sidestep this problem makes the point that the Referee [Report 857] said:

[117]

Both parties' submissions impliedly accept that those components which were agreed to not fall to me for determination or final validation, at least provided that I am satisfied as to the legal principles underlying the agreement" 190 The proposition for which Abigroup contended before this Court was that this excerpt made plain that the Referee posed for himself the task of identifying the legal principles to be applied on the assessment of the quantum meruit claim. 191 This is not exceptional. But what is exceptional is to find at the end of the years of reference including conclaves of experts, not a single word is advanced by Abigroup in the form of a submission that a particular amount and no more should be accepted as proving the value to Abigroup of particular works. To my mind this is a strong indicator that the parties determined through the conclave process to reach and did reach an agreement in accordance with the principle stated in Renard - and the Referee says as much at the foot of Report 856. 192 The submission by Abigroup to this Court was that the Court should remit to the Referee, the question of only now receiving from Abigroup, all the close submissions which it failed to put to him, and which by reference to the mountain of evidence before the Referee and the experts reports, it is suggested may now permit the Referee to apply, what is suggested to have been the "proper" approach to the quantum meruit claim by reference to 'fair value to Abigroup'. Even if the Referee had erred in his approach to principle, the Court would not have acceded to this application, simply on the basis that there must be an end to litigation and that Abigroup, having once had an opportunity to make the submissions which it now seeks to make, has forgone that opportunity. The principles have been set out above. I do not see that Abigroup's approach to the litigation could be said to have been uninformed or naïve - indeed the whole of the approach taken by both parties to this mammoth litigation where they have fought each other to a standstill on every point, appears to be the antithesis of any 'babe in the woods' notion. 193 Finally, to my mind, a refusal to apply the 'fair value to Abigroup' approach was not incorrect in the particular circumstances which here obtained. On the findings of the Referee, the work carried out during the period from 19 February 1998 up until October 1998 involved a complex and interrelated set of factual circumstances explaining the delays to progress and where eighteen circumstances were identified in respect of which the conditions and qualifications upon which ABB had based its tender, were seen not to have been fulfilled. It was clearly open to the Referee to find that the work which had been carried out fell outside that normally expected of tenderers. It was clearly open to the Referee to find that Abigroup bore the risk that if the contract did not materialise, it would be obliged to pay a reasonable sum for work actually done. The application of the principle of unjust enrichment assists in displacing an inference which might normally be drawn, namely, that because no contract was agreed, there was no obligation to pay. All the more so when Abigroup, in the face of the 'no monies will become due…until the subcontract has been executed' clause, proceeded to make payments to ABB. Disparate matters 194 It is possible in conclusion to deal with a number of disparate matters. Profit 195 The Referee did not allow a margin for profit on work not carried out by ABB. 196 It is simply an incorrect statement of principle to put, as Abigroup appears to have, that Renard is authority for the proposition that on a claim for quantum meruit a claimant can only receive costs bare of profit. 197 In my view the following submission by ABB is of substance:

[120]

· Paragraphs 8.1 and 8.2 of Mr Blunden's report [exhibit P5] [referred to and incorporated by reference in footnote 150 of the Referee's report at page 867], shows that the experts were examining this overhead cost - that is, the cost of tendering was $350,995, an overhead cost. It was an overhead cost which was, in the way in which they calculated it, recovered partially as a component of the 10.8 per cent mark-up for overheads and profit which was applied to the value or the cost of the work done up to the time that ABB was terminated. · What it shows, and what the Referee's report shows, is that the experts agreed, in working out what was a reasonable price for the work done, that it was reasonable for the plaintiff to recover in full the overhead costs associated with tendering. No doubt there are various ways in which an appropriate margin for overhead cost and profit can be calculated. What the experts did here, and what the parties did here, was to agree that the total amount of margin should comprise in part a percentage factor and in part a lump sum amount. The lump sum amount was the amount of that incurred overhead cost which was not able to be recovered through the application of the percentage. · In essence, the effect of what the experts concluded in their approach to the matter and which the Referee accepted, was that a contractor in the position of the plaintiff, eight months down the track, would expect to recover that cost in his price. Ultimately whether that is achieved by a higher percentage for profit or what the mix is probably does not matter. But what they were really doing was saying that when you take the costs incurred by ABB in performing the work, ABB is entitled to a margin for overhead and profit and the overhead margin should include as part of it full compensation for the tender costs plus some small uplift for profit. The course of the work 199 The Referee at page 797 found that ABB's requirements were for a set of drawings which were approved by Abigroup and its consultants for construction and had such a level of correctness, completeness, detail and finality that, effectively, the design was complete and fully depicted in the drawings which could be used not only to begin building the structure, but also quickly to order the majority of the steel and also to finish the structure within the tight time frame using those drawings. 200 As Mr Orlov submitted:

[126]

If I can just digress for a moment and deal with this notion that there is some tension between the value to the principal, the value to Abigroup of the steelwork and the cost that ABB incurred in building that steelwork. There are a number of problems with that particular piece of evidence… To price some steelwork on the basis of a completed design is one thing; to fabricate steelwork when you have an incomplete design and the design is being completed while you are detailing and endeavouring to fabricate that steelwork is an entirely different matter. The former takes the advantage of all of the efficiencies that are associated with a completed design. The latter does not. But the fact that there is a difference does not entitle the principal to pay only what would have been payable if the design had been complete right from the start. It was not. So that what the experts agreed was that ABB incurred certain costs which were proper and reasonable and were consistent with market rates for that work in actually carrying out the work in the circumstances in which that work had to be carried out, or in the circumstances under which that work had to be performed. That is a very different situation to a situation where a contractor comes along nine months into the job and he was asked to take over a fully designed job which has been designed, mostly detailed and partly." [Transcript 414-415] 201 At pages 820 to 830 the Referee dealt with the course of the job in relation to the evolution and completion of its design, and there were two strands to that analysis. There was a process of completion of the design which Abigroup's structural engineer, TTW, was undertaking, and that simply involved completing something that it had not completed before either 19 February or 25 February. It involved the iteration of the design between TTW and its peer reviewer in the UK, Buro Happold, who was considering the design and signing off on it and in that process requiring further changes to be made to the design. 202 The Referee at 821 put the matter thus:

[135]

"If your Honour then just links that finding with the finding at the bottom of page 840. This is where the Referee dealt with a submission which raised the question whether ABB had in fact ever received AFC drawings of the appropriate standard: ... I have made findings as to the inapplicability of those criteria and, given the factual findings I have made about the drawings which were provided on 20 February 1998, 25 February 1998, 15 April 1998 and in the September AFC set, it is clear that ABB did not receive a full, complete and proper set of AFC drawings in the state of completeness and finality encapsulated by the phrase "correct, complete and with no holds". [A]t pages 826 to 829 the Referee made detailed findings in relation to the circumstance that the structure was incapable of withstanding construction by any sensibly anticipated method of construction, and the development of that - in fact, your Honour will see in subparagraph (b) on page 826: The design of the structure assumed the roof would get into its final position under zero-gravity conditions. In other words, it was assumed that you could put this structure into space with gravity switched off, and then in its fully erected condition, you switch gravity back on. In that condition the structure was structurally adequate. This was a very complicated space frame type of structure which depended on the interrelationship of various members." [Transcript 438] Plug and unplug 205 I accept as of substance the submission put by Mr Orlov that a careful examination of what Abigroup has been about during a deal of the quantum meruit submissions may be properly described as engaging in the process of plugging and unplugging figures, all of which it is said were before the Referee, in order to arrive at sundry results. This exercise is neither a matter of simple assembly nor for my part, a matter of simplicity in terms of disassembling the same. The problem inheres in the complexity underlying the sundry assessments and reasons therefore in the experts reports. This simply further confirms that Abigroup having been content to accede to the bases underpinning the approaches taken by the respective experts, cannot only now be entitled to move away from this position. Albeit that the Court requested a short schedule thumbnail sketching Abigroup's claims, the Court was not impressed with the document which came forward at last minute [and in a number of ways unexplained, and unparticularised] in the form of schedules, part of MFI D5, but at least it can be said that these submissions were not before the Referee. Steel fabrication 206 A good example of the plug and unplug exercise sought to be undertaken by Abigroup concerns its claim in respect of steel fabrication. In MFI D5 the claim is put as the difference between "Cost [$1,404,341.43]" and" Value [$1,182,932]"-that is to say a difference of $221,409.43. 207 The matter may be examined by reference to exhibit D2 and in particular the first page, which was the first page of a very long spreadsheet which the experts had prepared. This was part of a report which was prepared called "Assessment of Abigroup's costs incurred in the completion of the MUA as a consequence of ABB' termination". The page in question includes the following: Transfield subcontract account

[141]

208 The submissions which Mr Orlov made to this Court which are of substance in relation to this matter were as follows: · The first thing to say about this is that material has not been placed before your Honour, but one can search high and low in the reports and one will not find any reference to these items, or any explanation of these items which would shed further light on what they actually are or how they have been arrived at or what they represent. The experts got together, they worked certain things out, known best to themselves, which was consistent with the conclave process … and then, having reached agreement in relation to these matters, they simply recorded that agreement on this and many other items in this way. So your Honour has in front of you all the material that is available on the subject. · [I]t should be as immediately obvious to your Honour, as it no doubt should have been to the Referee, that one simply takes out a figure which obviously was the value to Abigroup and substitute that figure for another figure which was in another report. That seems to be the burden of the defendant's submission. · This all appears under a heading "Transfield subcontract account". The first entry is a lump sum price based on Baigent detailed drawings issued to Transfield of $4.425. What it appears that Transfield did was to give a lump sum price for all of the steelwork in the then completed shop drawings. · The next item "Less items fabricated by ABB" appears to be a credit back by Transfield for the work which had already been done by ABB, because it appears that the figure of $4.425m included steel which was depicted in the Baigent detailed drawings but which ABB had already fabricated. · The next item is a component where work was not previously detailed, calculated at agreed rates, and that is an item which is then added to the amount payable to Transfield. · There is then a deduction for free issue materials. · Then there is this item - it is a day works item. So that lying behind it, though not tendered, would have been a whole lot of invoices and daily time records and detailed records of the kind that are generated when work is done on a day works basis, which related to this: receipt, checking, rework of ABB defects, and completion of components where partially finished by ABB. · Just going to the last item first, by hypothesis, where ABB had not done the work, it plainly had not incurred a cost in doing it and it plainly had not been paid for it. There cannot possibly be any suggestion that it had been. So that that figure of $407,086, which it is said should be simply deducted and the Referee should simply have credited against ABB, in fact contains a component unstated and unidentified for work which ABB would be entitled to be paid for if it had done it. · It also contains a component relating to the receipt and checking of the steel. That is a cost incurred also in this undifferentiated sum of $407,000 which has nothing to do with anything ABB did but has everything to do with the fact that at a particular point in time Abigroup changed its mind and decided to have Transfield do the work, and it incurred a cost in Transfield looking over that steelwork, receiving it and checking it. Obviously not in its submissions to the Referee, but certainly not in its submissions to your Honour, either in writing or orally, has it been explained why it would be against conscience for ABB to recover compensation for the work that it did without giving credit to Abigroup for a cost that it incurred as a result of its decision to have someone else take over the work. · There is no doubt that, to the extent that this figure of $407,000 includes the rework of ABB's defects, that is a matter which would be relevant to take into account. But whether that figure was $5,000 or $105,000 simply doesn't emerge. What is absolutely clear on the face of this document is that it is not $407,086.90. · If Abigroup considered that the issue had not been taken properly into account by the experts in working out what were the proper and reasonable costs incurred by ABB in carrying out the work at its Tomago fabrication facility, then no doubt they would have tendered the day works records, or the relevant day works records, and no doubt they would have made submissions to the Referee about it. That is, "There was work done on these days and these were the defects, and that cost, whatever it is, hasn't been taken into account in discounting the reasonable cost of performance of the work." Well, they did not do that. · By hypothesis, what the experts did was to consider what are the proper and reasonable costs of carrying out the fabrication work. All of this material was before them. It is quite clear that the material was before both of them because they dealt with it in the context of this report, so that one would expect that the experts would have taken into account, the cost associated with rectifying any defects in assessing what were the proper and reasonable costs incurred by ABB in doing the work. · The Referees report at 864 in the "Summary of Differences" deals with the Tomago Fabrication Facility Costs by identifying the proposition contended for by the plaintiff as $1,404,341.43 and the adjustment or difference contended for by the defendant as "-66,383" · In ABB's submission to the Referee [Appendix L to exhibit MAH 1 of Mr Harrowells Affidavit] is set out the make up of the $1.4 million at page 27. One of the components was: Radcliffe Par No. Blunden Para No. Item Radcliffe Blunden Difference

[143]

· Hence the true comparison, according to the defendant, when you take that figure out, is that the cost of the steelwork was $831,759. That was ABB's cost of the steelwork for which Transfield gave a credit of $1.182m. Your Honour would be forgiven for thinking that that was not a bad deal from Abigroup's point of view, because the figure of $1.182m, which the defendant urges upon your Honour as being a plug-and-play figure that you can simply substitute for the $1.4m, does not include shop detailing expenses. · Now, even if your Honour was to add in the 10.8 per cent margin, that leads to a comparison of $921,589 charged by ABB as the reasonable remuneration for that work and $1.183m which was the credit back by Transfield. If one tries to plug and play with different figures from different reports prepared for different purposes, they are liable to produce an entirely unexpected and wrong result. The suggestion that the Referee should have been left to do so without guidance from the defendant in submissions should simply be rejected out of hand. Submissions as to matters of difference 209 Paragraph 519 of Abigroup's submissions to the Referee drew specific attention to the items which were identified in the submissions of ABB as being matters of difference between these experts. The following paragraph further makes a reference to claims, "which were unresolved in the conclave process". Lampson Crane 210 One of the areas in respect of which Abigroup has contended that the Referee erred concerns this particular crane, apparently the largest such crane in the southern hemisphere. After ABB was required to leave the site it became necessary for the dismantling and removal from the site of the crane. The disagreement between the experts was simply whether the cost of hiring the crane during the period which it took to dismantle it was properly incurred. The matter was dealt with by the Referee at 168 and following. No material error is shown by the Referee. Interestingly it was Abigroup which put the following to the Referee: "The valuation made by Mr Blunden included costs for items that ultimately were of no benefit to Abigroup at all. However, at the time the costs were incurred they would have provided a benefit to the project had, ABB not been terminated" [submissions paragraph 538]

[146]

[I]f I can pose the question this way - if one was to value - and approach it from the point of view of valuing the work in the defendant's hands, upon what basis would it be conscionable for the defendant to come along and say, "Well, now that you have struggled and laboured mightily for eight months under these adverse circumstances and produced these results, I could have got this work done for half the price without taking into account the circumstances under which that work would have to have been performed." [Transcript 441] Glanville/ Lim salary costs 214 No error is shown in the approach taken by the Referee on the claim concerning a salary issued dealing with salaries of Mr Glanville and Mr Lim. The report deals with this matter at 877 and following. 215 In the result, both as a matter of correct application of relevant principle and as a matter of assessment of the respective claims, as well as by reference to the obvious need to hold Abigroup to the way in which the matter was litigated at the reference, the attack seeking to vitiate the report fails. Other matters 216 None of the other matters of detail, the subject of complaint in Abigroup's submissions, were of substance. Claim to Judgment for matters abandoned by ABB 217 Overview submissions in writing were addressed by the parties to the claim by Abigroup that by reason of matters abandoned by ABB in the Third Further Amended Summons on 4 December 2001 [and identified in a letter dated 4 December 2001] the Court should order that there be Judgment for Abigroup. That Judgment is sought in relation to the claim set out in Annexure "A" to the Notice of Motion. 218 During the hearing the Court made plain that this was a matter more appropriate to be addressed following the delivery of the principal judgment and at the same time as submissions will be taken concerning costs. Leave is granted to the parties to treat with this issue on that occasion. Short Minutes of Order 219 The parties are to bring in short minutes of order providing for the adoption of the Report and ancillary relief.

Parties

Applicant/Plaintiff:

ABB Engineering Construction Pty Limited

Respondent/Defendant:

Abigroup Contractors Pty Limited

Cases Cited (45)

CITATION : ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665 HEARING DATE(S) : 16/07/03, 17/07/03, 18/07/03, 21/07/03, 22/07/03, 24/07/03 JUDGMENT DATE : 30 July 2003

CATCHWORDS : Practice and Procedure - Part 72 reference - Application to adopt Referee's report - Application to set aside sections of the report - Principles applicable - Parties bound by conduct of litigation at trial or on reference - Contract - Formation of contract - Ongoing negotiations - Intention to contract - Masters v Cameron classes - Fourth Masters v Cameron class - Whether binding and enforceable subcontract formed between plaintiff and defendant - No formal signed agreement entered into by parties - Works partly completed when defendant claims repudiation of extant contract by plaintiff and purports to terminate such contract - Relevance of prior negotiation and subsequent contract - Objective determination of intention of parties - Admissibility of post contractual conduct - Whether parties arrived at consensus capable of forming a contract - Whether subsequent negotiations supports or mandates inference that parties did not intend to make concluded bargain - Restitution - Recovery on quantum meruit - Principles - Considerations to be taken into account in determination of amount which constitutes in the circumstances, fair and just compensation for benefit or 'enrichment' actually or constructively accepted - Remuneration - Whether calculated at a reasonable rate for work actually done or the fair market value of material supplied - Whether calculated as value to principal of works performed Arbitration Act 1902 Prescribed Progress Payment Act LEGISLATION CITED : Occupational Health & Safety Act Supreme Court Rules (NSW) Trade Practices Act 1974 Abigroup v Peninsula [2001] NSWSC 752 Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Allen v Carbone (1975) 132 CLR 528 Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101 Angelopoulos v Sabatino (1995) 65 SASR 1 Appleby v Johnson (1874) LR 9 CP 158 Astor Properties Pty Ltd v L'Union des Assurance de Paris (1989) 17 NSWLR 483 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317 Ballas v Theophilos (No 2) (1957) 98 CLR 193 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 Baulkham Hills Private Hospital Pty Ltd v G R. Securities Pty Ltd (1986) 40 NSWLR 622 Bolot v Capper (1957) 75 WN (NSW) 316 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 British Steel Corp v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 Brunninghausen v Galvanics (1999) 46 NSWLR 538 B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 Buckley v Bennell Design & Construction Pty Ltd (1978) 140 CLR 1 Buttrose v Versi (Rolfe J, 10 December 1990, unreported) Chloride Batteries of Australia Ltd v Glendale Chemical Products Pty Limited (1988) 17 NSWLR 60 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Coulton v Holcombe (1986) 162 CLR 1 Council of the City of Sydney v Woodward [2000] NSWCA 201 Cumnock No. 1 Colliery Pty Limited v Pacific Power [2002] NSWCA 278 FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Flender (Australia) Pty Ltd v Warman International Ltd [New South Wales Court of Appeal, 18 June 1998, unreported] Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 175 ALR 433 Franks v Berem Constructions Pty Ltd [New South Wales Court of Appeal, 2 December 1998, unreported] GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 Geebung Investments Pty Ltd v Varga Group Investments (No.8) Pty Ltd (1995) 7 BPR 14,551 Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 Godecke v Kirwan (1973) 129 CLR 629 Graham Evans Pty Ltd v Stencraft Pty Ltd (2000) 16 BCL 335 CASES CITED : G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Heysham Properties Pty Ltd v Action Motor Group Pty Ltd (1996) 14 BCL 145 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Homebush Abattoir Corporation v Bermria Pty Limited (1991) 22 NSWLR 605 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 Inland Revenue Commissioners v Raphael [1935] AC 96 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110 Jennings Construction Limited v QH & M Birt Pty Ltd (Supreme Court of New South Wales, Cole J, 16 December 1998, unreported) John R Keith Pty Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2003] NSWCA 74 Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 Masters v Cameron (1954) 91 CLR 353 Najjar v Haines [(1991) BCL 145] Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Renard Constructions (M E) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Peabody Resources Limited v Allco Constructions Pty Ltd [Supreme Court of New South Wales, O'Keefe CJ, 14 March 1994, unreported] Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Limited (appeal) Pobjie Agencies v Vinidex Tubemakers [2000] NSWCA 105 Raguz v Sullivan (2000) 50 NSWLR 236 Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 Rowe v Australian United Steam Navigation Company Limited (1909) 9 CLR 1 Ryan v Textile Clothing & Footwear Union [1996] 2 VR 235 Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corporation (1992) 27 NSWLR 567 Spencer's Pictures Limited v Cosens (1918) 18 SR (NSW) 102 Super Pty Limited v SJP Formwork (Aust) Pty Limited (1992) 29 NSWLR 549 Telstra Corporation Limited v Australis Media Holdings (1997) 24 ACSR 55 Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 Trentham (G Percy) Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 University of Wollongong v Metwally (1984) 158 CLR 447 Walter Construction Group Limited v Walker Corporation Ltd (2001) 47 ATR 48 White Constructions (NT) Pty Ltd v Commonwealth (1990) 7 BCL 193 White v Overland [2001] FCA 1333 William Lacey (Hounslow) Ltd v Davis [1957] 2 All ER 712 PARTIES : ABB Engineering Construction Pty Limited (Plaintiff) Abigroup Contractors Pty Limited (Defendant) FILE NUMBER(S) : SC 55033/98 COUNSEL : Mr B Collins QC, Mr M Orlov (Plaintiff) Mr T Bathurst QC, Mr F Corsaro SC, Mr F Hicks (Defendant) SOLICITORS : Abbott Tout (Plaintiff) Clayton Utz (Defendant)

(i) It would ordinarily be a reason for rejecting the Report if it reveals some error of principle, some absence or excess of jurisdiction or some patent misapprehension of the evidence. Perversity or manifest unreasonableness in fact finding would also ordinarily be a reason for rejecting a Referee's report ( Super at 563 to 564). 35 The Court's discretion to adopt, vary or reject the Referee's report is not constrained in the same way that challenges to arbitral awards are constrained. As Super makes plain, grounds for rejecting a report may include: (a) an error of principle; (b) a patent misapprehension of the evidence; (c) perversity or manifest unreasonableness in fact finding. 36 Super also makes plain that where a complaint about a report involves a question of law, or the application of legal standards to the facts, a proper exercise of the discretion requires a judge to consider and determine that matter afresh. The Principles - Masters v Cameron (1954) 91 CLR 353 and its extension 37 As already indicated, the question as to whether or not the parties entered into a subcontract and if so when, and on what terms, lies at the heart of the proceedings. It is next convenient to briefly examine the relevant principles in relation to this matter. In what follows I adopt the statements of principle to be found in John R Keith Pty Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43. [It is convenient to note that the parties tended before the Referee, as well as before this Court, to refer to what is sometimes termed "the fourth Masters v Cameron class" as "the Baulkham Hills class"]. The following passages are taken from John R Keith at [217]-[238].

Brambles Holdings Ltd v Bathurst City Council (Unreported, 2001, NSWCA, Mason P, Heydon JA and Ipp AJA) was a case in which the "difficulties" of pressing too far the classical theory of contract formation based upon offer and acceptance (see also Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105 per Mason P at paragraph 1). Heydon JA said in that case, whilst considering the principles of the law of contract that: "Offer and acceptance analysis does not work well in various circumstances." [at paragraph 71]

The matter was put in the following terms by the Chief Justice (at 550 and following) with whose reasons for judgment Hope and Mahoney JJA agreed: "…The case involves the objective determination of the intention of the parties from a consideration of a series of communications exchanged by them in the context of their dealings over a period of time. In those circumstances it is both appropriate and necessary to have regard to the commercial circumstances surrounding the exchange of communications and, in particular to the subject matter of those communications : Allen v Carbone (1975) 132 CLR 528 at 531-532. Furthermore, as was noted earlier, it is proper to have regard to communications between the parties subsequent to the date of the alleged contract to the extent to which those communications throw light upon the meaning of the language which is being considered for the purpose of determining whether it expresses an intention one way or the other upon the critical matter. At the least, such subsequent communications will often form part of the context in which the particular exchanges in question are to be evaluated. The position is by no means so clear, however, in connection with internal memoranda… or statements as to subjective intention made by individuals in the course of giving evidence. As it happens, although the learned judge had a good deal of material of this kind put before him at the hearing, it was not particularly helpful even if admissible. In the first place, a great deal of it was equivocal and individual pieces of evidence were contradictory in effect. Some of the persons who participated in the negotiations in question were called to the witness box and vigorously examined as to what was going on inside their minds at particular times. This process in the end principally served to demonstrate what might have been expected to be the case, that is to say, that the witnesses, not being lawyers themselves, were in a state of considerable confusion about the issue that ultimately emerged as determinative of the rights of the parties …….. In so far as acts or statements of the kind referred to, not involving communications between the parties, are claimed to be relevant in a case such as the present upon the ground that they constitute an admission, it seems to me that it will often be necessary to identify with some care the fact which is said to have been admitted. As was noted, there may be cases in which the issue is such that the fact of the subjective state of mind of one or other of the parties is relevant. Normally, however, what is in issue is not their subjective state of mind but their "intention as expressed" (cf Inland Revenue Commissioners v Raphael [1935] AC 96 at 142 per Lord Wright) and caution may need to be exercised in relating the fact which is said to be admitted to the fact which is legally relevant." [emphasis added]

"The offer and acceptance must precisely correspond and any departure from the offer will result in the purported acceptance being ineffective. The position is obvious in relation to a counter offer. However, the rule is a strict one, and is not limited to material deviations from the terms of the offer. Even if it is worded as an acceptance, an acceptance which does not correspond to the offer will normally amount to a counter offer… Acceptance must be unequivocal. This means that the language used by the offeree must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated [ Appleby v Johnson (1874) LR 9 CP 158; Spencer's Pictures Limited v Cosens (1918) 18 SR (NSW) 102; Ballas v Theophilos (No 2) (1957) 98 CLR 193." 39 To the same effect Anson's Law of Contract, 27th edition puts the matter as follows at 38: "If a contract is to be made, the intention of the offeree to accept must be expressed without leaving room for doubt as to the fact of acceptance or as to the coincidence of the terms of the acceptance proposed and those of the offer. These requirements may be summed up in a general rule sometimes called the mirror image rule." Parties bound by the course they deliberately adopt at trial 40 In the light of the vigorous attack by ABB of what is suggested to be an attempt before the Court to reshape its case before the Referee by pressing a case effectively not litigated during the reference hearing, it is convenient to refer to the principles: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." (See University of Wollongong v Metwally (1984) 158 CLR 447 at 483.) 41 In Coulton v Holcombe (1986) 162 CLR 1 at page 7 the matter was put this way: "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the Court of first instance to the appellate Court, tending to reduce the proceedings in the former Court to little more than preliminary skirmish." 42 In Rowe v Australian United Steam Navigation Company Limited (1909) 9 CLR 1 at page 24 Sir Isaac Isaacs said: "… it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial." 43 In White v Overland [2001] FCA 1333 Allsop J said at par [4]: "…in the efficient and proper conduct of civil litigation, even civil litigation hard fought between the parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognizant of what the issues are. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is costly and stressful, though necessary, evil."

44 In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, Heydon JA said: "[26] Fourthly, the conduct of litigation as if it were a card game in which opponent's never see some of each other's cards until the last moment is out of line with modern trends. Those trends were developed because the expense of courts to the public is so great that their use must be made as efficient as is compatible with just conclusions. Civil litigation is too important an activity to be left solely in the hands of those who conduct it." 45 Similarly in Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80, Ipp JA said: [60] "The "cards on the table" approach is now common practice in many jurisdictions…"

"it must have been evident to the Abigroup representatives present at the meeting that these issues involved important contractual policy questions for ABB, ABB's position being that it was not prepared to contract on the basis of exposure to consequential loss or unlimited total damages and required terms (the precise wording of which were to be negotiated) limiting liability and excluding consequential loss to be inserted in any contract into which it might enter. " [report 157] [emphasis added] This then being a finding which was reiterated in relation to the 19 February 1998 meeting, is relied upon by ABB in support of the proposition that there was a very good reason indeed why in this particular circumstance, it was appropriate for the Referee to find that the parties cannot be seen to have objectively intended to have bound themselves to a contract in the absence of ABB's requirement in relation to this matter being first agreed upon in terms of the wording, and of course, tied down in writing. The decisive issue 77 Subject to Abigroup being entitled to rely upon what I have described as it's "situation 3" case, and if so subject to it's being entitled to rely upon a case that the contract sprang into being upon the commencement of work on 25 February, it is put that the decisive issue was the intention of the parties objectively ascertained from the terms of Abigroup's letter of 19 February 1998 and ABB's commencement of the works when considered in the light of the surrounding circumstances, and the subsequent conduct of the parties [GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 per McHugh JA at 634E-F; Brambles Holdings Ltd. Bathurst City Council (2001) 53 NSWLR 153 per Heydon JA at 163.23-164.28 and Trentham (G Percy) Pty Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25 per Steyn LJ, at 27 (adopted by Beaumont J, in dissent, in Foxtel Management Pty Ltd & Ors v. Seven Cable Television Pty Ltd & Ors (2000) 175 ALR 433 at 469.5-470.1; LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited [2003] NSWCA 74; Cumnock No. 1 Colliery Pty Limited v Pacific Power [2002] NSWCA 278]. I accept this submission as of substance. It clearly correctly identifies the decisive issue. The nine suggested errors 78 Abigroup's written submission included that in arriving at his conclusion, the Referee erred in the following nine respects: The meaning of the acceptance Clause

(1985) 2 NSWLR 309

(1975) 132 CLR 528

(2000) 22 WAR 101

(1995) 65 SASR 1

(1989) 17 NSWLR 483

(1988) 18 NSWLR 540

(1957) 98 CLR 193

(1908) 5 CLR 647

(1986) 40 NSWLR 622

(2001) 53 NSWLR 153

(1999) 46 NSWLR 538

(1978) 140 CLR 1

(1988) 17 NSWLR 60

(1982) 149 CLR 337

(1986) 162 CLR 1

(2000) 175 ALR 433

(1973) 129 CLR 629

(1986) 40 NSWLR 631

(1990) 20 NSWLR 310

(1991) 22 NSWLR 605

(1907) 5 CLR 68

(1954) 91 CLR 353

(2001) 53 NSWLR 116

(1992) 26 NSWLR 234

(1987) 162 CLR 221

(2000) 50 NSWLR 236

(1909) 9 CLR 1

(1929) 43 CLR 310

(1992) 27 NSWLR 567

(1992) 29 NSWLR 549

(1990) 3 WAR 486

(1984) 158 CLR 447

(1992) 29 NSWLR 558

(1907) 5 CLR 647

[2000] NSWCA 201

[2002] NSWCA 278

[2003] FCA 50