The conversion claim
286 Turning to the applicant's conversion claim, I am satisfied that property of the applicant was converted by the respondent to its own use by intentionally interfering with the applicant's right to immediate possession thereof.
287 In relation to the conversion claim it will be necessary to consider what, if any, implied right of usage was conferred by the applicant on the respondent in relation to formwork that had been put in place and utilised prior to the respondent's termination of the formwork subcontract for its sole convenience, given the nature of the works being undertaken with that formwork in place. Presumably, a licence was conferred by the applicant on the respondent allowing the continued use by it of formwork that was in place where steelwork and concrete had been placed thereon or within it, until such time as the relevant concrete had cured sufficiently to permit the safe removal of the formwork, without prejudicing the integrity of the structure.
288 It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract (per Griffith CJ in Butt v M'Donald [1896] 7 Q.L.J. 68 at 70-71). (See also Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited (1979) 144 CLR 596 at 607; Fitzgerald v F.J. Leonhardt Pty Limited (1997) 189 CLR 215 at 219 and Australis Media Holdings Pty Limited v Telstra Corporation Limited (1998) 43 NSWLR 104 at 123-125.)
289 Terms may be implied in a contract in one of four ways (per Heydon JA, as his Honour then was, in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 164 [28]). These were summarised by Hodgson J in Carlton & United Breweries Ltd v Tooth & Co Ltd (unreported, Supreme Court of New South Wales, 11 June 1985) as follows:
'(i) Implications contained in the express words of the contract: see Marcus Clarke (Vic) Ltd v Brown (1928) 40 CLR 540 at 553-4.
(ii) Implications from the "nature of the contract itself" as expressed in the words of the contract: see Liverpool City Council v Irwin [1977] AC 239.
(iii) Implications from usage (for example, mercantile contracts).
(iv) Implications from considerations of business efficacy: see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26 [see now (1977) 180 CLR 266]; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.'
290 In relation to the fourth mentioned type of implied term the classic test is identified in the advice of Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel in B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 at 283 as follows:
'… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.'
The test promulgated by the Privy Council was approved by Mason J in Codelfa.
291 In my opinion the nature of the formwork subcontract and notions of business efficacy would lead to the implication of a term denying the applicant the right to remove construction plant and temporary work following the termination of the subcontract for the respondent's sole convenience if the relevant formwork was then supporting recently poured reinforced concrete members. In my opinion a term is to be implied in the contract allowing the respondent the benefit of the use of such formwork following a termination of the subcontract by it for its sole convenience until sufficient time has passed to allow the concrete to cure.
In the circumstances of this case, that time would be no more than two weeks after the date of the relevant concrete pour.
292 Apart from the implication of such a term, clause 39.13(a)(iii) of the formwork subcontract clearly contemplated that, in the event of a termination forthwith for the respondent's sole convenience, such as occurred on 17 May 2002, the applicant, as the former subcontractor, would have the right to enter upon the site and effect the desired removal of Temporary Works and Construction Plant and other things used in the Work under Subcontract, visiting the reasonable costs of that removal on the respondent. The express reference to the removal of 'Temporary Works and Construction Plant' from the site clearly included the stripping of existing and incomplete formwork and the removal of the relevant appliances and things used in carrying out the work under the formwork subcontract.
293 The formwork subcontract for a development such as the Woodside Building project was clearly an important one. However, unlike most subcontracts, its performance did not directly enhance the buildings under construction. It simply provided the platform for reinforced concrete members to be put in place by others. As Mr Bell explained:
'We don't pour. We only do the formwork. There are other trades that work in conjunction with the formwork. We only provide the formwork for the suspended slabs or for vertical elements, walls or columns. We don't do the edge form on the ground. The ground slabs are poured by somebody else … so we do formwork for vertical elements like columns and walls or suspended formwork for the slabs, and so we provide that formwork.'
294 In the course of his evidence in chief Mr Bell was asked to describe, in practical terms, what was involved in the formwork activity. He gave the following evidence:
Senior counsel for the respondent:
'… just describe the stages that are gone through when the workmen are doing the formwork?'
Bell: 'I will just describe the suspended slab because that is where the most work is done. What we normally do is we have a set of scaffold frames that are assembled …'
Counsel: '… what is a scaffold frame?'
Bell: 'A scaffold frame is the steel support structure that we then put timber bearers on top of, so we erect the scaffold framework in a grid that fits between the beams and then we put timber bearers on top of that scaffold. The timber bearers are then levelled to a height and then on top of the bearers … we will put some more timber across and then we put plywood on top of that.'
Counsel: '… what happens then?'
Bell: 'Well, in the between time we form the beams and we finish the beams off, connect it all together and then it is ready for the reinforcers to come and put their steel beams in, the reo in.'
Counsel: '… does constructing formwork involve a number of different skills or specialisations?'
Bell: 'Predominantly the way it is handled is we have scaffolders and some labourers will install the scaffold framework. Then you will have carpenters who will install the bearers assisted by some labourers and then carpenters will install the deck assisted by some labourers.'
…
His Honour: 'So you have scaffolders, labourers and carpenters?'
Bell: 'Labourers - correct. That is the form of the team and as we complete the job, we also had some plasterers as we are finishing, who would come and just patch up at the end.'
Counsel: 'Do these roles change at all through the progress of the job?'
Bell: 'The roles change with the element that you are forming. You might have a higher involvement from one trade in a different element, but generally they go through the job - for example, it would have changed - it did change when we went to table formwork because I designed a system to reduce the repetitive fabrication of scaffold. I designed a table-form system, so that whole scaffold framework we could break down into modules and it was all then just reduced in height and moved as a complete unit to the next floor, so we weren't reassembling it every time.'
…
His Honour: 'Did you get to use your table-form system?'
Bell: 'Yes, we did, only … when we got into the typical floors above the ground floor.'
His Honour: 'When you left the site, how far progressed was the building?'
Bell: 'We were up to level 8. We had done - the typical floors were from level 3, I think it was - 3, 4, 5, 6, 7 and 8. So we had four or five typical floors that we used the table forms on.'
Counsel: 'Are the typical floors the ones, in effect, above the ground?'
Bell: 'Correct. The typical floors are the same, so we can use a repetitive formwork system.'
Counsel: 'So is there some difference in the complexity and load of work depending on whether it is, in effect, aboveground or belowground?'
Bell: 'It is because it is all built piece by piece below the ground as stick formwork. We take every piece apart and we put every piece back together, whereas when we get onto the typical floors, we use the table-form systems and we could move them in bulk.'
Counsel: 'So it is fair to say that the harder part of the work is …
Bell: 'In the bottom.'
Counsel: '… where you are using the stick formwork?'
Bell: 'Absolutely.'
…
Counsel: 'What do you call what you have described as the table?'
Bell: '… That is described as table form. It is a system where you take large components of the formwork as a whole and you move them as a whole.'
Counsel: 'When you say "components of the formwork", what comprises the components?'
Bell: 'In the normal formwork system, you start off with … - you would have a jacking part of (sic) the floor, you would have a scaffold frame on top of that. You would have a brace that braces the scaffold frame, then you might have - normally for the height, you will have another scaffold frame goes on top of that and then you will have braces there and then you will have your screw heads on top which are adjustable for the height of your bearers and then you will have your timber bearers go in the top of the screw heads. That is just your formwork system and then your plywood goes on top of that.'
295 Mr Bell proceeded to describe self-climbing safety screens which were used around the perimeter of the building as the formwork progressed. The screens surrounded three floor levels at the one time providing protection to the workers engaged on a 'working deck, a stripping deck and a completed deck'.
296 Mr Bell resigned on or about 10 May 2002. His recollection was that it was around Easter but he conceded that if in a statement he had suggested 10 May 2002, that was probably correct.
297 Mr Anderson gave the following evidence in chief:
Senior counsel for the applicant:
'… it's … your understanding and indeed to your knowledge, the case that there was a substantial amount of plant and equipment and chattels on the site, employed and installed … as at 17 May 2002?'
Anderson: 'That's correct, yes.'
Counsel: 'Did you give any permission to anybody at Baulderstone Hornibrook, to continue to use that plant and equipment after they had purported to terminate the contract?'
Anderson: 'No. I did not.'
Counsel: 'Did you authorise anybody else to do so?'
Anderson: 'No.'
Counsel: 'To your knowledge, did Baulderstone Hornibrook, or somebody under their direction, continue to make use for their own purposes in the project of that plant and equipment?'
Anderson: 'Yes, they did.'
Counsel: 'Was that without your consent?'
Anderson: 'Without my consent, yes.''
Counsel: 'Was the plant and equipment that was on site, as at 17 May 2002, ever returned or restored to the possession of Anderson Formrite?'
Anderson: 'No.'
Counsel: 'Was some of the plant and equipment, in fact plant and equipment which Anderson Formrite had, itself, hired from third parties?'
Anderson: 'We had purchased it from a third party.'
Counsel: '… and you have, I think, invoices and other documents relating to those acquisitions?'
Anderson: 'Yes.'
298 Mr Anderson gave evidence that he had not personally ever 'put the helmet on' and physically gone upon the site. He had however, been to the site office.
299 Whilst Mr Anderson said that he did not authorise anybody to give permission to the respondent to continue to use the applicant's plant and equipment after 17 May 2002, and I accept that he may not have expressly authorised anybody to give any such permission to the respondent, nevertheless, in my view, he clearly cloaked Mr Passione with authority to deal with matters such as the hire arrangements in respect of plant and equipment that had been used by the applicant up to 17 May 2002 in such manner as he may have seen fit.
The applicant, through Mr Passione, invited the respondent to pick up the leases of hired equipment which the applicant sought to terminate effective 17 May 2002.
300 Mr Anderson's evidence in chief continued with the following:
Senior counsel for the applicant:
'… was it your understanding at the date of the letter of 21 May 2002 … that despite the letter of 17 May 2002, Baulderstone Hornibrook were continuing to use the plant equipment, the tools, the ply, the true-form and the table-form systems, the screens, hoists and hire equipment, without the consent of Anderson Formrite?''
Anderson: 'Yes, that is correct. They locked us out of the site..'
Counsel: '… Were you told something in relation to the exclusion of Anderson Formrite from the site or did you witness something yourself?'
Anderson: 'I was told by Joe - Mr Passione that they - we attempted to go and pick up our equipment and we were locked out of the site and in fact it got quite nasty. There was security guards and Mr Passione was threatened and we just couldn't get in there to get our equipment.'
301 In the course of his cross-examination further evidence was given by Mr Anderson in relation to the events surrounding 17 May 2002 as follows:
Senior counsel for the respondent:
'As at … 17 May 2002, Anderson Formrite had entered into a number of agreements for the hire of equipment on the site, or to be used on site?'
Anderson: 'Yes.'
Counsel: 'As at that date, 17 May 2002, Anderson Formrite were in default in respect of their hire agreements related to equipment on the site?'
Anderson: 'Yes. That's correct.'
Counsel: '… from the commencement or shortly thereafter through until 17 May 2002 - Anderson Formrite had a series of problems with the supplier of its formworking equipment, RMD, didn't it?'
Anderson: 'Specifically, I wasn't involved in it, but yes, I was on the understanding that there was a problem with the formwork equipment.'
302 As to what transpired on 17 May 2002, Mr Passione gave the following evidence, which I accept:
Senior counsel for the applicant:
'… did there come to your attention a notice, dated 17 May 2002 …
that came to your attention on or about the date appearing on it, namely, 17 May 2002. Is that right?''
Passione: 'Yes.'
Counsel: 'Where were you on that day?'
Passione: 'On site.''
…
Counsel: 'before you became aware of the termination document, did you have occasion to speak to Mr Beckett [Mr Beckett was the respondent's site manager], on the site?'
Passione: 'On this day?'
Counsel: 'On that day?'
Passione: 'Yes.'
Counsel: 'Was Mr Beckett accompanied by some gentlemen who appeared to be security guards?'
Passione: 'Yes.'
Counsel: 'They came into the site office?'
Passione: 'Yes.'
Counsel: 'What did Mr Beckett say to you?'
Passione: 'He said, Your contract has been terminated. You must leave the site immediately.'
Counsel: '… was there a discussion about removing personal belongings and the like, from the site office?''
Passione: 'Yes, he gave us the opportunity to move computers and files and some personal belongings. At the same time I received a phone call from the Malaga office, advising me receipt of this notice by fax.'
Counsel: '… who else on behalf of Anderson Formrite was in the office premises at the time Mr Beckett told you the contract had been terminated?'
Passione: 'Peter Mackiewicz and Gordon Bell.'
Counsel: '… did each of those have the opportunity to remove their computers and files and personal belongings and the like and all three of you … with those items then left the site. Is that right?'
Passione: 'Yes.'
Counsel: 'Did you go back the next day?' [referring to Saturday 18 May 2002]
Passione: 'Yes.'
Counsel: 'Who did you see?'
Passione: 'Mr McIlwaine.'
Counsel: 'Did he say anything?'
Passione: 'Yes.'
Counsel: 'What did he say?'
Passione: 'He said, You cannot enter the site, wait here and I will call management.'
His Honour: '… At this stage, had Mr Fletcher gone following his firing?'
Passione: 'I believe so.'
His Honour: '… as you understood it, what was the pecking order for Baulderstone management, in relation to this project at St Georges Terrace, at the time of the notice of 17 May 2002?'
Passione: 'I had been informed that Paul Watson was also fired. I don't know who replaced him. So my understanding was a gentleman by the name of [Walkenhorst], was the project director.'
…
His Honour: 'Was there anyone senior to him, from Baulderstone, working in Perth at that time?'
Passione: 'Not working in Perth. Joe Van Engelen was still around, but I could never understand where he fitted in the pecking order, because he had one of the most strangest roles that I have come across. …. [Grant] Beckett was still on site, so he would have been answering - in my opinion answering to Walkenhorst. McIlwaine was still on site. He would have been answering to Walkenhorst also.'
His Honour: '… I was trying to find out who you would contact, if you needed to speak to management? Did you go to the top person every time, or was there someone within the hierarchy whom you were accustomed to deal with?'
Passione: '[Grant] Beckett … Tony Fletcher. … I do not recall that I ever went to Paul Watson or Joe Van Engelen. They called me. I have no recollection of me ever going to them.'
…
His Honour: 'Did you speak to anyone in management pretty well every day?'
Passione: 'Grant Beckett.'
His Honour: '… so was he your immediate point of day-to-day contact?'
Passione: 'Yes.''
…
Counsel: '… I think when you had returned to the site on the next day, after 17 May, Mr McIlwaine, when you met him, said he was going to call the site manager. … Did somebody come out to the entry to the site where you were waiting and meet you?'
Passione: 'Yes.'
Counsel: 'Who was it?'
Passione: 'Mr Walkenhorst and Grant Beckett … I handed them a letter … instructing them not to use our equipment and material. I conveyed that by saying, "You are not authorised to use our equipment and material."'
Counsel: 'Who did you say that to?'
Passione: 'Mr Walkenhorst.'
…
Counsel: 'Did Mr Walkenhorst or … Mr Beckett say anything in response to your oral statement dealing with the same subject as your letter?'
Passione: 'No. … They made no comment in relation to what I said. Prior to what I said Mr Walkenhorst said, "You are not authorised to enter the site?'
Counsel: 'So that Mr Walkenhorst had told you that before you made the statement to him and handed over the letter …?'
Passione: 'Yes.'
…
Counsel: 'What happened then?'
Passione: 'I remained on site for a short period - off - adjacent to the site on the footpath and I walked around the perimeter of the site on the road reserve.'
Counsel: '… What did you see?'
Passione: 'I observed that our workforce was on site working and that all our material and equipment and plant that was on site was being used.'
…
His Honour: 'What hour of the day was it you walked around the footpath and observed the men working on the site?'
Passione: 'Very early in the day and my recollection is at 8 am.'
…
His Honour: 'So about 8 am on the 18th you handed over the letter. You walked around the site. You observed men who had previously been working for you working. At 11.27 am or thereabouts you received a facsimile from Mr McIlwaine telling you that a number of men had tendered their resignations to you with effect from 4 o'clock on the previous afternoon?'
Passione: 'Yes.'
…
Counsel: '… what did you see?''
Passione: 'I saw our entire [t]able form system on site; the screens, our formwork, ply, Truform; all our hired equipment of Rapidshor; framework; our tools, hand tools being used.'
…
His Honour: '… the building is at this stage how many levels out of the ground into the tower?'
Passione: 'Five, six.'
His Honour: '… I need to know where the men were working in relation to what you could see?'
Passione: 'The table forms were at five and six, so you could clearly see the table forms. The majority of the table forms were in place, not being used but were still in place. There was work being undertaken in the north and west building on site. The screens were visible from the outside, they were on the perimeter of the building. … The tables were on the fourth to sixth floor, somewhere around there. You could observe them by walking the perimeter of the building, this site had three street frontages, so it basically was St Georges Terrace, Milligan Street, Hay Street.'
His Honour: '… Well, keep going with your description about where you saw this equipment being used?'
Passione: 'The tables were in place, the screens were in place as you viewed the perimeter of the building. In the north and west building, which was on the Hay Street end and not part of the tower, you could see a lot of the formwork material being the ply, ply to framework.'
His Honour: 'Was that stick formwork or table form?'
Passione: 'Stick.'
His Honour: 'Is that just the leftover from the most recent pour or do you say they were working on it, using it?''
Passione: 'Working on it. Using it.'
His Honour: 'In what way?'
Passione: 'Erecting scaffolding and preparing to erect the ply on top of the framework.'
Counsel: 'Was there anything else you observed about the plant and equipment on the site at the time or the activities going on?'
Passione: 'Just observed that it was all there being used.'
Counsel: '… Now, did you return to the site following that particular occasion, 18 March?'
Passione: 'Yes.'
Counsel: 'When did you next go back?'
Passione: 'Approximately a week later. I was returning to site on a regular basis, on a weekly basis to just observe and monitor what was happening.'
Counsel: 'Well, what did you see on the next occasion when you went to the site?'
Passione: 'Very much the same that I saw on the Saturday; all materials still on site and men working away and continuing to use it.'
…
His Honour: ' you went around the site or went on site?'
Passione: '… after May 17, I never returned on the property side of the site. ..'
Counsel: ' So from what vantage point did you make these observations?'
Passione: 'From the street verge, the road reserve and walking the perimeter of the building outside the legal boundaries of the property.'
Counsel: 'On each occasion, did you see work was continuing to be carried on?'
Passione: 'Yes.'
Counsel: 'That the plant and equipment that had been left on the site and was installed on the site when the contract was terminated on 17 May, was still being deployed?'
Passione: 'Yes.'
(emphasis added)
303 Mr Passione was cross-examined about what he could see from outside the site in the period commencing on 18 May 2002. His evidence included:
Senior Counsel for the respondent:
'You could not see each and every one of the elements of the stick formwork that was on the site from outside of the site, could you?'
Passione: 'No.'
His Honour: 'Was any stick formwork still in place or had all that work been done?'
Passione: 'No, no, there was still - obviously still a lot of loose stuff and stacked. But there was still a lot of stick formwork to be completed.'
His Honour: 'So that there were areas that needed to be formed up …?'
Passione: 'Yes.'
His Honour: '… which required stick formwork which hadn't been done?'
Passione: 'Correct.'
…
Counsel: 'You could not see from outside the perimeter fence and buildings that made up the perimeter all of the equipment that Anderson Formrite had used on the site during any inspection on the 18th, could you?'
Passione: 'No.'
Counsel: 'So you couldn't say whether particular equipment was being used or not used on the occasion of that inspection?
Passione: 'No, but I can say that formworkers that were our - previously employed by us were on the site, were working, were using equipment and that Baulderstone is - only Baulderstone are capable of removing any equipment from site.'
Counsel: 'Well, Baulderstone also had equipment which men could use on the site itself, didn't it?'
Passione: 'Not for formwork.'
Counsel: 'It had things like saws and the like, didn't it?'
Passione: 'Unlikely.'
Counsel: 'Well, you don't know, do you, Mr Passione, what equipment Baulderstone had on the site that could be used by men as at 18 May 2002?'
Passione: 'No, but I can tell you what equipment was being used and that was our equipment.'
Counsel: '… You couldn't see into each of the floors in respect of which work was going on as at 18 May, could you?'
Passione: 'No.'
Counsel: 'So you couldn't see parts of each floor. So you wouldn't know what was going on at that part of the floor?'
Passione: 'No.'
Counsel: 'Some of the equipment that when you last saw it that Anderson Formrite had taken onto the site was in situ because it had been erected by Anderson Formrite and was performing the work of formwork at the time you left. That is right?'
Passione: 'Some, some, yes.'
Counsel: It was incorporated into the works … as formwork is intended to be incorporated for a period of time?
Passione: 'Yes.'
…
Counsel: 'Now, the various pieces of equipment were from time to time stored on the site, weren't they?'
Passione: 'Yes.'
Counsel: 'They might be at any number of places on the site?'
Passione: 'Yes.'
Counsel: 'You couldn't see on 18 May whether all of that equipment that was stored was still in its stored position or not, could you?'
Passione: 'No, but can I put it to you that when I was - off the site I wasn't able to, you know, put it in my briefcase or stick it under my arm and take it with me. It was on site when we left. Only Baulderstone are capable of removing that gear. No other party. You need the cranes.'
…
Counsel: 'The plywood that had been provided to the site up to 17 May had been used for a range of purposes, hadn't it?'
Passione: 'Had been used for formwork purposes.'
Counsel: 'But that encompasses a range of different parts of the formwork, doesn't it?'
Passione: 'Yes.'
Counsel: 'Plywood can be used as whole sheets … for formwork?'.
Passione: 'Yes.'
Counsel: 'Or it can be cut into specific sizes for specific parts of the formwork?'
Passione: 'Yes.'
Counsel: 'Once the plywood is put in place and the concrete poured on top of it, it has to remain until it can be stripped out?'
Passione: 'In approximately seven days, yes.'
Counsel: 'But it has to remain a period of time?'
Passione: 'Yes.'
Counsel: 'It might vary, as you told us earlier in your evidence. That is right?'
Passione: 'Yes.'.
His Honour: '…When you got to the typical floors which you were at as at 17 May … were you at the same time still working on stick form formwork in other places?'
Passione: 'Yes. Yes, your Honour.'
…
His Honour: 'When Mr Hodgkinson talked about cutting plywood and putting it in place is that referable to typical floors where tableforms were used or … around the edges or something?'
Passione: 'Yes, to a lesser extent in the table form, you would still have needed to use a little bit of loose formwork, but to a lesser extent in cutting ply up in the table forms and you would cut, obviously, a lot more in the stick formwork.'
Counsel: 'You have to pour columns, though, in respect of each of the typical floors and you have to have cut-outs in the floor, penetrations?'
Passione: 'Yes.'
Counsel: 'Each of those take some amount of formed up formwork?'
Passione: 'Yes.'
Counsel: 'And will involve plywood to some extent?'
Passione: 'Yes.'
Counsel: 'May involve cutting the plywood to match the particular shape?'
Passione: 'Yes.'
Counsel: 'When the plywood is stripped out, after the concrete's cured, a percentage of it is damaged in the normal course?'
Passione: 'It reduces its lifespan, yes. …'
Counsel: '… it will only last as long as it's in sufficient condition to warrant usage, otherwise it causes problems with the curing of the concrete?'
Passione: 'Yes, I think if you looked at, say, the tax applications that are defined by the Australian Tax Office for the advice we're given, is that the table forms, I think, can be depreciated at 10 per cent, ply can be depreciated at 20 per cent. So that gives you an idea of how much - you know, the difference in lifespan.'
…
Counsel: 'After the 18th, you've told us that you came back approximately weekly. Is that correct?'
Passione: 'Yes.'
Counsel: 'You don't know what was taken off the site and put onto the site in the period that you weren't there, quite clearly?'
Passione: 'The first several months nothing was - no significant material was brought to the site, because I could see our equipment being used. I take what you said earlier, that some of the table forms were in place where concrete had been poured, but I saw with my own eyes that the formwork was removed and relocated to new areas and concrete was poured on it.'
…
Counsel: '… you don't know how much plywood was delivered after 18 May, to the site, do you?
Passione: 'No.'
Counsel: 'You don't know how many new components of Truform were delivered after 18 May?'
Passione: 'No.'
Counsel: 'You don't know how many components for the stick formwork were delivered to the site after 18 May?'
Passione: 'No.'
Counsel: 'Of course Anderson Formrite didn't organise the delivery of any equipment to the site, after 17 May, did it?'
Passione: 'No.'
Counsel: 'When you did your inspection on 18 May, you couldn't differentiate between the hired and the equipment that wasn't hired, could you?'
Passione: 'Yes, I could, yes. … for example I know the hoists - formwork hoists were a hire lease type of arrangement. The screens were a lease arrangement. Truform was all purchased. Ply was all purchased. Tables were all purchased. … The Rapidshor - the framework to the tables was all purchased.'
(emphasis added)
304 Mr Passione described Truform as 'a laminated beam that forms the main structure in creating the stick form work that the ply then is applied to it'.
305 The plywood that was used by the applicant was approximately 20mm thick. Mr Passione gave evidence that the plywood was reused many times over. When asked how he knew that the plywood that he observed on the site after 17 May 2002 was the applicant's he said:
'I was involved in the purchasing of it; I was familiar with the site. I was there on a daily basis for … approximately nine months. I knew the site like the back of my hand.'
(emphasis added)
306 I accept Mr Passione's evidence in relation to the continued use by the respondent of the applicant's formwork materials and equipment in the weeks that followed the respondent's termination for its sole convenience of the formwork subcontract between the respondent and the applicant.
307 Mr Walkenhorst gave evidence that the respondent engaged a new formwork subcontractor on the site after 17 May 2002 - West Swan Formwork. Mr Walkenhorst could not remember the exact date when West Swan Formwork commenced work on the site but said that it was 'Early-July'. He said that West Swan Formwork did the formwork for the typical floors pretty well up to the top level of the tower. He said 'they got virtually to the very top and went broke'.
308 In relation to the formwork undertaken by West Swan Formwork Mr Walkenhorst gave the following evidence:
Senior counsel for the respondent:
'What form of formwork did West Swan … utilise for the work on the tower?''
Walkenhorst: 'They used their own formwork system.''
Counsel: 'Did that formwork have a name, as you understood it?'
Walkenhorst: 'No.'
…
His Honour: 'You understand the difference between stick formwork and tableforms?'
Walkenhorst: 'Yes.'
His Honour: '… What did they use? Stick form, tableforms or what?'
Walkenhorst: 'For the levels where they - well, level 8 to 9 was the I think it was the right level, was the mechanical services level and they had to use stick form for that. But prior to that and up to the top level they used a table form system.'
309 Mr Walkenhorst gave evidence that he observed West Swan Formwork bringing tableforms on to the site which were used by them on the tower. When asked whether he saw West Swan formwork utilise any other tableforms than the ones they brought onto the site, Mr Walkenhorst replied in the negative. He then gave the following evidence in chief:
His Honour: 'Were there any other table forms on the site that you observed, at the time when these people came onto the site?'
Walkenhorst: 'I think there were still the Anderson Formrite table forms on the site.'
…
His Honour: 'Did you lock Anderson Formrite out of the site?'
Walkenhorst: 'Yes.'
Counsel: '… when their contract was terminated on 17 May, did you make, after the time of that termination, any observation as to the positioning of the table forms that they had brought onto site?'
…
Walkenhorst: 'Yes.'
Counsel: 'Where were they in relation to the building?'
Walkenhorst: 'They were in the tower … They were incorporated into the works. So they were supporting the concrete and reinforcement.'
…
Counsel: 'Now, the stick form, did it have any particular name - manufacturer name or the like?'
Walkenhorst: 'Rapidshor.'
…
His Honour: '…What I think we need to know is what component items did you observe when Anderson Formrite were carrying out work, towards the end of the project, so far as they were concerned, what component items did you observe that they had on site?
Walkenhorst: 'Okay. The table forms, which were a complete set of forms, manufactured specifically for the placement of concrete and reinforcement for the tower and then in the Knoxville area, Rapidshor with stick form with Truform and plywood.'
His Honour: 'Now, when you say "with Truform and plywood" where did the Truform and plywood go in relation to the Rapidshor?'
Walkenhorst: 'On top of it.'
His Honour: 'Can you describe the components? What's Rapidshor?'
Walkenhorst: 'Rapidshor is the steel tubing, framing, that supports - it's adjustable in height, supports the Truform and the plywood on top of the Truform.'
His Honour: 'The vertical members are the Rapidshor, then there are - what are they called - beams, what's the word?'
Walkenhorst: 'The beams. I'd call them - they're Truform, but they're beams.'
His Honour: 'Yes, that's laminated beams, are they?'
Walkenhorst: 'Yes. I'm not sure.'
His Honour: 'In any event they're the horizontal members that run across the top of the vertical supports and the plywood goes on top of that. Is that right?'
Walkenhorst: 'That's correct, yes.'
His Honour: 'Right, and it says some bracing, how do they brace them?'
Walkenhorst: 'They're braced with the steel bracing. It's all part of the Rapidshor.'
…
Counsel: In relation to the Knoxville area of this site, in the days immediately following the termination on 17 May did you observe any formwork?'
Walkenhorst: 'Yes'.
…
Counsel: 'At the time of your observation, at the immediate time, was it performing any function?'
Walkenhorst: 'It was performing the function of formwork.'
Counsel: 'In what …?
Walkenhorst: 'Supporting the concrete and reinforcement.'
His Honour: In that area of the works what was the time for the concrete to cure before the formwork could be stripped?'
Walkenhorst: 'I'm not - I can't answer. I don't know.'
His Honour: 'So that you know … a little bit about formwork but not enough about … time when you can [move] on to the next floor?'
Walkenhorst: 'It varies and it varies on the strength of the concrete.'
His Honour: 'And the spans?'
Walkenhorst: 'More the strength of the concrete and it is -which is related to timing and testing of concrete cylinders.'
(emphasis added)
310 In the light of the evidence I would incline to the view, as previously indicated, that all formwork supporting reinforced concrete members that were the subject of concrete pours up to and including 17 May 2002 would have been ready for stripping in the space of 1-2 weeks thereafter. Certainly by 31 May 2002 there would appear to be no reason for denying the applicant the opportunity to enter upon the Woodside Building Project site to strip all the formwork that had been put in place by it on or before 17 May 2002 so as to allow the applicant to remove from the site all Temporary Works and Construction Plant and other things used in the work under the subcontract.
In addition the respondent had no right to re-use any of the applicant's formwork materials or equipment to further progress the building works after 17 May 2002.
311 The respondent submitted that it 'unincorporated these goods as soon as they were able to be unincorporated from the Works'. Reference was made to, inter alia, a letter sent by the respondent to RMD Australia on 17 June 2002 which included:
'Truform material on site and not temporarily incorporated in the works is currently being gathered and stacked ready for collection by the rightful owner of that material. This exercise should be completed by 28 June 2002.
We will then prepare a list of that material and invite you to provide satisfactory evidence of your ownership.
We have also written to Anderson Formrite Pty Ltd in respect of your claim and asked them to confirm whether or not they have a competing claim to that material.'
I do not accept that the respondent 'unincorporated these goods as soon as they were able to be unincorporated from the Works'. In any event the respondent had no right to lock the applicant out of access to the site thereby denying it the opportunity to remove from the Woodside Building project site all Temporary Works and Construction Plant and other things used in the work under the subcontract. It was not a case of the respondent having a discretion to unincorporate goods at its convenience and advise the applicant when, if at all, they would be ready for collection by it.