Evans Deakin Pty Ltd v Sebel Furniture Ltd

Trade Practices Act 1974 (Cth) ss 52, 82 Evidence Act 1995 (Cth) ss 78, 79, 135 Taylor v Johnson (1983) 151 CLR 422 referred to Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 referred to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 referred to Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 referred to and discussed Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 applied PD v Australian Red Cross (New South Wales Division) (1993) 30 NSWLR 376 applied British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504 referred to Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 referred to Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 referred to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 referred to Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 referred to 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referred to Placer Development Ltd v Commonwealth (1969) 121 CLR 353 referred to Meehan v Jones (1982) 149 CLR 571 referred to Biotechnology Australia Pty Ltd v Pace (1998) 15 NSWLR 130 referred to SVI Systems Pty Limited v Best & Less Pty Limited [2001] FCA 279 referred to Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 referred to and discussed Williams v Roffey Brothers and Nicholls Contractors Ltd [1991] 1 QB1 referred to and discussed James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 applied L Schuler A G v Wickman Machine Tool Sales Ltd [1974] AC 235 applied Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 applied Ryan v Textile Clothing and Foolwear Union of Australia [1996] 2 VR 235 applied FAI Traders Insurance Company Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 applied Jennings Construction Ltd v F R Coyle Pty Ltd 17 October 1984 NSWCA applied Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76 referred to 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referred to EVANS DEAKIN PTY LTD v SEBEL FURNITURE LTD N 768 of 1999 ALLSOP J 12 MARCH 2003 SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The proceedings stand over to a date to be fixed for argument as to costs and in order that either party may raise any matter adverted to in these reasons, other than costs, in respect of which the parties have been given liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

index Introduction Outline of proceedings Clyde's essential submissions An overview of the claims as pleaded Facts Introductory comment Approach to the factual findings Main witnesses Factual narrative Further factual discussion Legal analysis The contract claims Contract A Contract B Contract C Contract D The estoppel claim The Process Protocol agreement The Process Protocl representation The balance of Clyde's case under s 52 of the TPA Negligent misrepresentation Postscript on liability Damages Reserved rulings on objections

Outline of proceedings 1 The applicant, Evans Deakin Pty Limited, is a company that carries on the business of manufacturing. A division of the applicant, known at the relevant time as "Clyde Engineering" and now referred to as "EDI Rail" (to which division I will refer in these reasons as "Clyde", synonymously with the corporate applicant), carried, and carries, on the business of the design, manufacture, assembly, repair and maintenance of railway locomotives and cars, including electric passenger trains. The respondent ("Sebel") carried, and carries, on the business of the design and manufacture of seating. 2 In 1998 Clyde won the tender for the design, manufacture, supply and maintenance of a new generation of electric passenger trains for the New South Wales State Rail Authority (the "SRA"). The train was called the 4GT Project - short for the fourth generation of electric passenger trains in New South Wales. I will refer to it as such, or as "the Project". Sebel tendered to Clyde as a prospective sub-supplier for the design and supply of passenger seating in these trains. From mid-1997 until March 1999, Sebel evinced enthusiasm about its prospective participation in the Project. In early October 1998, Clyde signed a contract with the SRA. Clyde used the Sebel design in its tender, in the sense that will become evident in due course. From mid-1997 Clyde and Sebel worked together in the development of the design of the seating. Whilst Clyde had called for, and received, three other seating tenders during 1997 and 1998, it did not take any steps towards developing those other designs. Soon after Sebel's tender was received (in late October 1997), and evaluated (shortly thereafter), Clyde found the Sebel design both aesthetically appealing, and attractive in its costing, calculated at about $538 per seat space as an average (excluding certain associated costs). Thereafter, in early 1998, Clyde learnt that the SRA also found Sebel's seating attractive. 3 The price at which Sebel tendered was based on Sebel's direct costs only. Anticipated costs of tooling, and design or research and development, were to be capitalised and amortised over time in the balance sheet and profit and loss account of Sebel and not directly expensed to the Project. A concomitant of this approach was that Sebel intended to keep the intellectual property in the seat (copyright, design and patents), for future unrelated jobs. The Project was seen by senior management at Sebel as an opportunity for Sebel to move into the transport seating market - a market in which, hitherto, it had not participated. 4 In early 1999, after Clyde had bound itself to the SRA by contract in October 1998, Sebel, under the influence of a new General Manager, Mr Doman, reviewed this approach to capitalisation and amortisation of the costs of tooling, and design or research and development, in relation to the seats for the Project. In late March and early April 1999, Sebel told Clyde that it was no longer prepared to participate in the Project on the commercial basis hitherto indicated, and that Clyde had a choice - it could buy the intellectual property for $490,000 and then carry on with the development of the seating with another party in place of Sebel, or, pay $1,025 (not $538) per seat space for seating in the first stage of the Project (about forty percent of the anticipated total job) and $550 per seat space for the remaining two stages of the Project. Clyde rejected both these alternatives. It set about designing and manufacturing seating for the train itself. It brought these proceedings for damages brought about by Sebel's conduct. 5 Clyde sues for breach of contract, for contravention of s 52 of the Trade Practices Act 1974 (Cth) (the TPA), for negligent misrepresentation and in estoppel.

Clyde's essential submissions 6 Clyde's case was succinctly put in its written opening as follows: At the heart of this case is the following: · Sebel continuously promised to Clyde over the period from October 1997 to April 1999 that Sebel would supply seating to Clyde for the 4GT Project at the prices set out in Sebel's response to Clyde's request for quotation. The fulfilment of such promises was entirely within the control of Sebel. · Over that same period Clyde and Sebel, and their respective agents, worked closely together on the design of the seats in the expectation that if Clyde was selected by the SRA as the preferred tenderer for the 4GT Project (as it was in June 1998), Sebel would be responsible for the design and manufacture of the seating. · Sebel knew that Clyde had relied heavily on Sebel's response and counted on the price remaining firm in providing Clyde's response to the SRA and subsequently entering into a binding agreement with the SRA. · Sebel knew that if Clyde was selected by the SRA as the preferred tenderer, Sebel would be responsible for the seating. Sebel knew that there were no other seating manufacturers being considered by Clyde and that there had not been since the middle of 1997. · In April 1999 Sebel reneged on its promises and refused to supply seating to Clyde at the prices set out in Sebel's response. · In the meantime, and to the knowledge of Sebel, in October 1998 Clyde entered into its formal contract with the SRA on the basis that Sebel would supply at the prices set out in its response (having locked itself finally into doing the work at the price in about June 1998). · After Sebel's withdrawal, Clyde undertook the task itself of designing and manufacturing the seating of the 4GT Project at considerable extra expense over and above the prices promised by Sebel in its response. 7 Clyde submitted that there were only three relevant matters that could seriously be in dispute in the proceedings and that could be affected by the evidence. The respondent would not agree with the limitation there expressed, but certainly the three matters identified by the applicant go to the heart of the dispute. 8 First, there was the question as to what, if anything, was promised by Sebel. The applicant posited various promises by Sebel. These promises informed the case in contract (in its various manifestations), the case under s 52 of the TPA and the case in estoppel. The promises were as follows: (a) In the event that Clyde won the contract with the SRA and bound itself to the SRA, Sebel would supply the seating to Clyde in accordance with its tender. (b) That promise itself embodied two promises as to price, being (i) that the average price per seat space was $538 across the seating configuration in the tender, comprising prices of $490 per seat space for fixed seating and of $552 per seat space for roll-over seating; and (ii) that should the seating configuration change, the price for each new seating "unit" would be calculated substantially in accordance with these prices by reference to the price per seat space for that particular type of "unit" - fixed or rollover. 9 These promises do not expressly arise from Sebel's tender. Sebel did not say in its tender: if Clyde relies on the Sebel tender and wins the SRA contract, binding itself to the SRA, Sebel will provide seating in the configuration ultimately called for at the average price per seat space by reference to the per seat pricing for fixed and rollover seating used (as is evident in the tender) in the make-up of Sebel's tender. 10 The form of the tender response of Sebel will be dealt with in due course. It suffices to say at this point that the case of the applicant that these conditional and flexible promises were made rests, in significant part, on distilling from events some fundamental and immutable facts: (a) that Clyde relied entirely upon the Sebel design and price in committing itself to the SRA; (b) that Sebel knew that; (c) that Clyde did not engage in any co-operation with any other tenderer in the close manner it did with Sebel; (d) that Sebel knew that; (e) that Clyde and Sebel, through their relevant officers, knew that Sebel would necessarily obtain the seating contract if Clyde won the tender from the SRA; (f) that Clyde and Sebel, through their relevant officers, knew that in the nature of things, over time, the configuration of seating units called for by the SRA would change; and (g) that Clyde and Sebel, through their relevant officers, knew that once Sebel became aware that Clyde had bound itself to the SRA it, Sebel, was bound to supply to Clyde in accordance with the promises. 11 These facts, which the applicant uses to underpin the promises, amount to the view mutually shared by Clyde and Sebel, through their relevant officers, that Sebel would provide the seating in accordance with its tender if Clyde won the tender and committed itself to the SRA, such that the Court can infer a legally binding promise (whether in contract or otherwise) to that effect. 12 One of the difficulties with this approach, as will be seen from a detailed examination of the communications between the parties, is that even if the relevant officers (or at least some of them) shared a view that Sebel would be providing the seating if Clyde won the tender, that may not necessarily lead to the conclusion that the Court should infer that, by some point of time, a mutually enforceable legal relationship conformable with this expectation of future events arose, in circumstances where the parties dealt in communications with the formation of legal relations in a manner inconsistent with such an inference. 13 This brings me to the second matter put forward by Clyde that could seriously be in dispute: the states of mind of the relevant officers of Clyde and Sebel from October 1997 to April 1999 as to whether they regarded Clyde and Sebel as legally bound as reflected by the promises. 14 The third matter put forward by Clyde that could seriously be in dispute was the characterisation of, motivating factors behind, and justification (if any) for Sebel's withdrawal of its willingness to supply seating in accordance with its tender response.

An overview of the claims as pleaded 15 An analysis of the legal issues, to be meaningful, requires a knowledge of the facts. For this reason, at this point it is unnecessary further to identify the legal issues beyond a brief introduction. First, the claim was put in contract in at least four alternative ways. The contracts were said to arise (a) at the time of tendering in October 1997, (b) at the time of entry into a document known as the Process Protocol in March 1998, (c) in October 1998 when it was said that Clyde accepted Sebel's tender, and (d) in February 1999 after final legal and technical documentation had been sent by Clyde and responded to by Sebel. 16 Secondly, three express and implied representations were pleaded. These concerned price and the maintenance of the tendered price in accordance with the promises referred to above. It was said that in the circumstances which occurred there was a contravention of s 52 of the TPA in respect of these representations. Clyde emphasised that at least some of the representations were promissory, and not merely concerning future matters. 17 Thirdly, a claim in negligent misrepresentation by reference to the method of calculation of the price to be placed in the tender was pleaded. 18 Fourthly, various estoppels were pleaded, seeking to hold Sebel to the original tender price and to sheet home the consequences thereof, in accordance with the promises referred to above.

Introductory comment 19 I turn now to the facts. Two matters, which are related, need be noted by way of introductory comment. First, the distinction, on the one hand, between what the parties believed or understood to have occurred and would in all likelihood occur, and, on the other hand, what the parties believed or understood to be their respective legal rights and obligations, should be borne in mind. The two are related, but distinct. Conflation of these two matters can have one move from the premise that the parties believed Sebel would be supplying the seats, to the conclusion that therefore Sebel was presently bound to supply the seats. The one does not necessarily flow from the other. Secondly, oversimplification of the facts should be guarded against. A degree of summation is possible without distortion and oversimplification, but great care needs to be exercised in summarising over eighteen months of a relationship. There were at times inconsistencies and tensions in the facts which, and the significance of which, can be lost sight of with a too shortly encapsulated view of events.

Approach to the factual findings 20 To a significant extent, the resolution of this dispute turns on the ascertainment of the events that occurred from mid-1997 to early 1999, and the assessment of the context in which they occurred. Because of the pleading of estoppel and s 52 of the TPA and the related question of reliance, it is also necessary to understand the states of mind and beliefs of the parties during the above-mentioned period. The conclusions as to the states of mind and beliefs are, at least theoretically, capable of being of relevance to the assessment of contractual status and intent. To say as much is not to violate the objective theory of contract: Taylor v Johnson (1983) 151 CLR 422, 428, 429; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, 335, 336, and see generally Carter and Harland Contract Law in Australia (4th Ed) [110] to [113] and [206]. What I have sought to do in relation to contractual formation is to find objectively what was said and done, how it was said and done, and the context in which it was said and done, in order to evaluate whether the parties can be taken, to the reasonable observer, by reference to their words and deeds, to have agreed to something, and whether they intended to be legally bound by what they had agreed. A finding as to what a participant or participants in a meeting or meetings thought the result of the meetings was may assist in understanding or drawing a conclusion about what did occur at the meeting or meetings. Care, of course, must be taken not to slide from a conclusion that a party thought that there was or was not a contract, to a conclusion that there was or was not a contract. I have sought to exercise that care: see generally Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 [298] to [300]; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540,548-51 (per Gleeson CJ, with whom Hope JA and Mahoney JA agreed). In the end, as shall be seen, little light in this case is shed on the question of what in fact happened by reference to beliefs or states of mind. 21 The parties (and the applicant in particular) pressed their cases by reference to a careful appreciation of the facts. The facts can only be fully understood by a chronological appreciation of their development. Summary form or concentration on one particular event or one particular point in time can lead to distortion. The consequence of this is that there is no alternative to the setting out chronologically of the facts as they unfolded from late 1996 to early 1999. In coming to my findings as to the facts I have been assisted significantly by the submissions of the parties. Each side provided me with detailed submissions and a detailed factual narrative. To an extent, I have taken advantage of that assistance from the parties and incorporated parts of those narratives into my conclusions, without attribution. I would like to express my appreciation to the parties and their representatives for the care with which those submissions and narratives were prepared (care which was conformable with that displayed in the balance of the presentation of the case by both sides) and to say that my resort to the text of either narrative has not been, in any way, a substitute for my careful consideration of the appropriate factual findings.

Main witnesses 22 At this point it is appropriate to identify the persons involved for both Clyde and Sebel and to say something by way of introduction about their evidence. 23 Mr John Hancox was the Group General Manager of Clyde. He did not give evidence. 24 Mr Reg Graham was an employee of Clyde at the time the 4GT Project arose. He started work on Clyde's tender to the SRA in about February 1996, and was appointed Clyde's "Executive Manager 4GT Project" in January 1997. Mr Graham was one of a number of Clyde officers and employees who together constituted Clyde's Executive Management Committee through the relevant period, that is, between 1996 and mid-1999. The senior member of the Clyde Executive Management Committee was Mr Hancox. Also on the Committee were Mr Keith Edwards (Financial Director and Financial Group), Mr Tom Zube (Logistics Manager), Mr Kevin Thompson (Sales and Marketing Manager) and Mr Bob Cantwell (IT Manager). 25 Mr Graham in [8] of his affidavit of 19 October 2000 described his responsibilities as Executive Manager of the 4GT Project for Clyde as including the following: (a) preparing the overall commercial strategy to enable Clyde to win the Tender; (b) developing a framework of what Clyde believed the SRA was seeking from tenderers for the 4GT Project in order that Clyde could formulate a tender that was competitive; (c) corresponding and meeting with the customer, the SRA; (d) co-ordinating and preparing both material and labour estimates; (e) selecting a partner and the sub-suppliers that Clyde was going to work with in preparing its Tender; (f) finding the appropriate facilities for the manufacture to be carried out on the 4GT Project, including evaluation of sites and negotiations with local councils and authorities; (g) co-ordinating and preparing the maintenance pricing and offer; (h) co-ordinating the overall bid and arranging all board approvals. 26 Mr Graham struck me as an honest man. He attempted, at all times, to be of assistance. However, as I later say, I think that there was a degree of after the fact rationalisation in some of Mr Graham's evidence. 27 Mr Graheme Sheldrick, a professional quantity surveyor of long and wide experience in tender evaluation and the management, administration and negotiation of major engineering and construction works, was the consultant "Logistics Manager" for Clyde's tender to the SRA from September 1997 until October 1998, when he became the Commercial Manager for Clyde. Mr Sheldrick described his responsibilities up to October 1998 as "Logistics Manager" in [5] of his affidavit of 13 October 2000 as including the following: (a) calling for tenders and selection of sub-supplier submissions, including incorporation of the sub-supplier information into Clyde's Tender offer to the SRA; (b) negotiations with sub-suppliers; (c) negotiations with the SRA; (d) preparation of Clyde's Tender to the SRA; (e) co-ordination of the Clyde 4GT Project team for the purposes of providing responses to the SRA when requested. 28 As can be seen from the above expressions by Messrs Graham and Sheldrick of their responsibilities, and as was otherwise clear from the evidence, Mr Graham was more closely involved at the practical technical level than Mr Sheldrick, whose responsibilities were directed to negotiation and documentation with parties such as Sebel. 29 Mr Sheldrick, like Mr Graham, struck me as honest and attempting to be of assistance. However, also like Mr Graham, as I later say, I think that there was a degree of after the fact rationalisation in some of his evidence which at times, in Mr Sheldrick's case, was a little forced. 30 Sebel was a subsidiary of GWA International Limited (GWA). Mr Geoffrey McGrath was the managing director of GWA. His evidence in cross-examination was given cautiously and somewhat defensively. With some exceptions, that I have identified, I accept his evidence. 31 Up to about August 1997, Mr Ian Paxton was the General Manager of Sebel. That position was in effect the managing director of Sebel. In that position, Mr Paxton reported to Mr McGrath. Mr Paxton did not give evidence. 32 Mr Jones was at all material times the Major Projects Manager at Sebel. He was the person at Sebel who had senior day to day contact with Clyde. It is not oversimplifying matters to say that he had effective carriage of the Project at Sebel until about February 1999. He gave evidence for Clyde. I deal in some detail with his evidence in these reasons. Whilst I think that he attempted at all times to be truthful, his evidence, as I say later, had a certain after the fact construction to it. He deeply disagreed with the approach and conduct of Mr Doman. He thought it to be both unwise and unethical. Whilst in significant part I accept his evidence, especially where it conflicts with Mr Wright, I think, as I say later, a modicum of caution is to be exercised in dealing with the evidence of his state of mind. 33 In August 1997, Mr Wright took over from Mr Paxton as Acting General Manager of Sebel. He remained in this position until late October or early November 1998, when the newly recruited Mr Doman took over as General Manager of Sebel. Mr Wright was involved in the decision to tender on the terms offered. He was a man of wide experience in manufacturing, and in Sebel's business. He was a man whose experience ranged from the factory floor to executive level. He struck me as an acute, intelligent and tough businessman, able to sum up a situation swiftly and accurately and deal with it forcefully and directly. He gave his evidence in this manner. He had a long and close history of employment with Mr McGrath. They were close business associates. Unfortunately, there were aspects of Mr Wright's evidence which were less than satisfactory. I deal with the detail of these aspects in due course. However, by way of necessary introductory comment, I have to say that I found his evidence at times stubbornly aggressive, almost as if he perceived himself in combat with the cross-examiner. That may not, of itself, be otherwise than to his credit, in a vigorously conducted cross-examination, if it had not been in respect of topics in connection with which he was plainly refusing to make concessions that documentation and commonsense demanded be made. He was especially adamant that at no time did Mr Jones ever give him reason to think that Sebel was in a position of effectively being the only likely seating supplier. I deal with the detail of this in due course, but, unfortunately, it is necessary to say that I do not think that Mr Wright's evidence is at all reliable in this regard. It is unnecessary for me to express a view as to whether this was deliberate, or the result of after the fact rationalisation. It suffices to say at this point that I have reservations about the reliability of important parts of Mr Wright's evidence. 34 Mr Gabadou was, from commencing employment with Sebel in October 1997, its Operations Manager. He expressed the responsibilities involved in this position as follows: In that role, I was in charge of the manufacturing operations of Sebel's business, which meant that I was responsible for the research and development, production, quality assurance and despatch/purchasing departments of Sebel. I would report to the General Manager of Sebel, who was Sonny Wright at the time I joined. 35 Mr Gabadou's involvement in the Project began in January 1998, after Sebel had submitted its tender. I deal with his evidence later. At this point it need only be said that he gave his evidence in cross-examination in a careful, open and direct manner. When called on, and when appropriate, he gave concessions. When apparently clear on a matter he, without any defensive aggression, made his position perfectly clear. The cross-examination of him took the form of a direct and modulated dialogue in which the cross-examiner promptly reached the bedrock of a reliable recollection, clearly expressed. I accept Mr Gabadou's evidence as reliable. 36 Mr Doman was brought in as the new General Manager of Sebel and commenced in that position in early November 1998. It is fair to say that his business views on how underlying costs should be accounted for in projects of this kind caused an entire reversal of approach to the Project. To that extent, in large part, he was responsible for the affair which has led to this litigation. That is not said critically, but factually. This late, but in a sense central, position of Mr Doman in the mutual affairs of the parties led to a direct and vigorous (and entirely fair) cross-examination of him. Under this fire Mr Doman was at times evasive in his defence. I found some aspects of Mr Doman's evidence less than persuasive, in particular his expressed view that he wanted Sebel to undertake the Project and his refusal to concede that he appreciated in February and March 1999 that he was reversing the costing methodology of tooling and design costs. I have dealt with his evidence, as necessary, later. 37 It is unnecessary further to identify and comment on witnesses and actors at this point. A dramatis personae was provided by the applicant which, in the absence of correction by the respondent, I have taken as accurate. I have marked this document as exhibit A2. The parties have liberty to apply to oppose the admission of that document into evidence.

Factual narrative 38 The SRA commenced the process of introducing the new generation of passenger train called the "Millenium train" in 1996. 39 The third generation of passenger train, known as the "Tangara", had been introduced in the 1980s. Before that, the last of the second generation trains, known as the "Double Deck Suburbans", commenced service in the late 1960s. In 1996 the retirement of this thirty-five year old rolling stock was imminent. 40 In 1996, Clyde decided that it would tender for the 4GT Project. Its tender was initially intended to be in conjunction with a French entity, GEC Alsthom, which specialised in the provision of electric traction machinery. GEC Alsthom later withdrew from the joint venture with Clyde, but indicated that it was prepared to supply the traction package to Clyde, if Clyde proceeded to tender on its own. Clyde informed the SRA of this development and the SRA responded by suggesting to Clyde that it submit a tender on its own. To that end, the SRA agreed to give Clyde an extension to 5 November 1997 to prepare its tender submission. 41 Clyde commenced work on the Project in 1996. 42 On about 30 October 1996 the New South Wales Minister for Transport issued a media release announcing that CityRail would soon invite tenders for the 4GT Project. The announcement stated that the specifications would require seats to be reversible (or rollover or walkover), more comfortable and vandal resistant. 43 The tender for the 4GT Project was conducted by the SRA in three stages. The first stage was a pre-registration process in which the SRA chose a limited number of companies to tender. This process concluded in June 1997. The second was the preparation and submission of tender submissions which occurred from about July 1997 to 5 November 1997. The third was the tender evaluation which took place from 5 November 1997 until Clyde Engineering was awarded the tender in June 1998, formal contracts being signed on 8 October 1998. The evidence did not explore the precise nature of the legal relationship between Clyde and the SRA from June to October 1998. A media release on 30 June 1998 by Evans Deakin Industries Limited (EDI), Clyde's parent company, stated that the SRA's chief executive had announced that EDI was the "preferred supplier" of the 4GT trains. 44 From about December 1996, it was clear to Clyde that the seating in the new trains was a very important consideration and that the SRA placed considerable importance on improving the seating in comparison to the Tangara train. In particular, the SRA made known its desire for reversible or walkover or rollover seats which had not been installed in the Tangara used in suburban areas, though such seats had been installed on trains travelling inter-city. Passenger comfort and vandal resistance were also said to be important. It was plain to Clyde that the seating was a very important part of its tender. 45 On or about 4 June 1997, the SRA released a preliminary set of tender documents. These documents were issued as part of the pre-registration process approximately two months before the formal bid process began. These documents, known as "pre-registration documents", contained the SRA's specific requirements in a number of areas, including in relation to seating. The preliminary documents called for interest in respect of the design, manufacture, supply and possible maintenance and financing of the 4GT train. 46 On about 17 June 1997, Clyde received a letter from the SRA informing it that its joint venture with GEC Alsthom was one of three organisations which would be invited to participate in the formal tender process. The other two organisations were ABB Daimler-Benz Transportation (Australia) Pty Ltd and A. Goninan Co Limited. 47 The letter from the SRA to Clyde-GEC Alsthom dated 17 June 1997 stated that considerable emphasis was to be given to the maintenance phase of the contract. 48 Meanwhile, in about late March 1997, Clyde had commenced working with an organisation called Transport Design International ("TDI") to establish the design features of the train. Within this task, TDI began the design process to develop the general functionality and appearance of the proposed seating. 49 Also, during the pre-registration period, when Clyde was working on seat design with TDI, Clyde sent letters to various potential sub-suppliers, including potential seating suppliers, seeking their expression of interest in participating in the 4GT Project. It was during this period, in approximately June 1997, that Clyde representatives first had informal communications with representatives of Sebel, to discuss the possibility of Sebel being the seating designer and supplier for the 4GT. Mr Graham of Clyde was aware that approximately fifteen years previously, when he was working for another company, Sebel had indicated a willingness to break into transport seating. The initial contact between Clyde and Sebel was through contacts between representatives of their respective parent companies, EDI and GWA. 50 Mr Graham telephoned Mr Jones in approximately early June 1997 and a meeting was arranged at Clyde's offices to discuss Sebel's participation in the 4GT Project. The meeting, held shortly thereafter, was attended by Mr Jones and Mr Ken Payne (Sebel's Research and Development Manager) on behalf of Sebel, and Mr Graham and Mr Rakesh Batra (Clyde's then Logistics Manager for the 4GT Project - Mr Sheldrick's immediate predecessor) on behalf of Clyde. At the meeting there was discussion about Sebel's resources and ability to undertake the work on the 4GT Project, given that Sebel had not done any work on passenger seating before. It was agreed that Mr Graham and Mr Batra would attend Sebel's premises for an inspection of its facilities. 51 Sebel commenced work immediately on designing a seat. On 17 June 1997, Sebel prepared a design brief in relation to the Project. The design brief was signed by Mr Jones. The "Price Estimate" in the brief was $250 - $450 "per bum space". 52 On 20 June 1997, Mr Jones wrote to Mr Batra of Clyde. The letter enclosed a confidentiality undertaking duly executed and stated, amongst other things: Following our meeting, we are pleased to confirm that Sebel Design is interested in working with Clyde Engineering in the development and subsequent manufacture of rail carriage seating. …… We are confident that we have the resources and the ability to work with you on this project and look forward to a mutually rewarding association. The letter also included statements as to Sebel's history and good credentials. 53 On 24 June 1997, Clyde sent Sebel a request for quotation for the supply of passenger seats. This request was superseded by a further request for quotation issued by Clyde to Sebel during the tender process in September 1997. The request was an invitation in respect of the "design, manufacture and/or supply" (not maintenance) on a free in store basis of 450 seats minimum per train for twenty train sets (with four trains per set). 54 There then followed various internal meetings within Sebel in relation to the Project. On 11 July 1997 Mr Jones and Mr Payne, together with other Sebel employees, including Mr Sheldon King, a designer, met with Mr Greg Martens of TDI. At that meeting, Mr Martens presented TDI's aesthetic concepts for the proposed train seat, together with a series of concept drawings that TDI had developed for the possible styling of the seats. 55 The proposed inspection of Sebel's factory by Clyde's representatives took place on 17 July 1997. Various employees of Sebel were in attendance. Sebel's General Manager at that time, Mr Ian Paxton, attended for part of the time. He indicated that Sebel felt it could go forward with the 4GT Project and he said that he thought it was a great opportunity to achieve Sebel's objective of expanding its business. As Mr Graham recalled it, Mr Paxton also said that Sebel was very interested in getting into the ferry market and was very interested and keen on the 4GT Project. 56 At the meeting of 17 July 1997 Mr Graham said the following: We're really looking for something unique in seating design, something new and innovative. We don't want the same conventional designs that everyone else out there is doing in mass transit. We don't want you to just re-engineer the Tangara seats. We want you to factor in a moving lumbar support. This made clear the importance of the seat. 57 During the course of the meeting Mr Paxton said words to the following effect: Sebel wants to expand its business. Transport seating is an ideal area as it is the only part of the seating market that we are not in. We have experience on very large design, construct and install projects like the convention centres, Opera House seating and have developed a new design for education seating. We are working hard to expand our business. We really feel that we can go forward with the 4GT Project and will provide whatever support and resources are necessary to be successful as it is a great opportunity to achieve our objective of expanding the business. 58 At one point during this tour Mr Jones said that the 4GT Project represented an opportunity for Sebel to break into new markets such as trains and ferries, and that Sebel was keen to work on a project and was committed to the Project. 59 At the conclusion of the factory tour, Mr Jones said to the Clyde representatives, words to the effect of: As you can see, we'd have no problem manufacturing the seats, we have all the resources and expertise that you could possibly need. 60 There was some dispute in the evidence as to whether at this meeting Mr Graham, or someone on behalf of Clyde, stated that they were looking at a "ballpark" figure of something less than $400 per seat position. Mr Payne gave this evidence. Mr Graham did not recall it. Mr Jones recalled that in these early meetings (whether this meeting or a slightly later meeting) Mr Graham said to him that Sebel should be looking to a range of a maximum of $570 per seat space. Handwritten notes of the meeting of 17 July tendered, but otherwise unexplained, refer to "Target Price <$400/seat". I do not think that the two recollections are necessarily mutually inconsistent. There appears to be support for Mr Payne's recollection concerning this meeting in the note. Mr Jones gave evidence in [15] of his affidavit of 6 October 2000 that at one of the early meetings the following was said: Jones: We've never been involved in any kind of public transport seating. We've got absolutely no idea what kind of figure we should be looking at tendering. Can you give us a ballpark indication of a range of figures that would be considered by Clyde? Graham:You should be looking somewhere in the range up to a maximum of $570 per seat space. 61 That Mr Graham gave this figure to Mr Jones early in the piece is confirmed by the evidence of Mr Drabsch (Sebel's Commercial Manager before Mr Lange) who said in [16] of his affidavit: At paragraphs 15 and 16 of his affidavit, Mr Jones refers to a top of the range price of $570. I had no contact with anyone from Clyde and do not know if that price came from them. However, I do recall it being mentioned by Neville Jones. I think that this was in a discussion with him, me and Sonny Wright where Mr Jones said words to the effect: "$570 is the price we have to target to win the job". 62 Mr Graham's recollection varied slightly. He gave evidence in [54] of his affidavit of 19 October 2000 that in about August 1997 the following exchange with Mr Jones took place: Graham: For your information Clyde has established an average seat cost as a target for this contract. We are expecting to pay in the range of $450-500 per seat position. This has been established from European standards. Jones: Thank you for that. I will give you an indication in the next few weeks of what we believe can be achieved as soon as our first cut pricing is completed. 63 Mr Graham also then gave this evidence in [55] and [56] of that affidavit: Some time later at another design meeting Neville Jones came back to me and said words to the following effect: "Sebel cannot meet the target price you have given us but we can produce a seat along the lines you have requested for an average price of $500-550. We can offer this price because we believe this design can be the basis for other markets in the transportation business. It has been Sebel's policy on other large seating projects to view the potential market for a type of seat and to amortise the fixed costs of research and development, design, tooling and testing over the total market and not just the individual project, eg: not just the 4GT contract. In this case I can build a seat for you that can be modified to suit ferries. We will develop the dies for this seat and then recover our costs by exploiting the full market opportunities. This is what we did with the Olympic stadium project." I was very happy as a result of this conversation as Sebel seemed able to design the novel seat and nearly meet our target price. This would provide Clyde with a competitive advantage given that other major elements of the train costing would be similar as between all competing tenderers. I accept this evidence. This conversation made clear to Clyde the relationship between Sebel's ownership of intellectual property and the likely tender price. 64 Whilst there was some temporal and sequential inconsistency between Mr Graham and Mr Jones, I find that at least by August 1997 Mr Graham had indicated to Mr Jones that an upper figure of about $550 to $570 per seat space would be acceptable to Clyde. 65 On the day following the meeting at the Sebel factory on 17 July 1997, Clyde (Mr Batra) sent a facsimile to Sebel (Mr Payne) thanking it for the tour of the facility. It appears from that transmission that Clyde by that time had already provided Sebel with some documentation in relation to the Project. Additional documents, being further TDI sketches, were provided by Clyde to Sebel shortly afterwards. 66 By 17 July 1997, Sebel had produced design photographs of the seats. Sebel then started to consider what it might cost to build a seat for the 4GT Project. It began by costing the existing rollover seat from the inter-city Tangara series. Mr John Martin (a Sebel engineer) prepared a series of sketches of the components in that seat and then listed those components in a bill of materials. Those materials were then costed by Mr Matthew Leary, a junior engineer at Sebel, and Mr David Manz, Engineering Manager of Sebel. They did so by measuring the materials to be used, and the processes involved. The total cost for that seat (an existing Tangara 2 person walkover seat) was $811.33, or $405.66 per seat space. 67 Having done that work, Sebel then explored how it might be able to redesign the Tangara walkover mechanism so as to reduce cost. Mr Martin prepared sketches of a revised mechanism and a bill of materials, and those materials were costed by Mr Leary and Mr Manz. The total cost for that seat (an existing Tangara 2 person walkover seat as redesigned by Sebel) was $563.41, or $281.70 per seat space. 68 The costing estimates prepared by Mr Manz were based on a 2 seat walkover seat. A 3 seat walkover seat would cost marginally less per seat space, while a 1 seat walkover seat would be more costly per seat space. Fixed seating (ie. seats without a rollover or walkover mechanism) would be less costly per seat space. 69 In a letter dated 18 July 1997 Clyde indicated the types of seats then anticipated in each train. They were a 2 seater walkover, a 3 seater walkover, a 1 seat fixed, a 3 seat fixed, a 5 seat fixed and a tip up seat. These elements changed in due course. 70 During the period July to September 1997 there were various meetings between representatives of Sebel and Clyde, including employees of TDI. Those meetings were for the purpose of exploring seat designs and mechanisms, pricing options, resource allocations and development schedules. Representatives of Sebel and Clyde worked closely together on all aspects of seating and mechanism design, with Sebel submitting several design options to Clyde before mutually settling upon one preferred design to progress further. Clyde did not engage in any similar process with other seating manufacturers. The 4GT Project became a significant part of the day-to-day work for several Sebel staff, particularly for Mr King from Sebel's Research and Development Department and for one of Sebel's junior engineers, Mr Leary, both of whom spent substantial proportions of their time on the 4GT Project. 71 As was evident to Clyde, Sebel was enthusiastically developing a design and committing such resources to the Project as were required to develop a design carefully and expeditiously. 72 Mr Graham recalled telling Mr Jones during one of the meetings held in the period after July 1997 that there would be a refurbishment of existing trains in the near future and that would be a good potential market for Sebel to aim for, and that Mr Jones responded by saying that Sebel had spoken with train and ferry people and it looked like those markets were worth exploring. I accept this evidence. Mr Graham also recalled a telephone discussion in about July or August 1997 between Mr Ron Paul (then Chairman of Clyde's parent company, EDI), Mr McGrath and him. Mr Graham's evidence was that Mr McGrath said that he was aware of the 4GT Project, that it was a prime opportunity for Sebel to expand its business into transport, that Sebel was keen to extend its seating range to include rolling stock and ferries and that Sebel was keen and he would ensure that every effort was put into preparing a competitive tender. Mr McGrath's evidence was that he said no more than that he would ask Sonny Wright, Sebel's Acting General Manager, to look into the matter. I prefer Mr Graham's evidence. It is more in keeping with how the "Sebel side" of these early exchanges was exhibiting real enthusiasm. 73 On or about 22 July 1997, the SRA released its tender specification documents for the 4GT Project. A revised, final set of these documents was issued on 29 August 1997. 74 From July 1997 onwards, and in particular August and September, Sebel undertook extensive research about the existing art in train seating. Sebel was aware that an entirely new design was required. I infer that Clyde had passed on to Sebel what the SRA had said about seating, and its importance, in the new train. 75 In about late August or early September 1997, Mr King came up with the idea of using gears, including a moveable lumbar support, rather than a linkage system, for the walkover mechanism for the seat. Shortly after doing so, Mr King left Sebel and started working for a company called Design & Industry Pty Ltd ("D&I"). As Sebel wished to retain his services, it engaged D&I to assist it in the design work subsequently undertaken in relation to the seat. 76 The new seat design prepared by Mr King in August and September 1997 was then costed by Mr Leary and Mr Manz. In a Sebel inter-office memo of 1 October 1997 from Mr Leary to Mr Jones, the estimated costing was set out as $382, on the basis of $80 tooling cost per seat, and on the basis that no maintenance costs had been allowed for. Thus, the direct cost of the seat was calculated at this time as $302. 77 In August or September 1997, prior to Clyde sending Sebel the superseding request for quotation on 10 September 1997, Mr Graham had a conversation with Mr Jones to the following effect: Before working with Sebel, Clyde had already obtained Expressions of Interest from other seating suppliers. My view is that Clyde needs to obtain tenders from other suppliers but we will continue to work closely with you. 78 Mr Graham sought in his evidence to explain why these other requests for quotation were obtained. He said: Clyde sent requests for quotations to a number of seating suppliers. One reason that I wanted to call for tenders for seats other than from Sebel is that if the market had known that Clyde was dealing with only one seating manufacturer it would have informed the market place of my strategy and focus. There is so much networking done by those involved in our relatively small industry that I was concerned that this information could potentially disadvantage Clyde. Furthermore, Clyde has the policy to gain three competitive quotes. 79 The applicant submitted that this evidence supported a finding that Clyde requested these other quotations only "as a matter of internal compliance". This submission was related to the central factual element of the applicant's case that Sebel at all times knew that it was the only seating supplier being considered by Clyde. It is sufficient, at this point, to note that the words of Mr Graham to Mr Jones do not contain any assurance of exclusivity or any explanation that the other tenders were being sought as a matter of form only or merely for "internal compliance". Sebel was told that there would be other tenderers, but that Clyde would continue to work closely with Sebel. Nor did Mr Graham explain to Mr Jones the matters referred to at [78] above. 80 Clyde proceeded to send the request for quotation to various sub-suppliers for each of the components for the train. In relation to the seating component, it sent requests to three other suppliers: Austral Pacific, Trimtech and Transform. 81 The request for quotation addressed to Sebel took the form of a letter dated 10 September 1997 with various enclosures. In that request for quotation, Clyde stated that it had been short-listed to tender for the 4GT Project and that the scope of work for the head contractor under the Project would involve "the Design, Build, Maintenance and Financing of double deck electric suburban rail cars". Whilst Clyde thus described the head contract for the 4GT Project, Sebel was only invited to submit a quotation for the "design (where applicable), manufacture and/or supply of" the seats. 82 Notwithstanding the absence of a request for a quotation on maintenance, that matter was discussed between Mr Graham and Mr Jones. Mr Graham said at [86] of his affidavit of 19 October 2000 that the following exchange took place between him and Mr Jones some time before Sebel submitted its tender in October 1997: Mr Graham: Neville, we need an offer from your company for maintenance of the seats over the life of the contract, what service you can provide, the life of the components, and their cost of replacement. If Clyde is successful we would prefer that the maintenance be included. We can discuss the details of this at that time, based on the offer you submit. Mr Jones: We would be pleased to include maintenance in the contract and we will forward a submission to you shortly as a basis. I accept this evidence. 83 The question of the extent to which the parties had, by early 1999, agreed on issues of maintenance was a matter of dispute. It is therefore necessary to trace the development of this issue during the unfolding of events. 84 The request described the scope of work as follows: Description Drawing/Specification Rev Total Qty Reference

1. Passenger seats (Each 4 car train set comprising of): P 163-06 10/09/97 50 train sets (in 3 stages) a) 3 person reversible 68 units To be advised 50 train sets b) 2 person reversible 64 units (in 3 stages) c) 1 person reversible 8 units d) 1 person fixed 14 units e) 3 person fixed 12 units f) 5 person fixed (end saloon) 6 units g) 5 person fixed (end saloon) with 2 fold up seats 6 units
2. Life Cycle Costing for the proposed seats.

85 The three stages referred to in the column headed "Total Qty" were explained in the body of the request for quotation. Stage 1 was for the supply of eighty cars, which would make up twenty train sets (one train set consisting of four cars). Both of Stages 2 and 3 would only proceed at the SRA's option, Stage 2 being for the supply of fifteen train sets (sixty cars) and Stage 3 also being for fifteen train sets (sixty cars). 86 The request required tenderers to meet the technical requirements set out in Engineering Specification Tender Inquiry No P163-06 which was SRA Specification No 4GT-S96 0301, which required (in section 3.3) all passenger seating to meet the requirements of CityRail Specification FE 038-92. 87 The request also stated:

1. Prices are to be quoted for each individual type of seat detailed in the scope of work. The split up of different types is preliminary and subject to change during the design development of the car. [emphasis added] 88 The request for quotation included a document headed "Attachment 1 Conditions of Tendering". Condition C to that document, headed "Price Basis", was in the following terms: C. Price Basis All prices to be submitted should be on a Rise and Fall basis in accordance with Clause 3 of Clyde Engineering's Special Conditions of Contract 4GT Project. The base date for the Project is defined as 5 September 1997. Prices are to be submitted in Schedule 1 to the Request for Quotation in the tables provided. If additional space is required, extra sheets may be photocopied and attached. The split up of the unit price is to be submitted in Schedule 1A for the purposes of indexation for Rise and Fall calculations. Suppliers are also required to submit a Fixed Price option for Stage 1 only (20 train sets) in Schedule 1B. This price will be firm for the duration of Stage 1 and will not be subject to Rise and Fall or Exchange Rate variation. The prices should be in Australian currency and should exclude sales tax. Where imported goods are involved, Suppliers may submit prices in foreign currencies as an option. 89 Clause 3.1 of the Special Condition of Contract was in the following terms: 3.1 All prices to be submitted will be subject to rise and fall from the base date defined as 5 September 1997. 90 Condition D to that document, headed "Validity Period" provided that "all offers must be valid for acceptance up to 30 September 1998". 91 The request for quotation also included copies of "Clyde Engineering General Conditions of Contract" and "Special Terms and Conditions 4GT Project". Sebel was requested to indicate whether any of the terms set out in that document were terms it was not prepared to accept. 92 Clause 2 of the General Conditions of Contract was in the following terms:
2. The Contract 2.1 The Purchase Order constitutes an offer to purchase and not an acceptance of any offer to sell the Equipment. The Purchase Order shall only be accepted in accordance with its terms and without modification, addition, deletion or alteration thereof unless agreed to in writing by Clyde and duly signed. In the absence of written acceptance or other written confirmation by the Supplier, the Supplier will be deemed to have accepted the Purchase Order upon delivery of the security deposit (if any in accordance with clause 7.1 or upon expiry of 21 days after the date of the Purchase Order whichever occurs first. 2.2 The Contract is the entire agreement between the parties in relation to the design (if required by the terms of the Contract), manufacture and delivery of the Equipment and shall be deemed to have superseded, excluded and cancelled (so that they shall not be part of or be used in the interpretation of the Contract) any qualifications, understanding, arrangements warranties, statements, agreements, reservations or restrictions contained in any: (a) invitation or offers; (b) precontractual negotiations, discussions or documents whatsoever; or (c) collateral agreement or warranty; which in any way relate to the subject matter, or part of the subject matter, of the Contract, or the intentions of any of the parties. 93 The words and phrase "Contract", "Equipment" and "Purchase Order" were defined in cl 1.1 as follows: "Contract" means the contract between Clyde and the Supplier for the supply of the Equipment formed by acceptance of the Purchase Order by the Supplier and includes these General Conditions of Contract, any Special Conditions of Contract and all attachments, documents and schedules thereto or hereto; … "Equipment" means the goods to be supplied by the Supplier described in the Purchase Order to which these Conditions of Contract are annexed or of which they form part; … "Purchase Order" means Clyde's purchase order form to which these Conditions of Contract are annexed or of which they form part but excludes any terms and conditions printed on the back of the form; 94 Clause 12 of the Special Terms and Conditions provided that suppliers would be required to comply with the various terms and conditions of the head contract (being the contract for the supply of trains between Clyde and the SRA) on a back-to-back basis. One term identified was cl 9.3 of the proposed head contract, under which Clyde would be obliged to assign to the SRA all rights, title and interest in any intellectual property specifically created for work under the contract. 95 That clause was, relevantly, in the following terms: 9.3 Rights granted to the Principal The Contractor: (a) assigns to the Principal all rights, title and interest in any Intellectual Property in the Contract Documentation and any other Intellectual Property produced under the provisions of the Contract or specifically created for the work under the Contract from the Date of the Deed of Agreement or its creation (whichever is later); and (b) grants to the Principal a permanent, irrevocable, royalty-free, non-exclusive licence to use any other Intellectual Property incorporated into the work under the Contract or otherwise used in connection with the work under the Contract for any purpose whatsoever which: (i) arises upon the creation of those things the subject of it; (ii) may be sub-licensed; (iii) will survive termination of the Contract on any basis; and (iv) entitles the Principal, any sub-licensee or any assignee to alter or enhance anything licensed with any Intellectual Property in the alterations or enhancements vesting in the Principal; and (c) must do all further things necessary to assign the rights, titles and interests referred to in the preceding paragraph (a) and to obtain the Principal's right to the licence referred to in paragraph (b) and the Contractor is responsible for any payment, including any royalty fees, in connection with the granting or the obtaining of the licence. 96 Other clauses of the head contract made relevant by cl 12 of the Special Terms and Conditions concerned insurance. Clause 12.3 stated: Suppliers and their subcontractors will be required to meet the provision [sic] of these clauses. The amount of Public and Products Liability Insurance cover required is $100 million and the amount of Professional Indemnity Insurance cover required is $30 million as stated in Attachment A of the Head Contract. Consequently, Clause 33 Suppliers Insurance of Clyde Engineering General Conditions of Contract is not applicable. 97 Also, cl 12.5 of the Special Terms and Conditions in the request for quotation, dealing with the application of head contract provisions made the question of maintainability relevant to the contractual responsibility for design. Sebel was required to design for a planned service life of each train car of at least thirty-five years. It is unnecessary to set out the detailed provisions in cl 2.5 of the special conditions and cll 3.7 and 3.8 in volume 2 of appendix 5 which dealt with Sebel's contractual responsibility concerning a reliability programme, modelling and predictions in respect of reliability of performance, analysis of failure modes and criticality analysis of the seat and its parts, a reliability demonstration, and a maintainability programme. These matters required Sebel to deal with issues related to reliability, life expectancy and maintenance, but this was in connection with the design and manufacture of a suitable seat. The applicant in particular relied on the following provisions of cll 3.8.1 and 3.8.2 in volume 2 of appendix 5, which provisions do not it seems to me take the matter any further than I have indicated. 3.8.1 Maintainability is a characteristic of design. It is used to describe the ease with which failures can be repaired and time required to perform schedule maintenance and replacement procedures. Mean Time To Repair (MTTR) is a quantitative measure orf maintainability. … The contractor (ie Sebel) will implement a maintainability program as part of the contract. … Maintainability characteristics will be an important consideration in the evaluation process, because of the impact of repair times on life cycle costs and on the potential availability which can be achieved in service. … 3.8.2 The contractor will be required to provide the estimated MTTR for repair of a selection of most common faults and for completion of inspection and replacements required as part of the scheduled maintenance program. 98 Also included in the request for quotation (whether initially on 10 September 1997 or later supplied) was a request for the supply of data in respect of "Life Cycle Costing". The relevant document, headed "Specification for Life Cycle Costing Data to be Supplied", noted that one of the SRA's objectives was to minimise the life cycle costs over the expected life of the 4GT trains and that Sebel was required to provide information in a particular format so that the information could be standardised and equipment life cycle cost could be evaluated. The document stated that the SRA required Clyde to submit with its tender to the SRA a preliminary reliability predictions report, a preliminary maintainability predictions report and life cycle cost estimates, and that in order to allow Clyde to compile these reports, Sebel was requested to provide certain information in its scope of supply. The data requested included a spare parts list seeking manufacturing source and costs, costing for corrective maintenance, frequency, duration and costing for scheduled maintenance and life cycle costing for each major part. The document also stated: You should assume, for the purpose of compiling this data only, that you are tendering for a subcontract to Clyde Engineering for the maintenance of your supply items at the designated maintenance facility at Eveleigh NSW for an initial period of 5 years. Should you be so contracted, you would be required to provide all necessary skills and labour, tools, spares, test equipment and other documentation to allow the work to be competed [sic] in the maintenance availability. 99 The same document also requested the following information relevant to maintenance: · The extent of ongoing support over thirty five (35) year maintenance period specified for the equipment specified. · The approach to guaranteeing the performance of the equipment to the standards specified over the maintenance periods of 15 years + 10 years + 5 years + 5 years (35 years). · Any special tools and test equipment required to be held at servicing and maintenance depots for either maintenance or repair work to be listed and priced separately. · List of "day one" recommended spares and current price of each item along with minimum stock levels to be held in inventory. · Listing of float spares for Equipment overhaul and current price of each item. 100 The request for life cycle costing information was not a request for Sebel to tender for a maintenance contract. This was accepted by both Mr Graham and Mr Jones. 101 The Special Terms and Conditions contained in the tender request also required Sebel to develop or supply and maintain an appropriate range of operating and maintenance manuals for the seating. 102 Included in the material sent to Sebel as part of the request for quotation was a drawing prepared for Clyde by TDI identified as drawing TD-1784-SK49. The drawing had marked on it the following: (a) the estimated overall internal saloon width of 2910mm; (b) SRA requested aisle width of 470mm absolute minimum; (c) seat width of 450mm absolute minimum; and (d) seat pitch of 850mm. 103 Further, at page 3 of SRA Engineering Specification 4GT-S96 0301 being the engineering technical specification governing the seat design at this stage, it was stated: Clause 3.4.1 - design is to be based on concept ergonomic layout drawing TD-1784-SK49. 104 In respect of the load requirements that the seats had to meet, specification 4GT-S96-0301 provided as follows: (a) At Appendix 1, clause 3.6.1.1.6 provided Loads on car body attachments. The car body structure and attachments shall withstand a 4g longitudinal, 2g lateral and 2g vertical acceleration over and above gravitational acceleration acting on any bracket, fixing, partition, interior or external fittings or anchorage without exceeding the critical design stresses for any member. The above components shall also be designed using a fatigue methodology which prevents fatigue failure over the life of the 4GT. (b) Clause 2.4 provided the following shock loads: All equipment - not axle mounted: Vertical 3g Lateral - 3g Longitudinal - 6g. (c) Clause 2.1.56 of Appendix 1 defined passenger as: For design and testing purposes passengers shall include 5th percentile Australian female to 95th percentile Australian male. The average mass of a passenger to be 70kg... 105 Paragraph 4.1(i) of FE 038-92 - dealing with testing - required the seat back to be capable of being walked over fore and aft for at least 15,000 cycles. 106 The relevance of these various elements of the tender request and specifications will become apparent in due course. 107 On or about 24 September 1997, Sebel engaged D&I to prepare a three dimensional computer animated image of the walkover seat. At or by this time, the Sebel Project team made, or had made, a decision that Sebel would try to sell the new seating to other markets beyond the 4GT Project. Mr Jones believed that a successful seating product from the 4GT Project could be used in future bus seating projects, ferry projects and other train contracts. Mr Wright had similar views. Sebel's senior management team therefore decided that Sebel would seek to retain all intellectual property in the seating design, so that Sebel could continue to use the design in future projects. A consequence of this decision and of what underlay it, was the costing decision that tooling costs, and design or research and development costs would not be expensed directly to the Project and thus would not be included as part of Sebel's tender price. Such costs would be capitalised and amortised over time in the balance sheet and the profit and loss account of Sebel. 108 By about late September 1997, Sebel's basic concept design was completed. 109 Mr Jones gave evidence that a meeting to determine the bid price and other matters took place in Mr Gabadou's office, with Mr Gabadou present. I infer that this meeting was in late September or early October, but probably before 3 October. Mr Gabadou denied this, pointing out that he only joined Sebel in October 1997. I accept Mr Gabadou's evidence in this respect. In any event, Mr Jones, Mr Payne (Sebel's then Manager of the Research and Development Department) and Mr Manz, an Engineering Manager, were present at a meeting for this purpose. Some work had already been done on the make-up of the price prior to that meeting. At the meeting, a figure of approximately $560 per seat space (average) was calculated, being a figure that would, in the view of those present at the meeting, provide a satisfactory commercial return to Sebel after the costs of production (and taking into account the intended future use of the seating in other projects). Mr Jones said that in arriving at this figure they assumed that Sebel would absorb the tooling and research and development costs for the reasons just referred to. At this time, it was ordinary practice and policy within Sebel for costs such as research and development and tooling to be amortised over a period (five years in respect of a major project such as the 4GT Project) where Sebel intended to use, or could see opportunities that may arise to use, the product of the design and research and development over several future projects. 110 These costings, calculations and discussions were based on the concept of a single "price per seat space". This was so even though some seats would be more expensive than others to manufacture (for example fixed seats would be less expensive to manufacture than walkover reversible seats), and even though the exact configuration and number of each type of seat was not yet settled. 111 The next day Mr Jones worked through the figures which had come out of that meeting with Mr Drabsch (Sebel's Commercial Manager), and the figures were then taken by Mr Jones and Mr Drabsch to Mr Wright, Sebel's Acting General Manager. The figures were then worked through on a whiteboard with Mr Wright. During the course of this meeting, Mr Jones gave evidence that the following discussion occurred: Wright: I think we should reduce the seat price to $538 per space. Jones: We're not in a competitive situation here. We don't have to bid down to win this. Wright: Yes, but I don't want this to blow the deal for Clyde. We will give them the lower price of $538 because we have to make sure Clyde gets its tender so that we get ours. [emphasis added] 112 Mr Wright contested this conversation in two respects. First, he said that he did not think that he would have voluntarily reduced the price. However, in cross-examination he accepted that he could not deny that he would have reduced the bid price to try and get the deal. Secondly, he vehemently rejected the proposition that Mr Jones said that Sebel was not in a competitive situation on this tender. The following exchange took place between Mr Wright and the cross-examiner, in forceful terms (from Mr Wright): Mr Foster Yes and don't you remember that Mr Jones told you at this meeting that Sebel was not in a competitive situation on this tender? Mr Wright There was not one single time when Neville Jones told me that, not one. In fact, for the whole duration of my time there, I had constant dispute with Neville about trying to get a commitment from Clyde to the effect that we were the preferred tenderer and in fact I believe then as I believe to this day that our job in this was to compete in Clyde with somebody else and not with the SRA as has been portrayed. Mr Foster Weren't you ever told that from about late 1997 there was no other seating manufacturer in the game? Mr Wright No, never. Mr Foster Never told that? Mr Wright Never told that. Mr Foster You say you were not told at this meeting words to this effect that Sebel was not in a competitive situation on this tender or here? Mr Wright Absolutely not, in fact, everything in Neville's conduct and Clyde's conduct as related by Neville to me indicated quite the reverse. Mr Foster Well, everything in their conduct, what have you got in mind when you give that answer? Mr Wright I have in mind constant pressure on Neville Jones. Mr Foster From who? Mr Wright From myself. Mr Foster Constant pressure, over what period of time? Mr Wright Over the period till the October. Try to understand we were spending money trying to understand what was going on, why wouldn't Clyde, I believed then as I do now, that Clyde had alternative prices and alternative proposals. In fact, I couldn't conceive that Clyde would go in on a $150,000,000 job without and rely completely on us. [emphasis added] 113 If Clyde was, to Sebel's knowledge, relying solely on Sebel for the seating, that was said by Clyde to permeate how one looks at the conduct of the parties. Mr Wright was an acute and experienced man. His keen and vehement delivery of this evidence indicated that he appreciated the importance of it. 114 I accept Mr Jones' evidence. It was directly corroborated by the other person at the meeting, Mr Drabsch, who was called by Sebel. Mr Drabsch not only generally recalled the conversation as deposed to by Mr Jones, but also, when gently taxed with the matter in cross-examination, said the following: Mr Foster: Do you remember there got to a point where Mr Wright said that there should be a seat price of an average $538 per seat space at this meeting? Mr Drabsch: No, I don't recall that specific price. Mr Foster: You wouldn't deny that either, would you? Mr Drabsch: No, I know there was some discussion that we should pitch it in at slightly lower than what we were calculating. Mr Foster: A suggestion made by Mr Wright? Mr Drabsch: That's correct. Mr Foster: Did not Mr Jones say when that suggestion was made that there wasn't any need to do that because Sebel was not in a competitive situation in relation to this tender? Mr Drabsch: Mr Jones did make that statement. Mr Foster: And did Mr Wright come back and say, well I don't want to blow the deal for Clyde. We will give them the lower price, whatever it was, because we have to make sure Clyde gets its tender so that we get ours or words to that effect? Mr Drabsch: Mr Wright would have said words to that effect. Mr Foster: In other words, help the head contractor because you are sliding in under him and you'll get the job? Mr Drabsch: Well, provide assistance to make sure that Sebel win the job. 115 From the manner in which Mr Wright gave his evidence and what I take to be his natural acuteness, I conclude that Mr Wright was well aware of the apparent importance of this evidence. I prefer the clear and unequivocal evidence of Mr Drabsch and Mr Jones. 116 It will be necessary, in due course, to assess the importance of this evidence in the light of the evidence as a whole. For now, it is sufficient to conclude that in about September 1997, in finalising the costing, Mr Jones expressed the view to Mr Drabsch and Mr Wright (but not Mr Gabadou) that there was no need to reduce the tender price from $560 as Sebel was not in a competitive situation. In answer Mr Wright expressed the view that he wanted to reduce the price to maximise the chance of Clyde winning the tender and so to make sure, as far as was possible, that Sebel won the job. This conversation took place against a background of Clyde and Sebel knowing of the importance of the seating in the new train. 117 There is no evidence that, at this point, Mr Wright queried or contested what Mr Jones said. Mr Graham, of course, had indicated the need for Clyde to canvas other tenderers. However, this conversation, as it was plainly recalled by Mr Drabsch and Mr Jones, reflected a view of at least Mr Jones that, even if there were to be other tenderers invited, Clyde was working closely with Sebel in a way which made it apparent that there was not at the time any real competition. Sebel had, as was known to Clyde, already developed ideas for a design and had expressed enthusiasm and confidence in its ability to design and manufacture the seating. Mr Jones was communicating his view, to which there was no demur from Mr Wright, that there was no real competition at this point. 118 Messrs Jones, Wright and Drabsch together agreed that the figure of $538 per seat space would be the basis of Sebel's tender to Clyde. Both Mr Wright and Mr Jones formed the view that the price gave Sebel an acceptable margin. 119 Mr Wright gave evidence about the approach taken to the non-inclusion of tooling and design or research and development costs in the bid price. He said that he did consider tooling costs and research and development costs, but was not particularly concerned about seeking to recover those costs when formulating the bid price. Critical to his thinking at that time was his personal view that if Sebel was successful with Stage 1 of the 4GT Project, then it was almost guaranteed to get Stage 2. It was only a question of timing. He thought that only Stage 3 was truly optional. He thought that if Sebel was successful on Stage 1 and the seats lived up to expectations, the continuing use of Sebel's seats in subsequent stages would be compelling to Clyde and the SRA. He also thought there was potential to use the seats on rail projects in Victoria and that the technology could be applied to seating for high-speed catamaran ferries. It was his view that, in the light of these new market segment opportunities, it was appropriate to amortise the tooling and research and development costs over five years. 120 The legitimacy of the approach of amortising tooling and research and development costs was supported by the evidence of Mr Drabsch, the Sebel Commercial Manager who was a certified practising accountant. 121 Mr Jones' evidence, which I accept, was that Sebel's senior management was involved in the preparation of the quotation, that they brought to bear a breadth of expertise which gave Sebel the requisite expertise to formulate its tender, that he obtained the necessary authority within Sebel before lodging the tender, that a great deal of time was spent and a great deal of discussion was undertaken within Sebel before submitting the final tender and that it was very carefully prepared. I accept this evidence. 122 From the evidence of Mr Manz, Mr Payne, Mr Wright, Mr Drabsch and Mr Jones I conclude that in coming to the average price per seat of $538 Sebel officers displayed a careful, logical, reasonable and entirely appropriate approach. No criticism whatsoever can be made of their approach. Minds might differ about whether some or all of the tooling or research and development costs should have been included in the seating price, but this was a business decision and one which these men were well qualified and able to make. 123 Mr Sheldrick deposed that a meeting took place between representatives of Clyde and Sebel on 3 October 1997 at which Mr Jones gave a presentation about the costing of Sebel's proposed seats and made reference to a price of between $540 and $550 per seat. I accept this evidence. 124 At about this time, in late September or early October 1997, Mr Jones spoke to Mr Graham and informed him that Sebel had been approached by another prospective tenderer. Mr Graham's evidence about the conversation, which I accept, was as follows: To the best of my recollection we had a general meeting in regards to the seat design and then Mr Jones said to me that he had received information or a request for a submission of a tender from another supplier similar to Clyde, one of our competitors and he had said that they had an internal meeting and had decided that because EDI or Clyde had worked extensively and very closely with Sebel in developing the seat up to this point in time, that they elected that they would not provide a tender to this other company and had decided that they would go exclusively with Clyde. 125 Thus, Sebel agreed to tender exclusively to Clyde, in part at least based on the close co-operation of Clyde with Sebel. Though not going directly to the question of what Clyde says was the mutually understood exclusivity of Sebel as a tenderer from Clyde's point of view, it is conformable with such an understanding, and it does underscore the co-operation between Clyde and Sebel at this point. 126 Sebel submitted its quotation to Clyde on 23 October 1997. The covering letter of 23 October 1997 included the following: The new seating concept would be designed and tooled by Sebel and we would reserve the right to be able to offer this for other projects outside of the 4GT submission. 127 The paragraph quoted above reflected what Mr Jones had told Mr Graham in about August ([63] above). Those comments of Mr Jones about Sebel's retention of the intellectual property had elicited no dissent from Mr Graham, as one would have expected, if it were anticipated by him to be a problem, given Sebel's leading role at this time in respect of seating. Likewise, there was no demur to this paragraph of the tender. The approach reflected by the paragraph underpinned, at least in part, the approach to tooling and research and development costs which formed the basis of the tendered prices. This was apparent from the tender response itself. In Schedule 1B setting out the pricing (see [129] below) Sebel expressly stated that there was no charge for "design/development" and "tooling" would be "absorbed by Sebel". Schedule 1B also identified the non-conforming aspects of the tender. The retention of "intellectual property and tooling" was made clear. Thus, Clyde was aware of a direct relationship between the tender price and Sebel's retention of intellectual property. However, for this to be given effect there would need to be some adversion to cl 12 of the Special Conditions of Contract and cl 9.3 of the proposed head contract dealing with the apparent complete assignment of the intellectual property in the seats, see [95] above. In due course, there was. 128 The question of the intellectual property was recognised by Sebel in the tender documents as one of the two major areas of non-compliance in respect of commercial matters. Another explicitly recognised area of commercial non-compliance was in respect of cl 3.1 of the Special Conditions (see [89] above). Only a fixed price for Stage 1 was submitted - for the duration of the first stage of the project. Also, the tender was non-complying in that the validity date of the offer was 31 March 1998, not 30 September 1998 as called for. 129 Sebel's response only provided pricing for Stage 1. The pricing was set out in Schedule 1B to the tender. The prices provided for the seven categories of seat configurations contained in the request for quotation as follows: DESCRIPTION TOTAL UNIT PRICE TOTAL VALUE ($) DRAWING/SPEC/PART NO. QTY REVERSIBLE TRAIN SEAT - 3 PERSON 1,440 $1,656.00 $2,384,640 REVERSIBLE TRAIN SEAT - 2 PERSON 1,280 $1,104.00 $1,413,120 1 PERSON REVERSIBLE TRAIN SEAT 160 $552.00 $88,320 1 PERSON FIXED TRAIN SEAT 320 $490.00 $156,800 3 PERSON FIXED TRAIN SEAT 320 $1,470.00 $470,400 5 PERSON FIXED VESTIBULE SEAT 120 $2,450.00 $294,000 5 PERSON FIXED VESTIBULE SEAT WITH 2 FOLD UP SEATS 120 $2,550 $306,000

130 In addition to the prices for the seat configurations, Schedule 1B also provided for a further $1,009,000 in fixed costs being $30,000 for testing, $10,000 for the operating and maintenance manuals, (see [101] above) and $969,000 for specific public liability and public indemnity insurance as called for in the tender (see [96] above). 131 It was apparent to anyone in the position of Clyde and Sebel, given the discussion about price on a per seat space basis that had taken place and from the form of Schedule 1B, that the Sebel tender was set at about $538 per seat space average, derived by using a price of $552 per reversible seat space and $490 per fixed seat space, and leaving aside the costs referred to at [130] above. 132 Mr Jones gave evidence in [25] of his affidavit of 6 October 2000 that: Sebel's bid specified a fixed unit price for each of the types of seating. Those unit prices were arrived at by adjusting the seat-space figure of $538 upwards or downwards in a fairly arbitrary manner according to the type of seating referred to, in an attempt to arrive as close as possible (using round numbers) to an overall average seat-space price of $538. Thus, the unit price per seat-space allocated to each one-person reversible seat was $552, and the price allocated to each one-person fixed seat was $490. The total number of seat spaces of various kinds specified in the bid was 9,520. The total value for all of those seats was $5,113,880, giving an average seat-space price of $537.17. 133 I accept this evidence. The mathematics that he describes would have been apparent to Mr Graham and Mr Sheldrick. 134 At par 3.5.6 of its tender response, Sebel stated that its seating was to have an average weight of 19kg per seat place. Sebel, subsequently to 23 October 1997, also provided some drawings of the seats which formed part of its tender. 135 Sebel included in its tender response a completed schedule called for by the "Specification for Life Cycle Costing" (see [98] above) and included notes on life cycle assessment and maintainability. The information included pricing for spare parts, corrective maintenance and scheduled maintenance. The notes included the following adjacent to the heading "Ongoing Support": Sebel will provide service and parts back up for the life cycle period. 136 The various contractual provisions concerning design, reliability and maintainability (see [97] and [98] above) were all "noted" by Sebel. 137 Mr Edwards (a director, the Company Secretary and the Chief Financial Officer of the applicant) gave evidence in an affidavit dated 22 March 2002, which was not the subject of cross-examination, that the information provided by Sebel in its tender response as to cost of parts and life cycle estimates ([98] above) was used by Clyde in compiling its tender to the SRA on maintenance. 138 Clyde submitted that whilst the tender was not one made by Sebel in respect of maintenance, it contained important information concerned with that subject matter which the parties understood was to help Clyde formulate its tender to the SRA in respect of maintenance. Further, it was submitted that the parties had expressed a mutual willingness to have Sebel, ultimately, undertake maintenance obligations, though, as can be seen from Mr Graham's words at [82] above, such a maintenance contract was not a necessary accompaniment to the design and supply of the seating - though it was preferred that it be such. I agree with these submissions. Some groundwork had been laid for such a tender on maintenance and Mr Jones had expressed a willingness to provide for maintenance in due course. 139 The other three seating suppliers that had been requested to provide quotations duly provided those quotations in September and October. Whilst tenders and prices were received by Clyde from these three seating manufacturers, no discussion of any substance was held with any of those manufacturers by Clyde. Mr Graham gave evidence, which I accept, that Clyde did not speak or write to the other tenderers from late 1997. He spoke to someone from Austral Pacific in mid-1998, after that company had contacted him. He did not take up any aspect of that company's tender in that conversation. (See [240] and [241] below.) 140 Mr Sheldrick received the offers from all potential sub-suppliers and prepared a cost comparison document for Mr Graham. In this document Mr Sheldrick indicated his preferred choice. In respect of seating, it was Sebel. Mr Sheldrick's evidence was that with fixed costs of testing ($30,000), manuals and technical documentation ($10,000) and insurance ($969,000) the average price per seat space was $643.10. This was higher than expected based on Mr Jones' estimate earlier in the year ([63] above). However, the conformity with the estimate, absent those costs extrinsic to the manufacture of the seats, was also clear. 141 Mr Graham says that he reviewed the cost comparison document Mr Sheldrick had prepared. Mr Graham said that he saw that cost comparison document in slide form and in turn presented the slides to Clyde's Group General Manager, Mr Hancox, the Sales and Marketing Manager, Mr Thompson, and the CEO of EDI, Mr Ross Dunning. Mr Graham says that Clyde then selected Sebel as its "preferred seating supplier". This choice of Sebel as Clyde's "preferred seating supplier" was not expressly made known to Sebel in any correspondence at this time. 142 In late October 1997, Sebel reduced its quote by $549,000 after Clyde accepted Sebel's existing public and product liability insurance. Sebel also indicated at this time that the tender price would be further reduced if Sebel did not have to provide separate professional indemnity cover. Mr Sheldrick at this time amended his comparative costings and reduced Sebel's quote by $969,000, which reduced Sebel's quoted price from $6,122,280 to $5,153,280 (including the $40,000 for testing, manuals and technical documentation) being $541.30 per seat space or $257,664 per four car train set, and being $537.11 per seat space, if the $40,000 for testing, manuals and technical documentation were excluded. 143 The evidence of Mr Sheldrick as to his evaluation of the tenders, of Mr Graham as to what he said to Mr Jones by way of his expectations as to price ([62] and [63] above) and of Mr Jones as to what Mr Graham said as to his expectations as to price ([60] above) make clear that the businessmen dealing with this tender viewed average price per seat space as an accurate and useful way of assessing the price of the tender. They understood that there was an overall average price calculated by reference to identifiable different prices for reversible and fixed seating. The parties were also aware (the request for quotation having said so) that the "split up of different types of seat", that is the seating configuration of the train, was preliminary only, and was subject to change during the design development of the train car. 144 It was also apparent from the face of Schedule 1B of the tender response that the prices of the reversible and fixed seat units (x3, x2 and x1 reversible and x5, x3 x1 fixed) were calculated using a single price for each individual seat ($552 for reversible and $490 for fixed) and multiplying each such price by the number of seats in the unit. 145 With the likely change to configuration, it could be anticipated that the overall average price per seat space may change, up or down in a small amount, depending on the number of fixed and reversible seats, and assuming the prices for each fixed and reversible seat continued to be used and remained constant. To look at the tender in this fashion was both logical and in accordance with the discussions of the parties. This was not the only way of breaking up Sebel's tender, but along with the cost for such four car train set, it utilized commercial integers well understood and used by both parties in dealing with each other. Nevertheless, the tender request did not call for, and the tender response did not expressly offer, a price per reversible seat or per fixed seat or an overall guaranteed average price per seat space. 146 By letter dated 28 October 1997 from Mr Sheldrick to Mr Jones, Sebel was requested to confirm that Sebel's offer was valid until 30 September 1998 and to supply pricing for Stages 2 and 3. By a letter from Mr Jones to Mr Sheldrick later that same day, Sebel confirmed that its offer was valid until 30 September 1998 and that pricing for Stages 2 and 3 would be the same as the Stage 1 pricing, subject to a CPI increase from 1 July 2000. 147 I will deal in due course with the contractual relevance of the tender validity date. Some evidence was given about this. Mr Jones gave evidence that he inserted the original date, 31 March 1998, to reflect the fact that his understanding was that the head contract for Stage 1 was expected to be awarded by the SRA around February 1998 and Mr Jones understood that the validity of Sebel's bid needed to extend for a time longer than the date upon which a final decision was made by the SRA as to which company would be awarded the head contract for Stage 1. Mr Sheldrick and Mr Graham were asked about the relevance of the validity date or validity period. Mr Sheldrick gave evidence that it was his understanding, at the time he requested this extension of the validity period of Sebel's quote, that if Clyde did not accept Sebel's tender by 30 September 1998 and if Clyde did not negotiate an extension of the validity period, then after 30 September 1998 Sebel would be free to vary or withdraw its tender. Graham also accepted this was his understanding at that time. 148 The parties, in particular Clyde, sought to use these subjective views in support of their respective positions on the formation, or not, of a contract by October 1998. All I need say at this point is that how Mr Jones or Mr Graham or Mr Sheldrick thought the tender validity date operated and what its contractual purpose was is irrelevant to the question of contract formation. There was no communication between the actors about the purpose of the date. Extensions were called for in writing and given. The private subjective understandings of these men about this may assist in understanding their respective states of mind in the s 52 and estoppel cases, but they are irrelevant to the contract case. 149 Under cover of a letter dated 28 October 1997, Sebel provided Clyde with a large amount of marketing material in relation to Sebel and its parent GWA. This information was provided by Mr Jones in response to a request from Mr Graham, and in the knowledge that it would be used as part of Clyde's tender to the SRA to highlight the attributes of Sebel. 150 Mr Graham gave the following evidence in [65] and [66] of his affidavit of 19 October 2000: [65] Much of the documentation that Sebel had provided us with as part of their offer was included in Clyde's Tender submission to the SRA. Sebel knew that I was submitting their documentation to the SRA because during the process of finalising the Tender documentation I said words to the following effect to Neville Jones: "It is very important that we have your general arrangement drawings of how you see the seat design working and being constructed for inclusion in our Tender documents." Neville Jones replied with words to the effect: "We are working long hours on them and intend to finalise 3-dimensional coloured pictures which will include an exploded view of all components to show that we have a workable design. We will be able to meet your deadline." [66] Sebel was the only seating manufacturer identified in Clyde's Tender to, and ultimately contract with, the SRA. Sebel knew this because during the conversation referred to in the previous paragraph I said words to Neville Jones to the effect: "Clyde will be recommending your company in our Tender submission. That is why I need the detailed drawings" I accept Mr Graham's evidence of these communications with Mr Jones. 151 Thus, by this time, shortly prior to 5 November 1997 when Clyde submitted its tender to the SRA, Mr Jones believed, from what he had been told or observed, that there was no substantial competitor to Sebel in the supply of seating. Though he knew that other tenders had been called for and presumably been submitted, he knew that there had been close co-operation and consultation between Sebel and Clyde in relation to the development of the seat, he knew that Clyde was including in its own tender to the SRA the drawings and pictures, including exploded views of all components to reveal a workable design, latterly provided to Clyde by Sebel and he knew that Clyde was intending to recommend Sebel in its tender to the SRA. Mr Jones gave evidence in [33] of his affidavit of 6 October 2000 as follows: From very early on in the tender process a close working relationship had developed between Reg Graham and myself, and our discussions were always completely open and frank. From my conversations with Reg Graham I was of the view that if Clyde was awarded the head tender with the SRA, Sebel would be responsible for the seating. I accept this evidence. 152 Mr Jones also gave the following evidence in [34] of the same affidavit: I was also aware from the manner in which the many meetings with Clyde about seat and mechanism design were conducted that Clyde was not engaged in a similar process with any other tenderers for seating. As a result it was clearly apparent to me that Clyde had effectively put "all of its eggs in one basket" in relation to seating. At one of the earliest meetings, Reg Graham said to me words to the following effect: "We're not at all happy with the stuff that other seating manufacturers have given us. We're really looking for new and innovative and seating and Sebel is the only one offering that." I accept this evidence. 153 The two sentences in [34] of his affidavit emphasised at [152] above were objected to. I admitted them subject to relevance and objection. I deal at the end of these reasons and in Exhibits A, A1 and M1 with my rulings on all such evidence admitted on this basis. As to these sentences, I admit them. Whilst less probative than direct conversation alone, there was direct conversation evidence relevant to this topic: see the balance of [34] of Mr Jones' affidavit and the evidence of Mr Graham at [150] above. In this context I see no vice in the witness giving what is in a sense an opinion based on his own observations at meetings. It is akin to saying: X looked embarrassed. Also, I think that s 78 of the Evidence Act 1995 (Cth) makes these sentences admissible. Mr Jones was an experienced commercial man. He attended meetings. He observed conversations and demeanour and he drew from that an opinion as to the behaviour of others. Each of pars 78(a) and (b) of the Evidence Act is satisfied if one views the evidence as opinion evidence of the fact. It was not said that Clyde was engaged in a similar process with other tenderers. This evidence merely reveals that the way the meetings were conducted, this man gained that impression. Whether or not the "all eggs in one basket" metaphor is entirely helpful is another matter. Mr Jones was close to the Project. He was enthusiastic about it. He had developed a close working relationship with Clyde, especially Mr Graham. He was told that Sebel would be recommended in the tender and its up to date detailed drawings and design would be used. He had the view that, at this stage, Sebel was under no real competition. He was also aware of the critical place of the seating in Clyde's tender. At [39] of his affidavit of 6 October 2000 he said: I was also aware that seating was one of the most critical factors in Clyde's bid. In particular, I believed that as the seating would be the closest point of contact between the SRA's trains and its passengers, the part of the bid that dealt with seating (together with the decision about the external design of the train) would be the aspect of the bid that would involve the most influential and "emotional" considerations by the SRA. For this reason I was aware that the seating aspect of the bid would be critical to Clyde's success in being awarded the SRA tender. I accept this evidence of Mr Jones. 154 Mr Gabadou began his employment with Sebel in October 1997. I will come to his evidence in a little more detail later. However, he indicated that at no stage was it his view that Clyde had "put all its eggs in one basket". It may be that Mr Jones, at this stage at least - in early November 1997, had not spoken to Mr Gabadou about these matters. However, I have no doubt that Mr Jones told Mr Wright about these matters and, given their manner of close communication, Mr Wright told Mr McGrath about them. This was, in significant respects, confirmed by the Sebel Management Report for December 1997. This document (Confidential Exhibit D), which was drafted by Mr Wright for the consumption of Mr McGrath and the Sebel and GWA boards and which was probably prepared in January 1998, attached a picture of the Clyde design of the 4GT train with an accompanying picture of seating. Under the latter picture there was typed "Sebel Design Passenger Seating". Mr Wright, who prepared the report, said that he had no recollection as to how the picture came to be attached to the document or the purpose for which it was attached. I find that Mr Wright appended this to the report, appreciating at the time and intending to pass on to the board (he already having probably told Mr McGrath), that Sebel's seats were included in Clyde's tender to the SRA. 155 Returning to the matter chronologically, having made the decision internally to choose Sebel as preferred supplier of passenger seating, and having made various decisions about sub-suppliers of other components, Clyde continued to prepare its own tender to the SRA. 156 As part of that process, Mr Sheldrick gave Clyde's cost estimator, an employee by the name of Mr John Oliver, a copy of Sebel's response. Mr Oliver was the Clyde employee responsible for preparing the overall cost structure for the 4GT Project in terms of man-hours and materials. 157 A number of these cost estimates were placed into evidence. However, the cost estimate documents immediately prior to 5 November 1997, reflecting the cost breakdown of the pricing tendered by Clyde to the SRA, showing precisely how the pricing information in the Sebel tender was used by Clyde in its tender, was not available. No such document was produced on discovery and no such document was tendered. Subsequent cost estimates were in evidence and cross-examination took place in respect of them. Mr Oliver was not called to give evidence. Because the events connected with these cost estimates commenced prior to Clyde submitting its tender to the SRA, some mention should be made at this stage of these estimates. Mr Graham accepted the description of the cross-examiner that the cost estimate documents prepared by Mr Oliver contained "the most reliable and accurate estimate [that could then be made] for the various costs which would be incurred as [he] expected by Clyde in performing the contract which [Clyde] hoped to get from the [SRA]". The applicant described these documents as estimates of what Clyde thought it might "end up paying". The difference in emphasis in respect of the characterisation of these documents is important for a factual issue as to whether Clyde was, during 1998, deliberately and consciously refusing to commit unequivocally to Sebel, in order that it might renegotiate the tendered price. Such a conclusion, if it were the case, would be of significance to the issues in the case, in particular the estoppel and s 52 cases. I will return to the topic in due course. It is only necessary to mention, at this point in the chronology, that prior to Clyde submitting its tender to the SRA, the board of EDI, Clyde's parent company, directed that Clyde tender to the SRA for major sub-systems, including seating, at 2.5% below the quoted price in order to make the tender more competitive. Mr Sheldrick said he heard of that fact from Mr Graham. Mr Graham gave evidence that the discussion about a 2.5% reduction was something which took place prior to Clyde submitting its tender to the SRA. 158 Sebel submitted that this board instruction was tantamount to an instruction to enter into major sub-contracts, including seating, only after negotiating a 2.5% reduction on the tender price. I will reserve further consideration of the EDI board direction until the point at which I deal with Clyde's reliance on Sebel's price and belief in the existence of a commitment from Sebel. However, from the existence of the board direction and the later cost estimates, I conclude that in preparing and putting forward its tender to the SRA, Clyde did not use the exact figures provided by Sebel, but in all likelihood reduced them by something in the order of 2.5%. That is not to say, however, that the Sebel price played no part in the calculation of Clyde's tender price. Mr Sheldrick gave evidence that he gave the Sebel tender to Mr Oliver. Mr Sheldrick also gave evidence (at [39] of his affidavit of 13 October 2000) by reference to a cost estimate spreadsheet that the figures contained therein were taken directly from the Sebel tender reduced by the 2.5% EDI board directive and a saving on duty on fabric by the anticipated use of a local supplier. However, the spreadsheet there identified by Mr Sheldrick was not a pre-November 1997 document, but one created in December 1998. Under cross-examination, Mr Sheldrick also accepted that, even if that spreadsheet (or an earlier version of it) had been used for the purpose of compiling Clyde's tender to the SRA, he had made various errors in the calculations set out in [39] of his affidavit. In that paragraph, he had said that the figure of $247,707 as it appeared on that spreadsheet represented the cost for seating for a four car train set and that this figure had been based on Sebel's response. When he was asked to look at the spreadsheet in further detail in the witness box he agreed that the figure of $247,707 included amounts referable to the driver's seat, the observer's seat and the inspector's seat, being seats that did not form any part of Sebel's response, and that if one wanted to work out from the spreadsheet what Clyde was then estimating the cost would be for the supply of passenger seating, one would delete the cost of those additional seats from the total seating cost. If the amounts referable to those additional seats are excluded, the total estimated cost for the seating configurations upon which Sebel had tendered was $239,711 and not $247,707. 159 I will leave further analysis of these cost estimates for now. However, I am satisfied that Mr Oliver had Sebel's tender before him and had reference to it in creating Clyde's tender to the SRA, though reducing it by 2.5%. In that sense he, and Clyde, used Sebel's pricing. Given the significantly greater prices of the three other tenderers exhibited by Mr Sheldrick's comparative tender analysis, I am content to find that Clyde used Sebel's price in its tender, though reducing it by 2.5%. Whether the 2.5% reduction was a reflection merely of the assumption of a commercial risk brought about by a desire to obtain a large contract, or whether it was indicative of a board instructed intention later to seek cost reductions from all suppliers, including Sebel, is a matter to which I will return. 160 For Sebel's part, Mr Jones said that Sebel had no idea how its price was used by Clyde in the formulation by Clyde of its tender to the SRA. Mr Jones said the following: Mr Jackman: Now, just in terms of the prices, did you think that Clyde was using for the purpose of its own cost estimate in formulating Clyde's tender the exact prices which Sebel had specified in its tender response of 23 October '97? Mr Jones: I have no idea what they did with the pricing that we submitted to them. Mr Jackman: You made no assumption about whether Clyde was using the exact prices you had submitted or some other prices, is that right? Mr Jones: I had no knowledge of what they did. 161 However, Mr Jones believed, as was the fact, that Clyde had relied on and used the Sebel design in its tender. 162 On 5 November 1997, Clyde submitted its tender to the SRA. The Clyde tender was not provided to Sebel. The Clyde tender included the following information on Sebel: (a) The Executive Summary named Sebel as its major partner for seating: In the area of seating, Clyde worked exclusively with SEBEL to develop a seat design which is simultaneously stylish, comfortable - whilst offering a high level of resistance to vandalism. Included in the proposal are seats which offer individual seating, lumbar support, a unique patented 'roll-over' concept for directional seating and a low level of maintenance. We have offered seating that will provide an exceptional level of customer comfort and satisfaction. This confirmed the fact, which was in any case uncontested, that, as a matter of fact, Clyde did not deal with the other seating tenderers. (b) It included, within volume 10 of its tender to the SRA, in section 8 entitled "Passenger Seats", the following: · a letter from Sebel to Clyde dated 28 October 1997 setting out details on Sebel; · the Annual Report 1997 for Sebel's parent company, GWA; and · a promotional brochure on Sebel entitled "Auditoria Furniture". (c) In Volume 5 Book 3 of the tender by Clyde to the SRA dated 5 November 1997 the following drawings were included, each being a drawing provided by Sebel and put on to a Clyde drawing format and described as a "Sebel Design": · drawing PD03071 entitled "3 Seater Walk Over Seat"; · drawing PD03072 entitled "2 Seater Walk Over Seat"; · drawing PD03073 entitled "3 Seater Fixed Seat"; · drawing PD03074 entitled "2 Seater Fixed Seat"; · drawing PD03075 entitled "Walk Over Train Seat". It was not in dispute that these drawings were marked, along with all other drawings submitted by Clyde to the SRA, as being subject to a claim to copyright by Clyde. 163 Mr Graham was cross-examined about this claim to copyright by Clyde. He accepted that the claim was false, by which I took him to be accepting that the claim had no foundation. He said that it was not intentional. However, he then went on to say that he knew in November 1997 the claim to be false. However, this was during a part of the cross-examination in which he was asked about knowing in November 1997 what these Clyde drawing documents contained. Later he said the following. Mr Jackman: Yes, and you understood that it was incorrect in November '97, didn't you? Mr Graham: Well, I can't really - I understood that yes, they had the intellectual property or they reserved the intellectual property, but as I mentioned the way in which these drawings were transcribed on to a Clyde format, it is something that actually happened in the heat of the moment in putting the tender together where this particular copyright is on every Clyde drawing and it is a standard format. Now unfortunately, you are pointing out that it was incorrectly shown. … Mr Jackman: Is what you are saying, that the claim to copyright ownership in the bottom left hand corner is something that was careless? Mr Graham: I suppose in hindsight, definitely, it is correct to say that it should not have applied on this particular drawing as I can see at present. His Honour: Mr Graham, did you appreciate in November 1997, when these documents went off to the SRA? Mr Graham: Yes. His Honour: That included amongst them was the drawings which made claims about copyright which were not correct? Mr Graham: At the time, your Honour, I don't remember looking at that detail, but now that it is pointed out, I agree that it should not have been on that drawing. There was nothing sinister about Clyde having put that on this particular document at all. It is just the process of placing a Sebel drawing, a Kanor drawing, whatever, on to a Clyde drawing, so that we had a reference document for all our drawings, the PD drawings, for an estimate. It is just a matter of course how it happened. 164 Taking all his evidence on this matter, I find the Clyde claim of copyright occurred unintentionally, in that neither Mr Graham nor Clyde intended to make a false claim to the SRA and it probably arose in error. 165 One contributing factor to the error may have been that Mr Graham said that he and Mr Jones had discussed the question of intellectual property and that Mr Jones had said that the SRA's requirement for some rights to allow them to maintain the trains would not be a problem. Mr Graham explained this as follows: Mr Graham: As I understood, SRA had difficulty on previous contracts where sub-suppliers or major sub-suppliers either don't exist any longer or product cannot be purchased and with this contract they wanted to make sure that because it was a contract for thirty five years, the life of the train, that all major suppliers would assign and maintain the intellectual property to be available to them for reasons of maintenance and modification that might happen to the train. Mr Jackman: As you understood the position in October and November 1997, the SRA's requirement reflected in clause 12.2 and 9.3 concerning assignment of intellectual property was not limited simply to maintenance, was it? Mr Graham: My understanding was that it was all there for their reference for maintenance or modification to the train through time. 166 Mr Graham had also spoken to the SRA about intellectual property. He gave the following evidence: His Honour: Did you have any discussions with representatives of the SRA about what they were seeking to achieve by intellectual property provisions? The answer to that is yes or no to the best of your recollection? Mr Graham: Yes, I did have. His Honour: I don't want to explore what the conversations were but I want to ask you this, unless either counsel have an objection. What commercial problem did you understand the SRA was seeking to solve, or what commercial purpose did you understand the SRA was seeking to advance in the provisions concerning intellectual property, after you had had such discussions as you did have with people from the SRA? Mr Graham: Your Honour, it's based around the train configuration of each of the sub-systems on the train, which there are approximately 12 major sub-systems, the doors being a sub-system, the seats and so on. And what their concern was, that --- His Honour: As you understood it? Mr Graham: As I understood, that as product wore out --- His Honour: It needed to be replaced? Mr Graham: It needed to be replaced. And it was their desire to make sure that sub-suppliers maintained available intellectual property and - which is design and capability to re-manufacture components for the train, so that there wasn't a big cost in refurbishing the train because that particular product wasn't available any longer. … His Honour: Just so that I understand and I don't want to understand what the conversations were, but after you had that clarification from the SRA, did you have discussions with Sebel representatives about that subject matter? Mr Graham: Yes, your Honour, we had to because --- His Honour: Yes, thank you. Mr Jackman: And when do you say those conversations with Sebel took place? Mr Graham: It would have been I believe around the time of tender or just after. Possibly November 1997. Mr Jackman: I suggest to you, Mr Graham, that you've got no real recollection of those discussions with Sebel. What do you say about that? Mr Graham: I clearly remember that we did have a discussion because Sebel approached this contract a little differently in saying that they would not pass over intellectual properties and rights and so it was necessary that we have a discussion and therefore we asked for clarification of SRA and after I mentioned that, we believe - or I believe that there wasn't a problem with them going forward with Sebel maintaining the intellectual property. 167 Mr Graham said that this occurred at about the time of the tender, or just after it, that is about November 1997. I accept Mr Graham's evidence. I reject the suggestion made to Mr Graham that he was dishonest or at least consciously less than frank with the SRA about these claims of copyright. I infer that by November 1997, and, I think in all likelihood before 5 November 1997, though not reduced to written terms, the SRA had been told of Sebel's ultimate rights to intellectual property ownership and was content as long as the SRA, through Clyde, was entitled to sufficient rights, whether by licence or otherwise, to manufacture replacement seats or parts as the need arose in the future for the undertaking of the maintenance of the trains. I also find that Clyde, through Mr Graham, discussed these matters with Mr Jones. The likelihood is that both Mr Jones and Mr Graham appreciated at the time that the commercial requirements of both Sebel and the SRA were compatible through the use of some licensing arrangement. I find that in all likelihood the structure of such an arrangement was discussed between Messrs Graham and Jones. 168 That these conversations between the SRA and Mr Graham and Mr Graham and Mr Jones probably occurred is borne out by the relevant parts of Clyde's tender to the SRA. Clyde's tender to the SRA, in referring to cl 9.3 of the special conditions (see [95] above) stated that Clyde proposed partial compliance only. Amendments to clause 9.3 were propounded by Clyde which reflected Sebel's desire for ultimate intellectual property rights, with a preparedness to grant a licence to the SRA to support the maintenance of the trains. The Clyde tender response contained the following: Clause 9.3 Rights Granted to Principal Delete sub-clause (a) Sub-clause (b) to be amended as follows:- 'grants to the Principal a permanent royalty free non-exclusive licence to use any Intellectual Property incorporated into the work under the Contract or otherwise used in connection with the work under the Contract for maintenance and repair of the sets or the Maintenance Facility and any modification to be conducted in Stage 1, Stage 2 or Stage 3.' Sub-clause (c) delete the following words:- 'assign the rights, titled and interests referred to in the proceeding paragraph (a) and' 169 The contract entered into by Clyde with the SRA appears to have been developed along these lines - see [253] below. 170 Returning to the contents of the Clyde tender to the SRA, the tender included coloured pictures of the seats supplied by Sebel. These were the pictures the subject of the discussion referred to at [150] above. The tender also included within volume 6, the following under the heading "Volume 6 External and Internal Styling for the 4GT": Seats A high seating capacity has been identified as a major feature of the new trains and Clyde have recognised the need to obtain this capacity without a loss of comfort. To achieve these objectives, Clyde and TDI have worked with Sebel Design to formulate a new seat concept that will satisfy the needs of the SRA and the passengers that will use the 4GT. Key features of the unique seating design are outlined below. 171 Schedule B7 of Clyde's tender listed Clyde's proposed major suppliers responsible for equipment supply in excess of 5% of the design and build price for Stage 1, namely GEC Alsthom. Sebel was not included. Its price was under the 5% level. Later, on 12 June 1998, at the SRA's request, Clyde amended schedule B7 of its tender to the SRA to include its proposed major suppliers responsible for equipment supply less than 5% of the design and build price for Stage 1. Sebel was included in schedule B7 at this point. At the foot of schedule B7 (in November 1997 and as amended in June 1998) Clyde reserved all rights to modify nominated suppliers/consultants/sub-contractors or their scope of services so as to satisfy the needs of the Project on a best endeavours basis. 172 Mr Jones said in his affidavit of 6 October 2000 that shortly after Clyde submitted its tender to the SRA, Mr Graham telephoned him and said words to the effect: We've just put in the bid for the 4GT Project. Sebel is in there as the seating supplier. Keep your fingers crossed. 173 Sebel submitted that this conversation was an alternative to the conversation referred to by Mr Graham in [66] of his affidavit of 19 October 2000, as to which see [150] above. I find that both conversations took place. 174 Mr Jones gave evidence of the importance of this conversation to him in [31] of his affidavit of 6 October 2000. He said: These words were very important to me because it indicated to me that Clyde had made a decision that Sebel was the only seating supplier for them and I realised that if Clyde was awarded the head contract with the SRA then Sebel would be supplying the seating. It also indicated to me that Clyde had relied upon Sebel's bid in putting together Clyde's tender to the SRA. 175 I admitted these two sentences conditionally. I admit them as evidence of what Mr Jones thought at the time. I find that Mr Jones informed Mr Wright of the substance of what Mr Graham told him, as set out at [172] above, and that Mr Wright passed that on to Mr McGrath. 176 Following the submission of Clyde's tender to the SRA on 5 November 1997, the SRA entered the next stage of its tender process, stage 2, the tender evaluation stage. 177 From time to time, the SRA's Tender Evaluation Committee asked a number of questions of Clyde about its bid, including the seating component. Where such questions were received by Clyde in relation to the seating component, they were referred to Sebel for response. The substance of Sebel's answer to Clyde was then provided by Clyde to the SRA. It would appear from the material tendered that this was done by Clyde incorporating the information on to its letterhead, rather than merely forwarding Sebel's response to Clyde, to the SRA. Further, representatives of Clyde particularly Mr Graham, met with representatives of the SRA to discuss aspects of Clyde's tender, including seating. On 10 December 1997, Mr Graham gave a presentation to the SRA that summarised and discussed Clyde's bid. The discussion lasted about one hour and included discussion about the passenger seating to be provided by Sebel. Mr Graham showed the SRA large size colour photographs prepared by Sebel of the fixed and walkover seating. 178 Mr Graham said that in early 1998 he telephoned Mr Jones and said to him words to the effect: I am sorry about the delay in letting you know what is happening but the SRA has delayed in making its decision. I note from my conversations with the SRA that they love Sebel's seat and I think Clyde is firming up as the favourite. The SRA are asking the right sort of questions, if you know what I mean. I accept this evidence. 179 I have little doubt that Mr Jones passed on such news to others at Sebel, including Mr Wright, and I so find. 180 In January and early February 1998, Clyde became concerned with some delays in Sebel responding to requests for information relating to current design status and "best possible delivery schedule". On 21 January and 3 February 1998, facsimiles in identical form were sent by Mr Sheldrick to Mr Jones of Sebel. Both facsimiles included the following statements: As you are no doubt aware, our submission relies very heavily on the passenger seating feature and the client has registered a high level of interest. … We seek your continued co-operation in securing this project and ask that you respond as a mater of urgency to our facsimiles of 20 January 1998 and 21 January 1998. The letters reflect the real reliance that was being placed on Sebel's design and co-operation. 181 At about this time, Sebel sought to engage further design and research assistance. Mr Gabadou approached Invetech to assist in this regard, and in particular to develop a scale model of a three seat unit by 27 February 1998 and prototypes of various units by the end of June 1998. 182 It was submitted by Clyde that by February 1998, when the design brief to Invetech was drafted under Mr Gabadou's supervision, there had been changes to the configuration of the seating of which Sebel was aware, which changes later became formally embodied in the revised specification in December 1998. This was contested by Sebel. To identify these changes it is necessary to move forward to December 1998, by which time Clyde had executed a contract with the SRA. A new specification concerning seating numbered ES-982 and replacing FE-038-92 had been provided to Clyde, by the SRA, and, in turn, was provided by Clyde to Sebel in December 1998. Under the latter specification sixty-four fewer 3 seater reversible units, sixty-six fewer 2 seater reversible units, two more 1 seat reversible, four more 1 seater fixed and 246 more 3 seater fixed units were required, no 5 seater fixed units with or without two fold up seats were required and 2 seater fixed and tip up were required in some numbers (these latter two seaters not having been called for by the 1997 specification). A comparative table was exhibited to one of Mr Wright's affidavits. Relevantly it revealed the changes as follows: Description Tender documents ES-982 Dec '98 3 Place Reversible Units Seats Units Seats 2 Place Reversible 1440 4320 1376 4128 1 Place Reversible 1280 2560 1214 2428 1 Place Fixed 160 160 162 162 3 Place Fixed 320 320 324 324 5 Fixed (vestibule) 320 960 566 1698 5 Fixed with 2 Fold 120 600 121 242 2 Place Fixed 120 600 80 160 2 Place Tip-up (end saloon) 123 246 2 Place Tip-up (cab end) Total units 3760 3966 Total seat spaces 9520 9388

183 The evidence entitles a safe conclusion that regular and close contact between Mr Jones and Mr Graham took place during 1997 and 1998 and that as any amendment to the SRA's requirements or likely requirements about seating, including the configuration of the seating, became known, they were passed on to Sebel, even if they had not yet been formalised into an amended specification. It is to be recalled that the request for tender in respect of the seating stated: "The split up of different types is preliminary and subject to change during the design and development of the car." 184 In February 1998 Sebel, under the supervision of Mr Gabadou, prepared a design brief for Invetech. This design brief was for continuing design work, including assistance in the production of full size working prototypes. The design brief was prepared with the SRA's prototype requirements in mind. Mr Gabadou gave evidence, which I accept, about what he understood the SRA to want in terms of the prototypes, as follows: Mr Gabadou: …my understanding at the time is that we were required to make those prototypes because they wanted to see the seat but also they wanted to have a full size prototype of each type to put into their mock up carriage. So my understanding is that the mock up carriage was going to be ready in June as well. I actually was surprised why there didn't seem to be anything there and those seats in my mind were just to do that. We were only required to do one and that was my understanding for the mock up. His Honour: One seat? Mr Gabadou: One seat of each, one of each type. Mr Foster: One of each type - - - His Honour: One unit in a sense. Mr Foster: One of each type of seat that was ultimately to be put into the train? Mr Gabadou: Yes, that's correct. Mr Foster: And this was meant to be a list of each type of unit that was meant to be put in the train? Mr Gabadou: Yes. 185 The "list of each type" to which the cross-examiner referred in this passage was a list in an Invetech report as follows: · 3 seat walk-over unit · 2 seat fixed unit · 3 seat vestibule unit · 1 seat tip-up unit 186 This reflected the instructions in the design brief which were as follows: A scale model of a 3 seat unit is to be presented by 27 February 1998 with prototypes of a 3 seat walkover unit, a 2 seat fixed unit and 3 seat unit for the vestibule and a single tip up seat are required to be completed by 30 June 1998. 187 Importantly, there was no 5 place fixed seat required, and there was a 2 place fixed seat required. However, the 1 place tip up was also required. The December 1998 specification called for 2 place tip ups. 188 Sebel pointed to other evidence which tended to indicate that the configuration of the seating as found in the December 1998 specification changed after February 1998. Cost estimate spread sheets of Clyde, apparently produced in July and late October 1998 identified the seats as per the original specification. Mr Graham gave some evidence relevant to this matter when being cross-examined about a cost estimate sheet apparently created on 22 December 1998. The following exchanges took place: Mr Jackman: The first item is three person passenger seat reversible, do you see that? Mr Graham: Yes. Mr Jackman: But it's now 68 seats - I think it means 68 units, doesn't it, rather than 68 seats? Mr Graham: Yes, that's correct. Mr Jackman: Previously it had been 72, is that right? Mr Graham: Correct. Mr Jackman: Do you see there if you go down to the 6th line under the heading, passenger and crew seating, there's an entry for two person to passenger seat fixed, do you see that? Mr Graham: Yes, two - yes, two passenger fixed, yes. Mr Jackman: Now, that's not something which Sebel had been asked to tender on up to this date, 22 December, '98, was it? Mr Graham: No, I think you're correct. Mr Jackman: Do you remember in the previous cost estimates that I showed you there were entries for five seat units? Mr Graham: Yes. Mr Jackman: You notice here that there are no five seat units? Mr Graham: No, that's correct. Mr Jackman: So, we're looking here at a different set of configuration for passenger seating from the one which Sebel had tendered on? Mr Graham: Yes, this was in the best and final as I recollect but all of these slight variations that took place during that period of time were confirmed verbally with Sebel through just verbal discussion. Mr Jackman: Well, you've told us - - -? Mr Graham: Because that's where we had the situation that if you had a five seater you divided by five, it's one, which is slightly different to what you said. I know the documentation doesn't say that but through discussion and there were very many discussions that's how this was formulated. Mr Jackman: Now, these new configurations reflect what was in specification ES982, don't they? Mr Graham: Yes, that would be right. … Mr Jackman: So this document in December '98 picks up changes in ES982? Mr Graham: Yes, that's correct. Mr Jackman: And ES982 was something which you provided to Sebel with the draft contract documentation on 22 December, '98? Mr Graham: Correct. Mr Jackman: So up to this time you didn't have a tender from Sebel for the ES982 configurations, did you? Mr Graham: Not a written quotation, no. Mr Jackman: Well, you hadn't discussed ES982 with Sebel, had you? Mr Graham: We had verbally that there were changes in the seat configurations from the point of view that behind the cab because the cab had been extended we had to go from a two seat tip up to a single seat and issues like that, there were a number of minor, but there was nothing confirmed because it was all based on the original estimate because we were working together on this. Mr Jackman: Now, you don't give evidence in any of your affidavits about those conversations do you, Mr Graham? Mr Graham: But these are minor discussions over the phone, there are numerous of them and they're not all reported but we did have - because we had meetings that were continuing on on a regular basis right through this time, through changes to the configuration of the train and Sebel were well aware of all of these adjustments. Mr Jackman: You didn't have by 22 December, '98 a tender price from Sebel for these changes did you, Mr Graham? Mr Graham: Not a formal, no, that's correct. Mr Jackman: Nothing that you could regard as binding on Sebel did you? Mr Graham: Well, I don't agree with that. I believe that we had a formal submission from them that in general the configuration of the train at that time we had a firm quotation. [emphasis added] I accept this evidence of Mr Graham. 189 Mr Jones gave the following evidence: Mr Jackman: And the likelihood of changes down the track was something which you discussed openly with Clyde Engineering representatives in 1997 and 1998, isn't it? Mr Jones: There were some changes that started to evolve in conjunction with the changes that Clyde were making to their design because they were also in a similar position to us that they had a concept but it just hadn't been built. Mr Jackman: In '97 and '98, Clyde make it clear to you that there was likely to be change in the way that the train carriage was laid out, is that right? Mr Jones: Yes, we were aware that there were changes. I think from memory there was [sic] indications of some changes in the seating configurations back in the early part of '98. Without looking at the documents I can't tell you exactly but I think it was in the early part of '98. Mr Jackman: And for your part you spoke on a number of occasions with Clyde Engineering representatives about the likelihood of changes in the product which Sebel was going to hopefully supply to Clyde as part of the 4GT project? Mr Jones: When you say changes to the product, there was no change essentially to the product. The changes the seat concept was the seat concept. The changes were more likely the configuration of the seat, the fixing perhaps of the seat… … Mr Jackman: And you went through ES982 with care? Mr Jones: Yes. Mr Jackman: And you ascertained changes that that [sic] had to the total price which Sebel was tendering for a contract for the supply of seating with Clyde? Mr Jones: Yes, I had to work through the prices and pick up all the changes in the documentation. Some of those changes had been flagged to us prior to that date, as early as March '98, some of those changes had been flagged, and there were changes that were flagged to us during the course of discussions with the Sebel design teams and the Clyde design teams. The issue of the maintenance was the only, you might say, new item in that sense but it only called for Sebel to provide components. It didn't actually call for us to provide the maintenance and were asked to price for maintenance and to do that there was discussion had to take place between Sebel and Clyde to determine the likely nature of the maintenance components that would be required." [emphasis added] I accept this evidence of Mr Jones. 190 I conclude from the above and other references in the evidence that Clyde told Sebel during 1998, probably as early as January or February, that there would, in all likelihood, be changes to the configuration of the train seating, which would involve the inclusion of 2 seater fixed and the exclusion of 5 seater fixed. Mr Oliver did not incorporate those changes into his cost estimates until December 1998. I cannot conclude why. He may not have been told. He may have wanted to wait for an official (SRA sanctioned) variation to the specifications. Given that Sebel, no doubt through Mr Jones, was told of the changes and given the lack of any difficulty expressed, I conclude that the configuration changes were seen by Mr Jones and Sebel as not affecting the Sebel tender. This conforms with the view, expressed later by Mr Jones when asked to comment formally on the "new" specification in December 1998, that the changes had no effect on the offer. 191 On 5 February 1998, Mr Gabadou met with Mr Richard Stephens of Invetech. At the meeting Mr Stephens indicated that for Invetech to carry out the work requested by Sebel, it would cost between $500,000 and $720,000, plus $30,000 to $40,000 for materials. 192 In a facsimile to Mr Sheldrick from Mr Jones dated 6 February 1998, Sebel confirmed that "a small scale working model of the walkover train seat will be available for inspection first week of March 1998, full fixed prototypes of each [my emphasis] of the different types of seating will be ready by mid June 1998" and "the earliest indication that we can give you in regard to availability of the first product would be fourteen (14) months from receipt of order". The terms of this facsimile, in particular the use of the word "each" supports the conclusion which I have reached above that the seating configuration of the train had changed by February 1998. 193 On 9 February 1998, Invetech prepared a "Proposal for 4GT Train Seat Design" for submission to Sebel. A budget for the works was included which was broadly in line with earlier indications ([191] above). Over the period from 9 February 1998 to early March 1998, Invetech and Sebel engaged in further discussions in relation to the work that Invetech would carry out. On 5 March 1998, Mr Gabadou recommended to Mr Wright that Invetech be retained for Stage 1 of the development. It was not until 19 May 1998 that Invetech was formally retained, although Invetech carried out work and issued bills in the interim. 194 As it had promised, Sebel presented the small-scale model to Clyde at the beginning of March 1998. Clyde expressed a number of comments in relation to that model and set those concerns out in a facsimile of 10 March 1998 to Sebel. In response to these comments (which were seen by Mr Gabadou as criticisms) Sebel, through Mr Gabadou, held further discussions with Invetech and proceeded to arrange for a further model to be built and presented to Clyde. At the same time, Sebel and Invetech proceeded with the development of the full-scale prototypes that Sebel had agreed to provide by June 1998. 195 Mr Jones gave evidence, in [37] of his affidavit of 6 October 2000, which I accept, that in about March 1998 Mr Graham said to him the following: The feedback we're getting from the SRA is that Goninan's bid is really just Tangara all over again, with slightly modified seating. They're really enthusiastic about our approach to Sebel for a whole new seat design, they're really happy that you're involved. I understood the reference to "Goninans" to be a reference to the Newcastle company named A. Goninan & Co, which I understood from conversations and rumours within the industry participants at that time to be the only other tenderer to the SRA for the 4GT Project. 196 Again, I find that Mr Jones passed such news on to others at Sebel, including Mr Wright. 197 In March 1998, the SRA decided to proceed to a second stage of the tender evaluation process with two out of the three tenderers. Clyde was one of those two tenderers selected for the final evaluation stage. The SRA wrote to Clyde (Mr Graham) on 23 March 1998 to inform it of this development. In that facsimile the SRA also requested Clyde to execute a document called a "Process Protocol". The terms of this document are considered in more detail below. Clyde executed the Process Protocol on 24 March 1998 and returned it by facsimile to the SRA on the following day. 198 Clyde sent a similar document also called a "Process Protocol" to its various tenderers, including Sebel, for execution. This document was based on that sent by the SRA. The Process Protocol sent by the SRA to Clyde was amended so as, in effect, to insert Clyde for the SRA and to insert the name of the tenderers for Clyde. The covering letter from the SRA to Clyde was amended only slightly also. 199 There was no evidence that Sebel knew that Clyde intended to enter into the Process Protocol with the SRA in the same (or for that matter any other) form. There was no evidence that Sebel had any basis to think that the Process Protocol sent to it mirrored the arrangement between Clyde and the SRA. 200 The letter dated 24 March 1998 from Clyde enclosing the Process Protocol to Sebel was in the following terms: Clyde Engineering has been advised that the Principal has determined to proceed to the next stage of the evaluation process (Stage 2) with two tenderers. Clyde Engineering is one of those tenderers. At the conclusion of Stage 2, the principal anticipates being in a position to sign an agreement with the selected tenderer. Subject to your compliance with matters set out below we will invite you to participate in Stage 2. As a condition of your participation in Stage 2, Clyde Engineering requires you to execute a Process Protocol, a copy of which is enclosed. Could you please arrange for the enclosed document to be executed and returned to this office by 3.00pm Wednesday, 25 March 1998. [emphasis in original] Stage 2 will involve an intensive period of activity for all parties and Clyde Engineering will need both the commitment and co-operation of your organisation to meet and achieve the objectives of stage 2. Without limiting the detail contained in the following Process Protocol, it is envisaged that during this period: (a) there will be a series of further clarification of commercial/financial and technical issues, or otherwise; (b) there will be a consolidation of the contract to integrate the tender documents (as revised) with your tender and the subsequent clarifications of your tender; (c) Clyde Engineering will then produce a final form of consolidated contract which will be available to be signed by the parties, if Clyde Engineering decides to accept your tender, subject only to Clyde Engineering's internal approvals to proceed with the formal award of the contract; and (d) that Stage 2 is planned to be completed within the relatively tight timeframe. [emphasis added] Should you execute the enclosed document and return it to this office by 3.00pm on Wednesday, 25 March 1998, we would then propose to communicate with you to work through some of the more detailed issues in the Stage 2 evaluation process, once the issues have been identified by the Principal. 201 The Process Protocol, in form, was to be executed as a deed poll. It was not executed as a deed by Sebel. The recitals were as follows: A. Clyde Engineering has invited several tenderers, including the Tenderer, to submit tenders for the Project in accordance with the Specification. B. Tenders for the Project closed on the Closing Date. C. Following the Closing Date, Clyde Engineering proceeded to evaluate the tenders received, including that of the Tenderer, in accordance with the Specification. D. Clyde Engineering has concluded the first stage of tender evaluation and has decided in accordance with the Tender Documents, to select tenderers, including the Tenderer, to be involved in the second stage of tender evaluation ("Stage 2"). E. As consideration for Clyde Engineering agreeing to select it under the Tender Documents, the Tenderer has agreed to enter into, and be bound by the terms of, this Protocol, which sets out the procedure which Clyde Engineering proposes to follow during Stage 2. 202 The operative part of the Process Protocol contained, relevantly, the following clauses:

1. General Agreements. The Tenderer acknowledges and agrees that: a) it is one of the tenderers for the Project which Clyde Engineering will select under the Tender Documents to be involved in Stage 2; b) the selection of the other tenderers by Clyde Engineering under the Tender Documents will be subject to other tenderers agreeing to enter into, and be bound by, a protocol on the same terms and conditions as this Protocol; c) the terms and conditions of the Tender Documents apply to and are part of Stage 2; d) the Tenderer will participate in the procedure set out in Clause 2 on the terms and conditions of the Tender Documents; without limiting paragraphs (c) and (d): (i) Clyde Engineering is not bound to accept any tender for the Project or otherwise enter into any contractual relationship with any tenderer for the Project; (ii) Clyde Engineering may at any time discontinue the procedure set out in clause 2 and involve only the tenderer or other selected tenderers in Stage 2 or otherwise select another tenderer in accordance with the Tender Documents to be involved in Stage 2; (iii) Clyde engineering will not be liable to the Tenderer for any costs, losses or expenses incurred by the Tenderer in participating in the procedure set out in clause 2 or otherwise arising out of or in connection with the tender process for the Project or the procedure set out in clause 2; and (iv) nothing in this Protocol will limit any discretion of Clyde Engineering under the Tender Documents. [emphasis added]
2. Proposed procedure for Stage 2 2.1 This clause 2 sets out Clyde Engineering's proposed procedure for Stage 2. 2.2 Following the date of this Protocol, Clyde Engineering will do one or more of the following from time to time: (a) communicate with representatives of the Tenderer to obtain further information in relation to, and otherwise clarify, aspects of the Tenderer's tender for the Project including, without limitation, aspects of any information or other correspondence received by Clyde Engineering from the Tenderer after the Closing Date; (b) require the Tenderer, within a specified time and in a specified format to provide Clyde Engineering in writing with further information or clarification in relation to aspects of the Tenderer's tender for the Project including, without limitation, aspects of any information or other correspondence received by Clyde Engineering from the Tenderer after the Closing Date: (c) put forward to the Tenderer proposals for amendments to the contract documentation for the Project (including, without limitation, as to pricing structure) and require the Tenderer to respond to these within a specified time and in a specified format; and (d) issue to the Tenderer amended contract documentation for the Project (which may not be the same as that issued to any other tenderer) (including, without limitation, a full set of contract documentation) and require the Tenderer to indicate within a specified time and in a specified format whether it agrees to the amended contract documentation and, if not, the precise reasons as to why it does not (including, without limitation, requiring the Tenderer to provide alternative drafting amendments). 2.3 The amended contract documentation for the Project referred to in clause 2.2(d) will be intended to reflect: (a) the correction of errors and omissions identified after the Closing Date: (b) specific proposals and qualifications acceptable to Clyde Engineering included in the Tenderer's tender for the Project and information or other correspondence received by Clyde Engineering from the Tenderer after the Closing Date; and (c) the information, clarifications and other responses received by Clyde Engineering under clause 2.2 to the extent they are accepted by Clyde Engineering. 2.4 It is Clyde Engineering's current intention that at the conclusion of the overall evaluation process, Clyde Engineering and the Tenderer will have agreed upon a full set of contract documentation for the Project prepared in accordance with clause 2.3, which, if Clyde Engineering decided to accept the Tenderer's tender for the Project, both parties would execute immediately. The tenderer[sic] however acknowledges and agrees that the timing of the tender evaluation process remains within the sole discretion of Clyde Engineering. [emphasis added] 2.5 The Tenderer will in good faith: (a) attend and participate in any meetings required by Clyde Engineering under clause 2.2(a); (b) provide all information, clarifications and responses required by Clyde Engineering under clause 2.2 within the time periods and in the formats specified by Clyde Engineering; and (c) to the extent required by Clyde Engineering, adhere to, and not resile from, any representation made by it in its tender for the Project or in communications with Clyde Engineering after the Closing Date. [emphasis added] …

289 Mr Jones also said: Mr Jones: I regarded it as a letter of intent. Mr Gabadou was the one who didn't regard it as a letter of intent. Mr Jackman: If you regarded it as a letter of intent, can you please explain to the Court why you asked Mr Sheldrick or Mr Graham after receipt of the 13 October letter, whether you could have a letter of intent? Mr Jones: Michael Gabadou was responsible for the R & D side of the Sebel organisation, and any costs incurred by that department he had to account for. He had expended a considerable amount of money in getting to the stage of producing prototypes and he did not see this as being as good as an order. That was my understanding of what he said to me. As far as I am concerned, I regarded this like I said yesterday as good as an order and very typical of documents that Sebel would receive on other projects. … Mr Jackman: And can I ask you again please, when Mr Sheldrick or Mr Graham said to you in a conversation shortly after 13 October '98, that there would not be a letter of intent, it was obvious to you then that Clyde Engineering did not regard the 13 October letter as a letter of intent, don't you agree? Mr Jones: No, I don't agree. It says it is an intention to negotiate. 290 Mr Gabadou and Mr Jones differed in the extent to which they had confidence in Clyde's commitment to Sebel. Sebel's commitment to Clyde at this time was not an issue. 291 Mr Graham gave the following evidence in [81] and [82] of his affidavit: [81] On or about 13 October 1998, Clyde wrote to Sebel, as well as other sub-suppliers informing them that Clyde had been awarded the 4GT contract. A copy of this letter is at page 275 of RKG-1. The purpose of this letter was to inform sub-suppliers that Clyde was now in a position to finalise the formal contract with them. The sub-suppliers had previously been sent the Conditions of Tendering and other documents which set out the commercial terms on which they were required to supply. [82] On 13 October 1998 I was absolutely certain that Clyde had an enforceable agreement with Sebel for the supply of passenger seating on the 4GT Project. The terms were those contained in the Conditions of Tendering that had been sent to Sebel as well as in Sebel's offer which was accepted by Clyde in its letter to Sebel of 13 October 1998. All that remained, to my mind, was for Clyde and Sebel to enter into formal legal documents recording these terms. In addition, it was necessary for some of the terms to be varied to reflect changed requirements of the SRA, but it was my belief that if Sebel and Clyde could not reach agreement on these variations then both of them were bound by Sebel's offer as accepted by Clyde on 13 October 2000 [sic]. [emphasis added] 292 The third sentence of [81] (emphasised) and the whole of [82] were admitted conditionally. On further reflection, I would, had it not been for some cross-examination, have rejected the third sentence of [81] and admitted [82]. The latter goes directly to Mr Graham's understanding and belief as to relations at this time between the parties, a matter relevant to the questions of estoppel and s 52, in particular reliance. The former, in terms, is directed to a slightly different topic: his purpose in sending a letter. However, in the light of what he said in cross-examination it is appropriate to admit it, together with [82] as going to his understanding of the state of affairs between the parties. Under cross-examination, Mr Graham gave the following evidence about the letter of 13 October 1998 (which he signed): … Mr Graham: Yes, this is a standard document that we created. That we sent to all sub-suppliers. Mr Jackman: Now, please read to yourself the second paragraph of that letter. Did that second paragraph, beginning with the words: I am pleased to advise that it is our intention to negotiate a contract. Did that paragraph set out truthfully, what your intention was at that time? Mr Graham: No, it didn't. As I explained yesterday that it was our intention. Sorry, I will rephrase that. We believed we had a firm commitment from Sebel. This particular document here was accepting their offer, albeit that the words could have been better, I accept that. Saying that we will go forward with a consolidated document and yes it does include the word "negotiate". … Mr Jackman: Mr Graham, at the time that you signed and sent this letter, you did not want Sebel to think, did you, that it had a concluded bargain in terms of its tender response of October 1997 for the supply of passenger seating for the 4GT project? Mr Graham: Sebel knew they had a binding offer with us and this particular letter was a letter of formality as it was to other suppliers and it confirmed acceptance of their offer and that setting out what the next stage was being the consolidated document. Mr Jackman: At the time your sent this letter you did not want Sebel to think that it had a concluded bargain in terms of its tender response of October 1997 for the provision of passenger seating for the 4GT project, did you? Mr Graham: I don't agree with that. [emphasis added] 293 It was at this point that the cross-examiner suggested that one of the things Mr Graham or Clyde (to his knowledge) wanted to do was to negotiate Sebel down by 2.5% conformably with the board instruction referred to earlier; and that in furtherance of that purpose (undisclosed to Sebel) he and Clyde did not want Sebel to think that their tender had been unequivocally accepted. Mr Graham's evidence was that later Clyde would have asked Sebel if they could improve their price if it was possible, but he denied that he did not wish Sebel to think they had a contract, in furtherance of this aim. He said: Mr Jackman: Yes, and you knew that as an experienced commercial person that you had no realistic prospect of negotiating Sebel's price down by 2 1/2 percent if you led them to believe that they actually had a concluded bargain with you? Mr Graham: I believed they did have a concluded bargain. This request to try and improve the price if at all possible was as a result of changes that took place from the time of tender and up until this particular stage where we are now. … Mr Jackman: Yes. You knew, as an experienced commercial person, that you had no realistic prospect of negotiating Sebel's price down by 2 1/2 percent if you led them to believe that they already had a concluded bargain for the supply of passenger seating? Mr Graham: But they already knew they had a concluded bargain in that when they tendered we told them that we had accepted their offer. That doesn't stop us at any time being a major supplier, major head contractor, from approaching Sebel or any other sub-supplier and asking them is there any possibility that you could improve your price. This is an extremely tight contract and that was the vein in which we approached it. [emphasis added] 294 Mr Graham further explained his view of the existence of a binding contract on a number of occasions during the course of his cross-examination. In the context of being asked about the lack of any further extension of the tender validity period beyond 27 November 1998, Mr Graham said: Mr Jackman: Let's take the period January to June 1998, do you agree during that period that if you hadn't accepted Sebel's tender during the validity period and you hadn't, assume for the moment you hadn't negotiated an extension to the validity period, then once the validity period expired Sebel would be free to vary or withdraw its tender in the period January to June '98? Mr Graham: January to June '98? Yes, we extended the validity in accordance with our validity being asked to be extended by SRA in a mirror arrangement. Mr Jackman: And you agree with what I put to you as reflecting your understanding in the period January to June '98 about the significance of the validity period? Mr Graham: Yes. Mr Jackman: Now, let's take the month of July 1998. You understood in July 1998 that if you did not accept Sebel's tender and you did not negotiate for an extension of the validity period then once that validity period expired Sebel was free to vary or withdraw its tender? Mr Graham: You were saying at July? Could I just ask that question again, up to July 1998? Mr Jackman: Yes? Mr Graham: In July 1998 Clyde had been accepted as a preferred tenderer. Now, prior to this period of time we had worked, as I explained I think yesterday, very closely with Sebel and Sebel were very very well aware that if Clyde were successful with this particular contract that they would be successful also in the manufacture of the seats. During that period of time, in May, we had signed a protocol deed between Clyde with SRA and then we had passed that onto all of our major sub-suppliers to form a back to back relationship and Sebel in doing that, together with their knowledge and their validity also being open until November, as we had done, we had moved that forward, I know I believe that Sebel were not in a position to not honour that contract as soon as Clyde had been awarded the contract. Mr Jackman: Let's just be a little more precise. Clyde was awarded the contract on 8 October 1998? Mr Graham: That's when we signed the formal contract …[t]he issue being that Sebel were well aware they had worked extremely closely with us, we had assured them that if Clyde were successful and on the signing of the contract with SRA that Sebel would be successful, or we would be placing the order with Sebel formally to manufacture the seats. Now, in October we signed finally the formal contract with SRA. That then triggered that Sebel were well aware that they had been successful with the contract and I rang Neville Jones to inform him of that situation. Mr Jackman: So, are you saying in essence as you understood the position, that very soon after 8 October you were in effect in your understanding accepting Sebel's offer? Mr Graham: Yes, there was a binding commitment there by Sebel with Clyde. … Mr Jackman: If you assume that you had not accepted Sebel's tender in October '98 then in the ordinary course once the 27 November came and went, Sebel would be free to vary or withdraw its tender? Mr Graham: No, that wasn't the case in this particular situation because we had accepted their tender at the stage of tender in October and we had told Sebel very clearly that we had put all of their documentation into the tender and theirs was the only seat supplier. Mr Jackman: So the reason you give for the general rule about the meaning of validity periods not applying in October '98 in that as you saw it you had accepted Sebel's tender? Mr Graham: By installing it into the contract is one element. We then religiously extended the validity until Clyde was successful one way or the other and we were successful being nominated in June and then it was a matter of us formally signing the final contract with SRA that then triggered that Sebel was then successful. Mr Jackman: And so the reason you give for not asking for an extension of the validity period after 27 November '98, is that in your view you had actually reached an agreement, binding agreement with Sebel in October '98, is that right? Mr Graham: I believe in two or three occasions. The first being in October '97, when we accepted their offer. Then by the extensions of the validities on I think four occasions or three occasions and then the signing of the protocol deed and then our final winning of the contract. Mr Jackman: And it may be difficult for you to imagine this, Mr Graham, but if you were of a different view, namely that you had not reached a binding agreement with Sebel by say the end of October '98, then you would have asked them to extend the validity period beyond 27 November '98, is that right? Mr Graham: No, I can't imagine that because it wasn't the set of circumstances. We had worked so closely with Sebel, in effect partnering with them on the seats and they were very well aware as I was that we had a commitment from them and you know, in my view there was no question of a validity extension being required after the November date. Mr Jackman: In short, Mr Graham, it was your belief that there was a binding agreement between yourself and Sebel, at least by October '98, which was the reason why you did not ask for any extension of the validity period beyond 27 November '98, correct? Mr Graham: Yes, I believe we had a binding agreement. Mr Jackman: And that is the reason why you did not ask for a further extension? Mr Graham: That's correct. Mr Jackman: Thank you? Mr Graham: Because in the set of circumstances I didn't believe it was necessary. Mr Jackman: Let me finish it here, and that was for the reason that you thought you had a binding agreement by October '98? Mr Graham: Correct. … Mr Jackman: I suggest to you, Mr Graham, that you saw no point in getting Sebel to confirm the validity of the offer set out in schedule 1(B) of its initial tender response after 10 November '97, because what you wanted from them was an offer in terms of the configurations set out in ES982? Mr Graham: No, I don't agree to that. We had an offer from Sebel which substantially met all of the requirements of the specification. Yes, as we worked through the specification and the evaluation, there were some changes that caused some variations to occur. These were relatively minor and so the commitment was there. We had a base and all this document was doing was confirming to Sebel the actual numbers of each individual seat that was required. [emphasis added] 295 In being asked about his views as to the existence of a contract in January to March 1999 Mr Graham said: Mr Jackman: Your view was that in the period January to March '99 Sebel had not made a binding commitment to you to supply the seats at a particular price? Mr Graham: No, I believe they hadn't honoured their commitment by the discussions that took place because we had a tender from Sebel, we included that tender in our offer, we re-confirmed - validated their tender right up until we were successful and Sebel were well aware that if we were successful they would be successful. I believe that that was a binding commitment. 296 When asked about his views after 1 April 1999 he said: Mr Jackman: After 1 April 1999 your perception of Sebel's conduct was that it could be fairly characterised as the withdrawal of an offer to supply passenger seating and not characterised as reneging on any binding commitment to supply that passenger seating? Mr Graham: I believed it was industrial blackmail because we had a very firm commitment with Sebel. We had worked together right through this period of time and here we were, we had won the contract then all of a sudden Sebel don't want to honour. They want to step out of that and increase their price by twofold. That was not the commitment we entered into in October 1997 and had continued to work through this whole period right up until March/April of 1999. 297 In being asked about his concern over Sebel's behaviour in February 1999 in not replying to correspondence: Mr Jackman: And did that email set out the view that you actually held, namely, that you were extremely concerned at Sebel's lack of response to that letter? Mr Graham: I was concerned. Mr Jackman: Extremely concerned, weren't you? Mr Graham: I was very concerned that - I've got to say if I had a supplier who I believed was going to honour their commitment it was Sebel because in all responses and discussions all the way through from June of '97 through to January-February of '99 there had been nothing bar co-operation and dedication by Sebel to Clyde and to delivering the seats as we had discussed and all of a sudden there had been this change which I couldn't understand so, yes, I was concerned. What was the reason for the change and that's why we went forward because Neville Jones wasn't available at one stage, he was very sick and so we spoke to the general manager to try and get a response. [emphasis added] 298 Mr Graham also said the following: Mr Jackman: Mr Graham, I don't expect you to remember the question I put before lunch, can I put the question to you: as an experienced businessman, in early 1999 you intended that it would not be until the execution of a written contract that Clyde and Sebel would enter binding legal relations in respect of the supply of passenger seating for the 4GT project; correct? Mr Graham: In my terminology, Clyde relied on Sebel's tender price in 1997 and included the price as a basis in our tender, and I believed that there was a binding commitment there because we had put forward to SRA Sebel as the seat manufacturer. … Mr Jackman You were of the view, weren't you, that it was only the traction package and the brakes sub-contracts which were committed at that point, isn't that right? Mr Graham: Well, what I'm really saying is we believe we had commitment because in order to contract in our business you must rely on your sub-suppliers providing you with an honourable and executable tender that they will commit to and honour. Now, we believed that we had these sub-suppliers committed at the time we tendered to SRA. What had to then happen was that any negotiations or discussions through with the SRA that changed any minor items or performance criteria in the specification that they would be discussed with the relevant sub-contractors and sub-suppliers. Then it was a matter of formalising that commitment that we had been given with these minor adjustments and signing a formal document. 299 Taking Mr Graham's evidence as a whole, including his affidavit evidence, the following can be said, and which I find. He worked closely with Mr Jones. He was frank with him. He told him from 1997 that Clyde was relying on Sebel and that Clyde would include, and had included, Sebel in Clyde's tender. He at all times thought that Clyde would use Sebel. He thought Sebel was committed to Clyde to provide seating pursuant to the tender as modified by the discussions and agreements which had taken place since October 1997. He thought that the binding nature of that commitment arose by Clyde having incorporated Sebel's tender into its (Clyde's) tender, by Sebel's offer being open as at the date Clyde bound itself to the SRA and (separately) by what he saw as Clyde's acceptance of Sebel's tender by its letter of 13 October 1998. These matters led him to think that Sebel was legally bound. He gave no evidence that he took, or failed to take, any step which otherwise he would not, or would, have taken, or have caused to be taken, or not taken, had it not been for some act, omission or utterance of Sebel. His view was based on what he saw as the adequacy of what Clyde did in the context of an unrevoked tender offer. Whilst Mr Graham recognised Sebel as a party which had always showed enthusiasm and a desire to be awarded the tender, his view that Sebel was bound was founded on his view as to the adequacy of that which had been done by Clyde. I reserve for later discussion the question whether Mr Graham intended to hold back any communication to Sebel about the contract and Clyde's commitment in order to improve a future negotiating position. In any event, Mr Sheldrick was the person responsible for the terms of such correspondence. 300 One aspect of the above evidence requires further comment. The first emphasised passage in the transcript at [294] above contains the following: We had assured them that if Clyde were successful and on the signing of the contract with the SRA that Sebel would be successful, or we would be placing the order with Sebel formally to manufacture the seats. 301 I think this passage illustrates the after the fact rationalisation of some of Mr Graham's evidence. It is true that the whole relationship between Sebel and Clyde had been conducted on a basis of mutual co-operation such that Mr Jones was in no doubt that if Clyde won the contract Sebel would be supplying the seats, ie that Clyde would award it the contract. However, there was no communication saying so. The communications that there were, dealing with the procedure to reach contractual relations were to the contrary of such elemental simplicity. There was no evidence of any conversation or other communications (any "assurance") from Clyde to Sebel in which Clyde undertook to grant a contract to Sebel (and thus in a sense to accept its tender), if Clyde won the head contract. The terms of the Process Protocol were to the contrary. Hence Mr Graham's perception, I think, that he needed, in his evidence, to say that the Process Protocol was contrary to his then understanding of legal relations. I do not think he thought that to be the case in March 1998 (see [209] above). 302 In October 1998, he thought that by the communications which had been made by Clyde to Sebel, at least by the time the 13 October 1998 letter was sent, Clyde had done what it needed to do to bind Sebel, such that no further request needed to be made for an extension of the tender validity date. 303 Mr Sheldrick's views were similar. He drafted the letter of 13 October 1998 (although Mr Graham signed it). He was responsible for most of the communications which concerned the relationship between the parties - the letter of 24 March 1998 and the enclosed Process Protocol, the letter of 2 June 1998 and the extensions of the validity period. It was his responsibility within Clyde to attend to documentation of the steps of the tender and contractual process. He said in [67] of his affidavit of 13 October 2000: To my mind, Clyde's Conditions of Tendering and General Conditions of Contract in response to which Sebel had submitted the Sebel Offer, as well as the Process Protocol and the correspondence exchanged between Clyde and Sebel during the tender process, governed the relationship between Clyde and Sebel. The Sebel Offer was accepted by Clyde on 13 October 1998. All that was required to be negotiated were minor changes or legal niceties, but if agreement could not be reached on these I considered that both Clyde and Sebel were bound by the Conditions of Tendering, General Conditions of Contract, the Process Protocol and other correspondence. The terms and conditions, technical specifications, price, quantity and delivery dates were all specified in these documents and unless varied in subsequent negotiations between Sebel and Clyde, were all firm. As discussed below, the one term that was not final at this time was the maintenance component in respect of the seats, however, I considered that Clyde was carrying the risk resulting from the fact that it had made commitments to the SRA about maintenance but had not yet negotiated maintenance arrangements with Sebel. [emphasis added] 304 Mr Sheldrick's evidence in cross-examination was a little less compact. He said the following: His Honour: Mr Jackman was asking you a series of questions. He was using an expression "by this letter". Now, what he is seeking to do I think and he said it a moment ago and what I asked you was, did you intend as at 13 October, assuming that was about the time [you] drafted the letter, that the sending of the letter in this form would bring about the creation of some binding legal relationship between Sebel and Clyde about the seating for the train? Mr Sheldrick: Yes, as well as the maintenance aspect. Mr Jackman When you say "as well as the maintenance aspect" you didn't think that sending this letter on 13 October 1998 would in itself give rise to a binding agreement between Sebel and Clyde both for the supply of seats and for maintenance support in relation to that passenger seating did you? Mr Sheldrick: I thought the intention was to say to Sebel, it's all go, here we go. … Mr Jackman: You didn't think, did you, that this letter itself created a binding agreement between Sebel and Clyde for the supply of passenger seating, did you? Mr Sheldrick: No, it was meant to indicate that it was all go, and there was going to be a consolidated document. His Honour: And did you understand that to reflect, in your understanding, a binding legal relationship? Mr Sheldrick: Sorry, could I have that again, your Honour? I'm a little confused. … His Honour: … You have given a qualification and said, no, it wasn't a binding legal relationship of the kind Mr Jackman put in his question, and then you said, "I understood it was a," and I've lost the precise words now, but it was all go, in effect. And what I want to understand is whether what you understood in that respect, you thought to be a binding legal relationship of some kind? Mr Sheldrick: I thought there was a relationship, an agreement already in place from the submission of their tender, and the process protocol and the letter [ex]change. And this was just expressing the fact that it was all go and we would have a consolidated agreement all fully signed off, which is normal practice. … Mr Jackman: Yes. When you drafted this letter of 13 October 1998 you did not intend to convey to Sebel the message that on this day, 13 October 1998, Clyde intended to bind itself, in terms of a legally and forcible agreement, to an acceptance of Sebel's tender which had been lodged back in October '97? Mr Sheldrick: I did, subject to, as it says in it, the quantitative and pricing issues that were yet to be finalised. Mr Jackman: Right. Now, pricing and quantitative issues were fundamental to any binding commitment on the part of Sebel to supply seats, and on the part of Clyde to pay for those seats; correct? Mr Sheldrick: Arguably, yes. Mr Jackman: Well, there's no doubt about it, is there? Mr Sheldrick: It all comes back to a matter of cost, Mr Jackman. Mr Jackman: Quite. And cost had to be negotiated and resolved, as you understood it, prior to Clyde committing itself to Sebel by way of an agreement for the supply of seats? Mr Sheldrick: I'm sorry, what is the question? Mr Jackman: Right. As you understood it, in October 1998 issues of cost had to be resolved between Clyde and Sebel before there would be, in your understanding, any legally enforceable commitment on the part of Sebel to supply the seats, and on the part of Clyde to pay for those seats? Mr Sheldrick: In terms of an executed contract, and the quantity, that is correct. Mr Jackman And in terms of any kind of legally enforceable agreement, in your understanding it would be correct, wouldn't it? Mr Sheldrick: Yes, possibly. Mr Jackman: Well - - - ? Mr Sheldrick: I'm confused by all this, Mr Jackman. [emphasis added] 305 At this point Mr Sheldrick's evidence was becoming somewhat frayed. He himself said that he was confused. After a short break the following passages completed his evidence on this topic: Mr Jackman: Mr Sheldrick, on or about 13 October 1998 when you drafted this letter did you actually turn your mind to the question of whether this letter would give rise to legally binding arrangements between Sebel and Clyde? Mr Sheldrick: Yes. Mr Jackman: What legally binding arrangement in your understanding when you drafted this letter did you think this letter would give rise to? Mr Sheldrick: A formal executed contract documents. Mr Jackman: That was something that would happen down the track after sending this letter, that is the execution of the formal contract documents? Mr Sheldrick: --- That's correct. Mr Jackman: Between this letter and the execution of the formal contract there would be negotiation as you understood it when you wrote this letter, negotiation between Clyde and Sebel on contractual quantitative and pricing issues? Mr Sheldrick: Correct. Mr Jackman: With a view to reaching agreement on those issues? Mr Sheldrick: Correct. Mr Jackman: And then documenting that agreement? Mr Sheldrick: Correct. Mr Jackman: And having the parties sign it? Mr Sheldrick: Correct. 306 Whilst there was a degree of confusion in Mr Sheldrick's evidence, I find, taking it as a whole, including his affidavit evidence, and in the context of the balance of the evidence, the following to be the case. As at 13 October 1998, he did think that Sebel was bound by its tender so that no further request for an extension of the tender validity period needed to be made. There were pricing and quantitative matters to finalise, but these were not essential as they flowed out of the configuration and other changes, all of which had been discussed with Sebel. This circumstance of Sebel being bound arose, he thought, from the documentation that had passed between the parties, from and including Sebel's tender, up to and including the letter of Clyde of 13 October 1998. Like Mr Graham, he did not do anything, or omit to do anything, which he would otherwise not have done or have done, or caused to be done or not done, on the faith of, or in reliance upon, any act, omission or utterance of Sebel. Sebel was bound, in his view, by reason of the correspondence which had passed and for which he had largely been responsible. 307 It is now necessary to turn to Mr Wright. I have already referred to some parts of Mr Wright's evidence. Mr Wright gave some inconsistent and somewhat confused evidence about when it was that he first knew that Clyde had been selected by the SRA as the tenderer or preferred tenderer. He was adamant in his recollection that it was not until October 1998; at which time, he said, he became angry that Clyde was advertising its success with Sebel seats and not giving a commitment to Sebel. He said that he expressed that anger to Mr Jones in blunt and forceful terms. He was unable to give any rational or coherent explanation for what he wrote in the June 1998 Sebel Management Report ([236] above) on that basis. I do not accept his evidence in this regard. As I said at [238] above, by July 1998 Mr Wright knew that the Clyde tender was the preferred tender for the SRA contract. Mr Wright, I find, passed that on orally to Mr McGrath, and told the board of Sebel and GWA by the June Management Report which was drafted some time in July 1998. 308 I also find that in July 1998 Mr Wright knew that Sebel's seats were included in Clyde's tender. Mr Wright had been told by Mr Jones, in September 1997, that there was no real tender competition. Mr Wright had included a photograph of Sebel seats in the December 1997 Management Report ([158] above). He attempted assiduously and aggressively in his evidence to suggest that he was never aware that Sebel was Clyde's only or preferred seating supplier. At one point in his evidence, in dealing with the December 1997 Management Report, for the preparation of which he was responsible, he gratuitously suggested that his then secretary and Mr Jones later had a relationship. The implication which he seemed to be seeking to raise was that Mr Jones, behind his back, took advantage of his (Mr Jones') friendship with Mr Wright's secretary to attach this page without Mr Wright's knowledge. Needless to say, no such suggestion was made to Mr Jones in cross-examination. It was an incident which reflected the pressure under which Mr Wright found himself to explain matters inconsistent with his evidence; and it did not reflect well on his credit. 309 Clyde put the submission about Mr Wright's evidence concerning the June Management Report that Mr Wright's evidence in this regard was: …evasive, unsatisfactory and influenced by a deliberate desire on his part to resist making the concession as to his knowledge which he was plainly obliged to make. Unfortunately, it is necessary to say that I accept this submission. 310 Mr Wright also gave evidence that he became angry with Mr Jones by about October 1998. In [30] and [31] of his affidavit of 24 May 2001 Mr Wright stated the following: [30] …During the period that I was General Manager, I grew increasingly frustrated that Clyde would not make any commitment to Sebel, yet they kept making demands of us in terms of the further development of the design, such as the provision of models and prototypes, which was costing Sebel money. [31] If the things which Neville Jones describes in paragraphs 34 to 38 of his affidavit happened, I was not aware of them. I held regular meetings with Neville on another project during the course of 1998 and the 4GT seat project would some time come up. I understood from what Neville told me during those discussions that the message that we were receiving from Clyde was that Sebel was not the only tenderer and that they would give us no commitment. I had a number of heated discussions with Neville Jones about that issue as were spending a lot of money on the development of the seat, yet Clyde would not commit to us as even their preferred supplier. We had appointed external design engineering consultants, Invetech, to assist in the development of the seat. The design costs which we were incurring from them could only be capitalised if Sebel were successful. If we did not get the seating contract, I would have to take the design costs directly to the profit line. Those costs were exceeding $140,000 towards the end of my term. There were also considerable internal expenses being incurred. I recall being particularly angry with Neville when an article appeared in the newspapers about the 4GT project which showed a picture of Sebel's seat. From what Neville was telling me we were under competition, but there was Clyde showing Sebel's seat in its press release. 311 In his affidavit in reply of 21 December 2001 Mr Jones dealt with, paragraph by paragraph, the affidavits filed on behalf of Sebel, including this affidavit of Mr Wright. Mr Jones' affidavit contained [69] with a heading as follows: Paragraph 30 of the Wright Affidavit 69. I have read paragraph 30 of the Wright Affidavit. I say that at all times I conveyed to Mr Wright, as well as others within Sebel such as Mr Gabadou, the comments and observations made to me by Clyde representatives in relation to the progress of the Sebel bid. I also refer to paragraphs 55 to 59 of my previous affidavit. 312 Paragraphs 55 to 59 of his "previous affidavit" (that of 6 October 2000) dealt with the following: (a) [55] the telephone call from Mr Graham on 8 October 1998 ([257] above); (b) [56] Mr Jones' understanding and belief after this telephone call ([258] above); (c) [57] the fact that on 9 October 1998 Mr Jones saw a newspaper article in the Daily Telegraph discussing the signing of the contract and Mr Wright also copied to him and Mr Gabadou a newspaper article dealing with the contract; (d) [58] the receipt of the letter of 13 October 1998 and Mr Jones' understanding and beliefs at that time ([262] and [266] above); and (e) [59] the receipt of a facsimile from Clyde on 9 November 1998. 313 Mr Jones did not directly contradict [31] of Mr Wright's affidavit. However, affidavits are not pleadings, and it is dangerous to prepare or treat them as such. From [69] of the affidavit in reply it is plain (as I would infer in any event) that Mr Jones passed on what he was told by Clyde officers about the Sebel bid to Mr Wright, at least, and probably Mr Gabadou. Thus, I find that he passed on to Mr Wright that Sebel was to be, and was, included in Clyde's tender, that Clyde had relied on Sebel, that the SRA liked Sebel's seats and that Mr Graham had rung him to say that Clyde had signed a contract with the SRA. I reject the evidence of Mr Wright that he was not aware of the matters described in [34] to [38] of Mr Jones' affidavit of 6 October 2000; I find that Mr Jones informed Mr Wright, contemporaneously, of the matters there discussed, being: (a) that in 1997, soon after the commencement of the dialogue between Clyde and Sebel, Mr Graham said what is set out at [152] above, that only Sebel was proffering an innovative design; (b) that in late January and early February 1998, Clyde informed Sebel that its submission to the SRA relied heavily on Sebel's seating feature and that the SRA had registered a high level of interest; (c) that Clyde was presenting Sebel's design work to the SRA as the proposed seating design for the train; (d) that in March 1998, Mr Graham had said that the feedback Clyde was getting from the SRA was that the Goninan bid was a repeat of the Tangara and that the SRA was enthusiastic about the new seat design and was very happy that Sebel was involved (see [195] above); and (e) that in mid-1998, Mr Graham said that the SRA really liked the seat and it was talking about putting them onto the existing Tangara trains as well as the new 4GT trains (see [237] above). 314 I reject Mr Wright's evidence in [31] of his affidavit that he understood from what Mr Jones told him in 1998 that Sebel was not the only (implicitly real and effective) tenderer. Mr Jones was not of that view. He did not say that to Mr Wright or Mr Gabadou (as the latter conceded). The things Mr Jones was being told were to the contrary, in terms of preference for, and use of, the Sebel design. Mr Jones passed on to Mr Wright what he was told by Clyde. 315 What I am prepared to accept is that whilst Mr Wright was aware of all the encouraging communications from Clyde which gave rise to the reasonable expectation in Mr Jones that if Clyde won the tender, Sebel would be providing the seating, Mr Wright was also aware of the written correspondence, in particular the Process Protocol, none of which contained any express binding commitment to Sebel by Clyde. Mr Wright was an experienced and acute man. He had many years' experience both at the factory floor and the executive level. He had engaged in many tenders and negotiations. He retained a commercial cynicism, borne of experience no doubt, which was not entirely overcome by the reassuring news regularly passed on by Mr Jones. Also, Mr Gabadou, whom, no doubt, Mr Wright viewed as a competent and cautious executive, had the view that Sebel was entitled to some more certainty as to its position. Mr Gabadou was somewhat irritated about the fact that Sebel had spent large sums of money in circumstances where he thought that that expenditure had been, to a degree, unnecessary. He wanted a commitment, which he did not see in the letter of 13 October 1998, or in what Mr Jones brought back by way of an answer to the request for a letter of intent. Mr Gabadou probably passed on his views to Mr Wright. It should be remembered that Mr Gabadou's views as to what Clyde was saying were somewhat stronger than that which I have found Mr Jones was in fact told by Mr Sheldrick and passed on to Mr Gabadou (see [287] above). Mr Gabadou no doubt passed on to Mr Wright what he had taken from Mr Jones' report on his return: that Clyde had said that there would be no commitment from it until a formal contract was signed. 316 I am prepared to accept that Mr Wright was, in October, as was Mr Gabadou, irritated by the situation with Clyde. If both Mr Gabadou and Mr Jones had given Mr Wright their views, as they probably did, he may well at that point have become, like Mr Gabadou, somewhat vexed. Mr Gabadou struck me as a cautious and analytical man with an even disposition. Mr Wright struck me as having a more volatile and aggressive disposition. If, after all the encouragement Sebel had received during 1997 and 1998 and which had been passed on to him by Mr Jones, and after all the time, effort and money that Sebel had expended, and over three months after full prototypes had been delivered, Mr Wright was told of Mr Gabadou's views (including his fear of a competing tender) and what, to Mr Gabadou's understanding, Clyde were now saying about no commitment until formal contracts were signed, including a refusal to give a letter of intent, Mr Wright may well have become angry and spoken in blunt terms to Mr Jones after the latter had returned without a letter of intent. Mr Wright gave evidence that in October he spoke to Mr Jones and asked him what was going on (in the context of Sebel's participation in Clyde's tender): Mr Wright: My conversation with Mr Jones at the end of or during October, not the end of October during October was really revolved around when I'd seen the report in the paper. In which case I got Neville Jones in and asked him what the… is going on. Mr Foster: Right so it was the media announcement- - -? Mr Wright: Yes. Mr Foster: - - - in October that got you to get him to come in? Mr Wright: I spoke to Neville Jones every day. Mr Foster: And you said what to him on this occasion? Mr Wright: Neville Jones? On this occasion? On this occasion I asked Neville Jones what was going on. Mr Foster: And what did he say? Mr Wright: I can't remember his exact words. They were words to the effect that he still didn't know what the situation was. He still couldn't get a commitment from Clyde. I couldn't believe it. … His Honour: I took it from the way you answered a moment ago that you called him to come and see you to ask what was going on and I think you said a moment ago what the was going on. Now was I correct in taking that, please correct me if I am wrong, it was in effect without spelling it out for the transcript writer but it was fairly blunt, what the something, was going on with this contract? --- Mr Wright: To say the least your Honour. His Honour: To say the least. There was a word after the? Mr Wright: Yes. His Honour: And you saw Jones everyday but this was in effect calling him into your office to find out what was going on in no uncertain terms with this contract, with this job? Mr Wright: Yes. 317 Such a conversation may well have taken place; its bluntness was (if I may say so, without intending any disrespect to Mr Wright) something I could see Mr Wright exhibiting to Mr Jones. However, I think it more likely to have taken place somewhat later in October 1998 after Mr Jones' return from the request for a letter of intent; though I do not reject that it may have been on or about 9 October 1998. I am prepared to accept that by October 1988 Mr Wright wanted a written commitment. I see more basis for anger on his part when he was told of Mr Gabadou's understanding of what Clyde told Mr Jones, than on 9 October at the news of Clyde signing the contract with the SRA. 318 I am prepared to accept that from time to time Mr Wright encouraged Mr Jones to get a written commitment from Clyde. It may have been, especially in the light of the Process Protocol, that Mr Wright was anxious in 1998 for some expression in writing of Sebel's "preferred tenderer" status. From what Mr Jones was telling him, Sebel plainly was in that position, at the very least. He may well have encouraged Mr Jones to have that position formally expressed in writing. However, that does not gainsay the fact that Mr Wright also knew (Mr Graham having told Mr Jones and Mr Jones in all probability having told him) that other seating tenders had been called for by Clyde. It was plain, as Mr Gabadou said, that Sebel was effectively in the position of the preferred tenderer, with an enthusiastic prospective principal (the SRA) and a co-operative (in terms of technical development) prospective head contractor (Clyde) which was relying significantly on Sebel's tender. However, like Mr Gabadou, Mr Wright's experience and commercial caution perhaps refused to let him accept at the time that Sebel was exclusive in the strict sense, that is, in terms of a binding commitment from Clyde, until he saw it in black and white. That I am prepared to accept. It should never be forgotten that both Mr Gabadou and Mr Wright lacked the personal contact with Mr Graham and the Clyde representatives that Mr Jones had, and they had to understand what was going on without the benefit of access to Mr Graham's evidence and Clyde's documents that I have. From that removed perspective, they no doubt brought their experience and commercial caution to bear. With this in mind, I accept that Mr Wright, by October 1998, was of a similar view to Mr Gabadou: that Clyde had not expressed any written legal commitment to Sebel, though both Messrs Gabadou and Wright were of the view that in practical terms Sebel was the preferred tenderer and in all likelihood would provide the seating for the 4GT train. Each, however, had a nagging concern about another tenderer, given what they saw as the lack of written commitment by Clyde to Sebel and an apparent lack of willingness in Clyde to express any commitment. 319 Mr Wright gave evidence that he took two things from what he saw as Mr Jones' inability to secure a commitment from Clyde in October. First, he took it as an indication that Sebel was competing with someone else for the provision of seats to Clyde. Secondly, he thought that even if Clyde did prefer the Sebel seat it would not commit to Sebel because it wanted to "screw Sebel on price". I am prepared to accept that, after Mr Jones came back from Clyde in October 1998 without a letter of intent, and after Mr Wright spoke to Mr Gabadou as I infer he did, Mr Wright harboured the nagging concern that there was another tenderer and he entertained a suspicion about a possible price renegotiation. 320 Returning to the chronology, on 29 October 1998 Clyde produced a further cost estimate schedule. The figures used in that schedule were the same as those used in the 10 July 1998 schedule, and represented a discount of 2.5% on the Sebel tender price. 321 After October, and until December, 1998 Clyde went about dealing with the SRA and commencing to build the train. It was submitted by Clyde that after 13 October 1998 Clyde, Sebel and Invetech continued to work extensively together on the seating design. Invetech had by this time built a full set of prototypes for the passenger seating as it was then designed. These prototypes were delivered by Sebel in June 1998. There is little evidence of further design work in the latter months of 1998. There was evidence of Invetech doing some work on drawings and designs in February and March 1999 for a fee of $1,630. Mr Gabadou described this in cross-examination as follows: Mr Gabadou: That was not a further development work that they were doing there. They were just detailing some of the work that had been done basically, section site to use, etc, that's all. … Mr Foster: But you were aware of that work being done by them at that time, weren't you? Mr Gabadou: I don't recall whether I was actually aware of that. It was a fairly minor issue there in regards to what was requested from them in regards to the work and Bernard Fehon would have had the authority to make that decision. Mr Foster: And you see it's described as extra work, do you see that? Mr Gabadou: Yes, it is extra work because it was not obviously part of the scope of work they had sent. Mr Foster: Initial agreement? Mr Gabadou: Yes. 322 There was some evidence that Invetech wrote a program of work in October or November 1998. (See [382] below.) However, I find that with the original design, drawings and prototype having been completed by June, Sebel thereafter waited until December for the formal documentation to arrive. On the evidence before me I cannot conclude that there was design activity from mid-1998 until December 1998. I cannot conclude, as submitted by Clyde, that work at Sebel on the seat design proceeded unabated from July to December 1998. 323 On 1 November 1998, Mr Doman formally took up the position of General Manager of Sebel. Mr Wright ceased to be Acting General Manager. He returned to his position at GWA. 324 In November 1998 there was an internal Research and Development Department meeting at Sebel. The meeting did not specifically concern the Project. Mr Jones recalled Messrs Doman, Gabadou, Fehon and various others being in attendance. He also recalled Mr Doman saying that all projects had to be considered as stand alone ventures and that they should provide a return to Sebel in their own right, including research and development costs and tooling costs. Mr Jones said that he told Mr Doman that he thought that was ridiculous and that Sebel could not do business like that. Mr Doman could not recall that meeting, but agreed that he certainly held the view that Mr Jones said he expressed. I accept the evidence of Mr Jones. Mr Doman said that he had been brought in to lift Sebel's financial performance. Sebel had been seen by the GWA board as underperforming. One of the ways he went about the analysis of Sebel's performance was to look closely at the financial returns from projects on a stand alone basis. In effect, he saw change as very much within his remit. He said that it was his view that if capital expenditures were required for a project then an acceptable positive return on those expenditures should come from that project. 325 On 10 November 1998 Clyde finalised Engineering Specification ES-982, being the engineering specification for the passenger seating. The specification was prepared by Clyde having regard to the engineering specifications in the agreement between Clyde and the SRA. ES-982 provided for a seating configuration different from that in the specification on which Sebel's tender was based. I have set out the changes in configuration at [182] above. 326 On 22 December 1998, two further cost estimates schedules were produced at Clyde, both were stamped "draft". I infer that Mr Oliver, the estimator, was responsible for their production. It will be recalled that the cost estimates of July 1998 and November 1997 (the latter not being in evidence) included the Sebel train seating at a price 2.5% below Sebel's tender price. 327 The 22 December 1998 cost estimates were now based on the reconfigured specification ES-982. The first of the 22 December cost estimates had a reduction in seating to $239,711 per 4 car train set (the July estimate was $249,274, 2.5% below the tendered $257,664) including $110,063 for the 3 seater reversible seats therein. Some of this reduction in December can be accounted for by the changed configuration; but there appears to have been a reduction beyond this. In the second cost estimate schedule produced on 22 December 1998 there was a further reduction to $234,915 for a 4 car seat and $107,861 for the 3 seater reversible seats therein. 328 Under cover of a letter dated 22 December 1998 from Mr Sheldrick to Mr Jones, Clyde provided to Sebel the Consolidated Contract Documentation foreshadowed in the letter dated 2 June 1998. A minor variation to these documents was sent by Clyde the following day. The covering letter of 22 December 1998 was in the following terms: Further to your Tender Submission and all the post tender correspondence exchanged to date, we confirm providing herewith the following: Volume 1 : General Conditions of Contract and Contract Schedules Volume 2 : Statement of Work Volume 3 : Engineering Specification Volume 4 : Drawings and Project Deliver Schedule As to Volume 1 and Volume 2, the Consolidated Document contains those amendments that the Principal has been prepared to accept and are to be considered as non-negotiable. As to Volume 3 the Consolidated Document contains the Principal's requirements and Clyde's requirements and shall be considered as non-negotiable, although some non-material amendments may be accommodated during design development. You are also requested to complete the Contract Schedules (also supplied in electronic format) in line with your Tender Submission and the post tender correspondence, and confirm in finite detail, with associated clause references, what effect, if any, there has been on your offer. Confirmation of your offer is required no later than 1200 hrs, Friday 15 January 1999. We appreciate the timing of the issue of this information, and resourcing difficulties you may have during this period. Should you have any queries of a technical nature our engineers will be available from the 4th January 1999. [emphasis added] 329 The terms of the letter conformed with the procedure set out in the letter of 24 March 1998, the Process Protocol, and the letter of 2 June 1998. 330 Included in ES-982 were the following: (a) Clause 3.5.3.10.6 which provided for the seat width not to exceed 450mm (This was of no surprise or difficulty to Sebel because it had designed the seat to a width of 450mm.); (b) Clause 3.1.5.10 which referred to the shock loads on body attachments, repeating the requirements of SRA Specification No 4GT-S96-0301; (c) Clause 3.1.4.3 provided that the seats have a maximum average mass of 19kg per seat place; (d) Clause 3.1.4.3.1 provided: Although a maximum mass target has been specified, the sub-contractor shall put in place a program to minimise the mass of each of these seat designs. (e) Clause 3.1.5.8 provided that the minimum design life for the seating was thirty five years; (f) 9,388 seat places were required to be produced; and (g) Clause 3.5.3.10 which provided that the seat be tested to 75,000 cycles. 331 The proposed contract sent to Sebel on 22 December 1998 was different in a number of respects from the contract for which Sebel had submitted a tender in October 1997. One important difference was that the contract now dealt with ongoing maintenance obligations, for thirty-five years. Another difference (as referred to earlier) was the changed configuration of the seating. A further difference was the incorporation of a clause dealing with intellectual property conformably with the clause in the head contract referred to at [253] above. 332 First, as to the question of maintenance, the contract sent to Sebel on 22 December 1998 was a contract for the design, build, supply "and maintenance" of seating for the 4GT trains. I have already considered the question of the dealing by Sebel and Clyde with questions and data relating to maintenance and to their expectation that maintenance would be provided by Sebel, in addition to design and supply of the trains. The inclusion in the Draft Contract of provisions concerning maintenance thus came as no surprise to Sebel. It is undoubted that the maintenance obligations were serious. Mr Edwards said that it was a major part of the contract. Mr Graham gave the following evidence in cross-examination: Mr Jackman: It was an important prerequisite as you saw it for the finalisation of this contract that Sebel provide the prices for maintenance support as requested in your draft consolidated documents? Mr Graham: Yes, it was important. If at all possible we wanted to have the major suppliers responsible for their own product. However, in this particular case Clyde had formulated an estimate for maintenance and if for some reason Sebel did not finally agree or come close to that particular estimate that we had made at that time, Clyde may have decided to go forward itself with the maintenance but as far as the contract was concerned that was complete. 333 It is unnecessary to set out the individual terms of the Draft Contract concerning maintenance. It is sufficient at this point to say that two kinds of maintenance were contemplated: "routine" and "reimbursable" (equivalent to "scheduled" and "corrective" maintenance about which Sebel provided data in its tender response). Routine maintenance was the ordinary kind of work required to keep the seats in good order; and reimbursable maintenance related to out of the ordinary work arising from vandalism, collisions and such like. The maintenance was required for at least 15 years and up to 35 years. Payment for routine maintenance was a defined "Usage Component" which was calculated by adding a "Base Component", being a monthly sum identified in a schedule, to a "Variable Component" based on a rate identified in a schedule as dealt with in a formula provided for in the contract, less an "Availability Component", a "Disruption Component" as defined in the contract and sums due to Clyde because of Sebel's fault, plus a fee for the maintenance of a spare car. The schedules concerning maintenance called for by the Draft Contract provided the raw information on pricing to which these various formulae applied. 334 I will return to the question of maintenance and its relevance to the applicant's claims later in dealing with the state of consensus between the parties by late February or early March 1999. 335 Secondly, as to the change in seating configuration, I have already indicated that this had been made known to Sebel earlier in 1998. Mr Graham said that he had discussed changes in seat configuration with Sebel prior to 22 December 1998. Sebel was aware of the changes to the configuration well prior to 22 December 1998 and there had been no indication that the changes would make a difference to Sebel's base price per seat which he thought Sebel had used as part of its tender. The prototypes delivered in June reflected at least some changes to the configuration. Mr Graham thought Sebel's response to the changed configuration would be to apply the base price per seat to the number of seats in the new ES-982 configuration. It was submitted by Sebel that this last evidence of Mr Graham was at odds with Clyde's own cost estimate schedules of late December 1998. However, it accorded with what Mr Jones did in January 1999 in preparing his response to the 22 December 1998 correspondence. 336 However, it was the case that Sebel had not, prior to 22 December 1998, submitted a price for the ES-982 configuration the subject of the 22 December 1998 draft contract. Thus Sebel was asked in the letter of 22 December 1998 what effect on its offer there was arising from the documentation. No doubt any qualification or amendment to the offer would be looked at in the manner envisaged in the third last paragraph of the letter of 2 June 1998, see [223] above. 337 A third difference between the terms of Clyde's request for tender of 1997 and the draft contract documents of 22 December 1998 concerned intellectual property. I have already outlined the position up to the inclusion in the Draft Documentation of a clause (clause 9.3) conformable with the equivalent clause in the head contract. I will not repeat the terms of that clause. (See [253] above.) 338 However, clause 9.3 was noticed at the time by Mr Jones. It did not gain his approval. He said the following in oral evidence in chief: Mr Foster: Could the witness be shown volume 10 of the tender bundle and I ask you, Mr Jones, to have a look at 3193? There at 3193 and 3194 is a clause 9.3 in this proposed formal contract which deals with intellectual property, see that? Mr Jones: Yes. Mr Foster: Did you notice that clause particularly when you received this document? Mr Jones: Yes, I believe I did look at this particular clause but I felt that because we had made this abundantly clear in our earlier tender that this was - and it was understood in my view by Clyde - my feeling was that this inclusion here was perhaps because they may not have been thorough enough to look at this in relation to the preparation of this contract because this is an area that, as I said, we'd made clear on at least two previous occasions. Mr Foster: And it would appear from looking at this document and from what you have said that what was to be done precisely with intellectual property had not as at the date this document came to you been finally resolved? Mr Jones: No, it had not. … Mr Foster: What would you have done to sort out this, as at December, unresolved problem? Mr Jones: Previous experience at dealing with those sort of issues would have been that this would have been a management decision at Sebel and then it would have become an item for negotiation with Clyde Engineering. Mr Foster: Would you have negotiated with Clyde Engineering over that? Mr Jones: Yes. … Mr Foster: Had you ever had a contract fall over, over intellectual property? … Mr Foster: Had you ever had a contract fall over? Mr Jones: No. … Mr Foster: Did you yourself regard this question as a deal breaker in this particular case? … Mr Jones: No. Mr Foster: Did you believe at the time, that '97, '98 and into early '99, that Sebel's position on intellectual property was a rational one? Mr Jones: Yes. Mr Foster: And a reasonable one? Mr Jones: Yes. Mr Foster: But as at January 1999 Sebel was keen to get this job, wasn't it? Mr Jones: Yes. Mr Foster: Were it necessary to sort out the question of what was to happen with intellectual property would you have approached that task, from your perspective, in a genuine endeavour to resolve any differences between you and Clyde? Mr Jones: As I said earlier it wasn't really just my decision, but being involved and running the project my approach would have been to take this particular issue forward to the rest of the Sebel executive group and work out how we would approach the problem and how we might go about resolving it. If I can explain, on the Sydney Olympic Stadium there were contractual issues that were in the sub contract documents that were not acceptable to Sebel and we negotiated those changes in conjunction with Multiplex who were the builders and we came to a mutually agreeable position in relation to those changes. Those changes did not cover IP matters but they covered other contractual matters. His Honour: If the question of licensing in any intellectual property design or patent or other had arisen licensing exclusively or non exclusively had arisen in the end of 1998 and 1999, who would have been involved in making decisions as to whether any license of Sebels intellectual property should be given and this is a general question. Don't worry about this job, I mean was there someone, was it a board decision or was it a management decision, to your understanding? Mr Jones: To my understanding it would have been a matter that would have been dealt with within Sebel executive management which at that time was the general manager, the commercial manager and the manufacturing manager, together with myself in terms of I was the one dealing with the project. I accept this evidence. Thus, it is plain that the question of intellectual property required further discussion and agreement between Clyde and Sebel. 339 Fourthly, there were a significant number of terms and conditions (both general and special) which were in different form to that contained in the 1997 tender. Some terms were new. There was no evidence that these changes had been discussed between Sebel and Clyde before 22 December 1998. 340 Further cost estimates were printed up by Clyde on 23 December 1999. As I have said, two cost estimates had been produced on the previous day. The two cost estimates dated 23 December 1998 were produced within a little over an hour of each other. Mr Oliver, the estimator and Mr Graham signed the first as preparing and approving the document, respectively. The second was prepared and signed by Mr Oliver and signed as "received" by Mr Graham. These estimates, not stamped as drafts, reflected the same seat costings as appeared on the two (different) cost estimate schedules on the previous day. 341 Early January 1999 or late December 1998 saw a resumption of the demands by Clyde on Sebel in terms of technical co-operation in respect of the seats. In December 1998 request was made for drawings of the latest version of the reversible seats. A further request was made on 5 January 1999 by Mr Thomson, one of the Clyde engineers, for drawings. He also passed on further questions from the SRA. 342 On 15 January 1999 Mr Jones responded to Mr Thomson's request of 5 January 1999 in the following terms: Thank you for your fax dated 5th January. We are arranging for our Design Department to forward the drawings for the prototype seat. In regard to the queries raised by the State Rail Authority in their letter dated 4th January our response to the various points are as follows: [Thereafter there were set out eight answers to specific technical issues raised.] Sebel would like to set up a regular project co-ordinated meeting with Clyde and will contact you to arrange suitable times. 343 On 18 January 1999 Mr Thomson responded to this letter from Mr Jones. He pointed out various relevant provisions of the contract specification. The facsimile also stated: The idea to set up a regular meeting between Sebel and Clyde is a sound one and we would wish to start this as soon as possible. With this in mind, could you contact me as soon as possible to arrange the first meeting and we can then work out an agenda and list of attendee's [sic]. 344 By letter dated 18 January 1999, signed by Mr Jones, Sebel provided various schedules called for by Clyde's correspondence of 22 December 1998. The covering letter stated: We are pleased to supply the following schedules for your consideration. The important points to note in regard to these schedules are:

1. The price for seating remains as previously quoted and prices are firm for the duration of Stage 1 (20 train sets). Prices for Stages 2 and 3 will be subject to rise and fall.
2. Not included in the pricing schedules is the additional charge for public liability and public indemnity insurance. We indicated in our original bid that to provide the level of insurance as set out in the documents then and additional charge of $969,000 to cover the additional premium would be required.
3. Cost of testing and maintenance operation manuals have been included.
4. Schedule B2.2.1 - Base & Variable Components for Maintenance Stage 1, Stage 2 and Stage 3. We have not completed this section because we are not in a position at this stage to estimate likely component usage.
5. Schedule B6.3 - Customs Duty and Primage, Stage 1, 2 and 3. We have listed here only the cost for 1 meter of fabric as at this stage we are unable to estimate usage for maintenance. Bearing in mind the suppliers Reatex have indicated the fabric should last in excess of 10 years. To enable us to complete these two sections it would be necessary for us to have some discussion.
6. We have reviewed the contract documents and indicate that it has no effect on our offer. Please do not hesitate to contact us if there is any further information that you require. [emphasis added] 345 Schedule B2.1.1 contained prices for the seating for each of the twenty train sets to be delivered as part of Stage 1. The price for seating per train set was stated to be $248,264. The price for one particular train set was stated to be $314,560 because it included an extra car. The reduction in price from $257,664 (in the original tender) to $248,264 thus reflects the effect of the reconfiguration of the seating. (Thus, the two figures in Clyde's cost estimates prepared on 22 and 23 December 1998 of $239,711 and $234,915 can be seen as 3.445% and 5.368% below the reconfigured Sebel tender price.) 346 Mr Jones gave oral evidence as to how he arrived at the prices in Schedule B2.1.1. The effect of that evidence was as follows: (a) He prepared a worksheet by way of a foolscap sheet of paper and he put down the seating requirements for the two different types of cars: motor car and trailer car. (b) The seating requirements were as set out in the material sent to Sebel on 22 December 1998. (c) Mr Jones then determined the break up of those seats as per the schedule and he calculated from the tender price in October 1997 the cost of those seats and extrapolated that across to create the calculation shown in schedule B2.1.1 for each of the twenty train sets. (d) Mr Jones recognised that the 5 person fixed seats and a couple of other associated fixed seats were no longer part of the requirement manifested. Mr Jones did not simply delete those prices. As the pricing was calculated by working out a per seat price and then extrapolating that per seat price into various unit prices, Mr Jones simply divided the 5 seater price used in Sebel's tender response by five and then multiplied it by three to get the price of a fixed 3 seater unit. (e) Schedule B2.1.1 did not include the $30,000 figure for testing or the $10,000 for manuals included in the October 1997 tender response. These amounts were, however, included in the schedules . 347 When Mr Jones said in his covering letter dated 18 January 1999 "[t]he price for seating remains as previously quoted", he was referring to the per seat space prices in Sebel's tender response in October 1997 - as is obvious from the process that Mr Jones went through to derive the prices attached to the 18 January 1999 letter. That is to say he applied precisely the same prices (reversible or fixed, as the case may be) per seat space as he had included in Sebel's tender response in October 1997 to the revised and final configurations. Given that Clyde itself had discussed the seating as a per seat space basis I have no doubt that the approach of Mr Jones and the basis for the make up of the 4 car sets would have been evident to Clyde on examination of the schedule. In any event a breakdown was set out in a later schedule, schedule B2.1.5, which enabled a calculation to be made that $552 per seat space was used for reversible seats, $490 per seat space for fixed seats and $510 for the tip up seats. 348 Schedules for supply of Stages 2 and 3 were completed (subject to rise and fall): schedules B2.1.2 and B2.1.3. A schedule breaking up the cost per car was given for Stages 1, 2 and 3 (the latter two being subject to rise and fall): schedule B2.1.4. A breakdown of prices per train set was given: schedule B2.1.5. A schedule providing details for the rise and fall calculations called for by provisions of the General Conditions of Contract was given: schedule B2.1.7. 349 Schedule B2.2.1 concerning base and variable components for maintenance, as the covering letter indicated, was not completed and concerned maintenance of Stages 1, 2 and 3. 350 Schedule B2.2.2 dealing with unit cost for reimbursable maintenance work was provided. 351 Schedule B2.2.3 dealing with pricing basis for variations, reimbursable maintenance work and modification work was provided. 352 Other schedules for custom duty and primage (B6.1 and B6.3), major suppliers, sub-contractors and consultants (B7) and period for practical completion (B19) were provided. 353 The 18th of January 1999 was also the date of the first monthly report of Clyde to the SRA under their contract. Mr Graham apparently drafted this report. One of the topics dealt with was "major supplier contracts". Under that heading the following appears in the Report:

Further factual discussion 460 Before turning to the legal submission of the parties it is appropriate to examine further some factual issues, drawing and elaborating upon the above factual history. These topics are: (a) the extent of any of the technical difficulties outstanding as at March 1999, in particular as brought about by the specification changes in December 1998; (b) the views of the parties as to the existence of obligations and as to the relationship of the parties; and (c) the state of consensus between the parties about the documentation sent to Sebel on 22 December 1998.

The extent of the technical difficulties 461 Sebel submitted that a number of technical issues remained outstanding at February 1999. This was put forward, at least in part, in support of the submission that the parties had not reached a point of agreement. These matters included delivery times for design reviews, location and positioning of the seating in the carriage, the change from 15,000 to 75,000 cycles, the deceleration requirements, the fixing of the seating to the walls and floor of the carriage, the pitch of the seat and the load interface of the seat with the carriage. 462 Sebel put forward Mr Payne, an employed mechanical engineer, as a witness. He dealt with some of these issues. From June 1997 to May 1998 he was the Manager of Sebel's Research and Development Department. From May 1998 to May 2000 he was Sebel's Senior Design Engineer. He remains at Sebel, once again holding the position of Manager of the Research and Development Department. Without wishing to be disrespectful to Mr Payne, I gained the impression during his evidence that he appreciated what Sebel's interests in the litigation were and that any concession against those perceived interests had to be extracted from him only with a display of both precision and determination. 463 In his affidavit of 22 January 2002, Mr Payne sought to identify certain matters which, from a technical perspective, were of concern to him. These technical matters arose both from the December 1998 specification and the way in which the Project had in part (post Sebel's departure) been undertaken. 464 The first matter raised by Mr Payne was the configuration of the seating and the way in which certain panelling had been in fact used in the design of the seats which have been placed in the train. Mr Payne identified the necessity to go outside Sebel's skills for what he saw as a change to that which he had anticipated under the tender. I see no relevant technical difficulty extant in March 1999 which might have affected the willingness of the parties to contract. The specifications (in the tender and in December 1998) may have had sufficient vagueness about them as to provoke future dispute on variations. However, no-one identified these matters during 1998 or 1999 as matters of such seriousness that they could not be dealt with in the ordinary course of design development after contract. Indeed configuration, as I have found, was discussed in 1998 well before the delivery of the new specification. 465 Mr Payne also referred to the width of the seat. This was a hypothetical difficulty only. Sebel had in fact designed the seat to the width in fact called for by the December 1998 specification. 466 Mr Payne referred to the loads. He said that Sebel had not been provided with certain information. In cross-examination he said the following: Mr Payne: Just how the structure of the train was going to take the seat. We needed to know the fixing areas the size of the bearing members so we could distribute those loads evenly across the floor of the train without making the floor of the train buckle. Mr Foster: But you were designing the seat throughout the latter part of 1997 and 1998 with the details that you had from the specification in mind, weren't you? Mr Payne: Yes. Couldn't complete those designs without the structural members of the train being known. 467 This may be so, but it does not detract from the fact that even after contracting, in a job of this kind, there will almost certainly be design and detail variations, which may call for changes or design work. Such work will then be assessed by reference to the provisions of the governing contract dealing with variations. 468 Mr Payne then dealt with the weight of the seat. Once again he had resort to what Clyde had asked its designer to do after Sebel's departure. It raised no difficulty of a technical kind as at March 1999. 469 None of the matters raised by Mr Payne forms a basis for concluding that any aspect of what he raised evinced an objective factor tending against the readiness of the parties to contract from 1998 onwards. There was certainly no lack of available certainty in design to tend against an objectively formed contract, if the circumstances otherwise threw that up. None of the enquiries of Invetech in 1999 threw up any such difficulty. 470 Mr Fehon's only real concern was a temporal one. 471 Mr Gabadou's evidence did not raise matters which could not have been expected to be dealt with in post contract design variations. 472 The cycle testing question had been considered by Mr Payne in 1998 and thought not to be a problem. 473 The fact was that if Clyde had asked Sebel to sign a written contract in August 1998 Sebel would have gladly done so. Mr Wright said as much. None of the discussions between Mr Graham and Mr Jones in 1999 or between the Clyde and Sebel technical people revealed any difficulty about design of a kind to affect or impede the parties entering a contract based on either the earlier or later specification.

The views of the parties as to the relationship and obligations 474 I have already made comment on some aspects of the evidence of the witnesses. I do not wish to repeat unnecessarily what I have said. Important for the estoppel and s 52 cases, and, on one way it was put, the contract case, were the beliefs and understandings of the parties, from time to time, about matters going to Sebel's obligation to proceed. 475 Without for one moment implying any dishonesty on the part of Mr Jones, Mr Graham and Mr Sheldrick, it is fair to say that each of them gave evidence from an after the fact perspective which tended, I think, to lead them to rationalise matters into legal constructs in order to deal with what they genuinely saw at the time (when it arose in March 1999), and now see, as unethical conduct of Sebel. This episode has cost Clyde some millions of dollars. A court case has been fought at not inconsiderable expense. Mr Graham and Mr Sheldrick were handling matters from Clyde's point of view. Mr Jones put a significant effort over a long period of time in developing and nurturing a significant commercial opportunity for Sebel. He developed a close working relationship with Mr Graham. He was, I think, embarrassed by what he saw as Sebel's unwise and unethical conduct. These considerations must be borne in mind in weighing the evidence of these men, in particular the evidence that at the time each thought that Sebel had entered a legally binding obligation to provide the seats pursuant to the original tender. 476 I draw a number of conclusions about Mr Jones. First, he did not at any time state to Mr Doman that Sebel was contractually committed to Clyde. If he had really thought so at the time I think he would have said so. Saying, as he may well have done, that he had "agreed a price" did not do so. It must have been plain to him by late February that Mr Doman was considering walking away from the Project. If he thought Sebel was contractually bound I think he would have said so, in words of one syllable. Secondly, Mr Jones most definitely believed, until Mr Doman's views became known, that Sebel and Clyde would enjoy a contractual and business relationship in the 4GT Project. He believed that Sebel was the only real tenderer and had always been so. He believed, and had confidence, in the virtual certainty of Sebel providing the seating. Thirdly, no real occasion arose for him to turn his mind to the existing legal relationship of Clyde and Sebel until Mr Gabadou asked for a letter of intent. Mr Jones was not told by Mr Sheldrick that there was already a contract or that Clyde had accepted Sebel's tender by the letter of 13 October 1998; he was told that a contract (in the form of documentation) would be provided shortly. Mr Jones did not see what Mr Sheldrick said to him as undermining his expectation as to the likely certainty of the relationship, but also he did not see it as a statement of a presently binding legal commitment. If he had done so, he no doubt would have said this to Mr Gabadou in October 1998, Mr Wright in October 1998 and Mr Doman in January, February or March 1999. In any event, at the time of the request for the letter of intent the commitment of Sebel was not an issue. Fourthly, Mr Jones thought that Sebel in March 1999 was breaking a moral and ethical commitment to Clyde and that it was behaving in a way that he had never seen Sebel exhibit before in relation to a customer. Fifthly, I do not think that in 1998 or 1999 he had a specifically formed belief about the state of legal relations between the parties. His views were as I have described. 477 As to Mr Graham and Mr Sheldrick, there is much to point to the view that in 1998 and 1999 they similarly thought along lines of the likelihood that Sebel would supply the seats, rather than of the existence of legal relations. Some of the communications and notes in 1998 and 1999, have a tendency to indicate that Clyde did not view Sebel as contractually bound. However, Mr Graham and Mr Sheldrick knew of the tender validity period. It was not extended past 27 November 1998, after 13 October 1998. I find that this was not an oversight. Mr Sheldrick's job was to attend to such contractual matters. He struck me as a man of careful habits. His documentation reflects that. Neither Mr Graham nor Mr Sheldrick thought it necessary to extend the tender validity date. It is important to recall why they said that they had that view. Each said that he thought that what had passed between the parties hitherto, in particular, if not exclusively, the correspondence sent by Clyde, had bound Sebel and made any extension of the tender validity period unnecessary. Neither refrained from some more clear overt act to bind Sebel on the faith of any representation of Sebel or of anything Sebel had done. They were both content to rest their conclusions on what had passed between the parties up to and including October 1998 as contractually binding Sebel to provide seating pursuant to its October 1997 tender. The agitation exhibited by both in February 1999 is perhaps explicable on the basis that whilst each had thought Sebel to be bound, making the extension of the validity period unnecessary, each nevertheless was unnerved by a looming problem, in respect of which they could foresee that they would be seen as the responsible parties at Clyde. 478 It is important at this point to deal with the submissions of Sebel about Clyde's intentions concerning future possible price negotiations. Much of the force of the submissions derives from the cost estimates and the cross-examination thereon. Mr Graham initially accepted the description of those estimates as the most reliable and accurate estimate that Clyde could set out for the various costs Clyde would incur, that is that it intended to incur, in performing the proposed contract with the SRA. In the light of the evidence of a board instruction that, at least, dealt with how sub-contract prices were to be dealt with in Clyde's tender to the SRA, Sebel submitted that I should find that the board instruction and Clyde's intent was to seek to reduce Sebel's prices from those set out in the October 1997 tender. This explained, according to the submission, why Clyde did not expressly and clearly accept Sebel's tender and why Clyde refused Mr Jones' request for a letter of intent: Clyde did not wish to commit itself to Sebel, for to do so would prejudice its future negotiating position with Sebel. 479 The evidence about this was less than complete. Mr Graham accepted that it was possible that he may, in the future, have asked Sebel if it could improve on its price; but he denied that he had any actual intention to do so. He said the Sebel price was acceptable. Neither Mr Graham nor Mr Sheldrick had put to them that the board instruction required them to go back at some stage to renegotiate the price of Sebel's seating to any particular level. However, there was no satisfactory explanation of the various figures in the cost estimates. Mr Oliver was not called to give an explanation of their creation and the reasons for the figures included. I am left with the uneasy feeling that there was more to the inclusion of the various figures in the costings than the evidence disclosed. I am unable to take the matter any further. Having seen Mr Graham, I accept his evidence as truthful that he had no intention to renegotiate price. I do not find that there was a board instruction that this be done. I am not able to conclude what the cost estimates were intended to achieve or disclose. Given the alternative prices in the draft estimates of 22 December 1998 and the signed estimates of 23 December 1998 it is difficult to accept that they were what Mr Graham at one point accepted: the most reliable estimate of what Clyde expected to pay Sebel. When Mr Graham appreciated the intended context of these words by the cross-examiner there was a degree of debate about their importance. Without further explanation beyond that which I was given, I cannot make a finding as to the purposes of inclusion of the different figures in the cost estimates. Whilst I am prepared to accept Mr Graham's evidence about not having an actual intention to renegotiate Sebel's prices, I cannot draw that conclusion about others at Clyde who did not give evidence. Though, it must be said, the evidence is not sufficient for me to infer that others, such as Mr Hancox, had that intention. 480 What has troubled me, to a degree, is why Clyde was not clearer in its communications with Sebel, on and after 8 October 1998, if Mr Graham and Mr Sheldrick were of the view that Clyde and Sebel were committed to each other legally, by way of enforceable contract. I have found that Mr Graham and Mr Sheldrick thought Sebel was bound. Whether they were right or wrong about that is a matter for me to decide. However, what is plain is that they did not seek to make clear to Sebel in writing, or indeed orally, that there were binding legal relations between the parties. It is not a good enough explanation for the absence of this kind of communication for Clyde to submit that the matter was so obvious that it went without saying. It did not. Mr Jones asked for a letter of intent - something understood in this industry as a form of commitment. It was not refused as unnecessary on the explanation that the parties were committed. It was refused in the context of the delivery of documents in accordance with a regime set out in the letters of 24 March 1998, 2 June 1998 and the Process Protocol, all of which maintained a careful and deliberate process leading up to contractual formation at, or sometime shortly prior to, the execution of final documentation. 481 I think that the probable explanation of this was the desire of Mr Sheldrick and Mr Graham to maintain uniformity of written treatment of all prospective sub-contractors. Sebel was given the standard letters sent to all. Precisely why this was done with a party whom Messrs Graham and Sheldrick thought was legally committed is not clear. They may have entertained a view that Sebel was committed, but that Clyde had a certain freedom of action. In one sense that did not really arise because at no relevant time did Clyde have any intention of using any seating supplier other than Sebel. Why Clyde did not make its communications with Sebel clearer can be left as an unanswered unnecessary question. It sent and made the communications it did. They are to be judged objectively in the context in which they occurred to assess the existence or not of agreement and an intention to be legally bound. 482 As to the actors at Sebel, other than Mr Jones, Mr Gabadou did not think there was a contract. He thought, from what he had been told by Mr Jones upon the latter returning from his request of Clyde to issue a letter of intent, that Clyde would not commit itself to Sebel until execution of a written contract. He thought (not from what Mr Jones said to him) that there was another tenderer, though he thought that Sebel was "preferred" and, as I have described, his view about another tenderer can perhaps be described as a nagging doubt. He probably passed these views on to Mr Doman. 483 Mr Wright knew that Clyde had used Sebel's design in its tender and he knew in 1997 that Sebel was not in a truly competitive position. However, he thought (like Mr Gabadou) that Clyde had not legally committed itself in a binding way to Sebel. He had a nagging doubt about another tenderer and thought that there may be further price negotiations. If he had read the Process Protocol and Clyde's correspondence of 24 March 1998, 2 June 1998 and 13 October 1998 which as General Manager, I infer he did, and understanding what Mr Gabadou thought, he was entitled to hold these views. 484 Mr Doman, I accept, did not believe there to be a contract binding Sebel. No one told him that that was the case, nor was it his view that that was the case. He did know from what he had been told that Clyde had relied on Sebel, had bound itself to the SRA and was now saying that Sebel's changed attitude would put Clyde in an invidious position. He was prepared to use these circumstances better to position Sebel in gaining a price increase. In the light of what he knew as to Clyde's position, I find that he appreciated that the request for a doubling of the price for Stage 1, if persisted with, would probably terminate the relationship. It is unnecessary for me to pass upon the competence of Mr Doman's handling of the matter. On the understanding of the business and the Project that he had in March 1999, his approach was underpinned by his view of the need for the Project to pay for itself on a stand-alone basis. On this basis, he decided in March not to proceed any further with the Project at the price hitherto quoted. This was done in what he saw as the interests of Sebel. He was also seeking to act decisively in his first display of executive authority under the stern gaze of Mr McGrath and the GWA board. He was aware of Clyde's position (as they stated it) as being without a replacement for such a major component. He saw that as Clyde's problem. In the absence of any binding commitment by Sebel (in his view) he saw Sebel as in a position to dictate terms to Clyde. Mr Doman insisted that he was at all times willing that Sebel undertake the Project. However, that evidence must be interpreted as Mr Doman being so willing only on restated terms, after Clyde was bound to the SRA, which restated terms he must have known would be unacceptable to Clyde.

The state of consensus between the parties about the documentation sent to Sebel on 22 December 1998 485 During the course of his cross-examination, Mr Graham said the following about the position of the parties on 1 April: …We had not received a conforming set of schedules from Sebel, particularly in regard - the seating price had been and was A okay, but the maintenance still wasn't and they still showed that or informed us that they did want to participate in maintenance, so we were trying to have that finalised. 486 This neatly summarised the position. There were matters outstanding. They related to maintenance. They probably involved little further discussion. However, their absence as Mr Graham related was real. This was also reflected in Mr Sheldrick's note of the meeting of 26 February 1999 in his use of the words "review and complete". 487 There was further discussion and agreement necessary on the question of intellectual property. 488 By mid-March Sebel was stating to Clyde (at the meeting of 15 March 1999) that there was a need to resolve contract negotiations. 489 It was apparent from the conduct of the parties that after 22 December 1998 the parties were treating the contract to be made as one composite agreement, including maintenance. I do not think that the parties intended to enter contractual relations in respect of one aspect of the arrangement and not maintenance. The agitation and expressions of unhappiness of Mr Graham and Mr Sheldrick in February and March reflected objectively the lack of a contract based on the 22 December 1998 documents, or any part thereof, whatever may have been their views about Sebel being bound by October 1998 to its 1997 tender.

The contract claims 490 The contractual analysis of the applicant began by stressing those cases which have made it clear that strict offer and acceptance is only one way, not the only way, of contractual formation. In some circumstances, even where there is no clear act of acceptance of a clear offer, the facts can be such as to lead to the conclusion that in all the circumstances an agreement is to be inferred: see especially the comprehensive exposition of the cases by Heydon JA in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 176-79 [71] to [81]; and see also Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at pp 11,117-11,118 per McHugh JA (Hope and Mahoney JJA concurring); Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 555 per McHugh JA (Samuels JA concurring); and Branir, supra at [369] to [370]. 491 The applicant also stressed the need for the application of commercial commonsense and the need for the Court to "strive to give effect to the expressed arrangements and expectations of those engaged in business, notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out": Ormiston J in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32, 67. To this can be added what was said by Steyn LJ in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194, 196: The theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, this criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness. 492 However, none of these expressions of principle and guidance suggests or sanctions an approach whereby the ethical or moral merits of a commercial set of circumstances is assessed and a body of obligations thereafter is imposed, implied, or sculpted to protect the reasonable expectations of the innocent party merely because it is the victim of the unworthy behaviour of the other. See in this respect Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 407 per Brennan J, Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25, 44 per Lee J, and Cole J writing extra-judicially "The Concept of Reasonableness in Construction Contracts" (1994) 10 BCL 7, 12. 493 If there is no clear offer and acceptance, it is necessary to examine the circumstances to ascertain whether the parties must be taken to have intended, at or prior to some relevant time or point in their mutual affairs, to have bound themselves to an identifiable, perhaps not complete, contract. It may be that the parties have first sought to negotiate on a central question, say price, such that once that is done there may be seen to be a core agreement intended to be overtaken by further terms: see Australian Broadcasting Commission v XIVth Commonwealth Games Ltd, supra at 543. 494 However, in this search the comments of Lord Greene MR in Eccles v Bryant [1948] 1 Ch 93, 104, quoted with approval by Heydon JA in Brambles, supra, should be recalled: Parties become bound by contract when, and in the manner in which, they intend and contemplate becoming bound. It is a question of the facts of each case. 495 The words of Gleeson CJ in Australian Broadcasting Commission v XIVth Commonwealth Games Ltd, supra at 550-51 are apt to the assessment of contractual relations in this case and bear repetition, in particular because of the abundance of evidence before me of subjective beliefs (sometimes contradictory) made relevant by the estoppel and s 52 cases pleaded. 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, communications by one or other of the parties with some third party, 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. This is not one of those exceptional cases where subjective intention is directly in question. Nobody suggests that in the course of their negotiations the representatives of the parties were joking, or doing or saying anything that was intended to be taken other than at face value. It was common ground that they were set upon the ultimate creation of legal relations. Nor did the case concern one or other of the subjective matters referred to by McLelland J, in Film Bars as involving the actual state of mind of one or more parties to a contract, such as mistake, misrepresentation, duress or undue influence. 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] 496 The only qualification that I would respectfully make to those comments, in the circumstances of this case, is that subjective state of mind is relevant and admissible before me in relation to the s 52 and estoppel cases, in particular on questions of reliance and, as I have earlier said, it may be that evidence of what a person thought at a particular time can throw light on what in fact had happened up to that point and so be a fact relevant to a fact in issue. As to this latter point, there was no real debate here as to what happened at any particular meeting involving the parties. Nor was there any debate about the content and context of written communications. Thus, there is little, if any, role for what the parties thought in order to assist in concluding what did in fact happen. 497 Here, the parties did not merely go about their commercial business without attending to any formalities. The context in which events are to be viewed is the calling for, submitting and evaluation of tenders in a large and complex construction contract. The dispute in question concerns one, though a not unimportant, sub-contract necessary for Clyde to organise underneath its own tender to the SRA. That mutually known context is relevant. From the early days of co-operation, when Mr Jones could draw the conclusion that Sebel was not in a truly competitive situation and when Sebel indicated to Clyde that they would tender exclusively to Clyde, the parties exhibited close technical co-operation. Those closest to that co-operation, Mr Jones and Mr Graham, during 1997 and 1998, had the belief and expectation that Sebel would be supplying the passenger seating for the train. If, in the wake of this co-operation and mutually held expectation, the parties had left the documentation of their position fall into abeyance, that might have been seen as a circumstance that assisted in the drawing of an inference that the parties involved behaved in that way because they regarded themselves as bound to the essential elements of a contract and manifested that view by their lack of need for documentation in a context where Clyde intended to bind, and had bound, itself to the SRA relying on Sebel's tender, to the knowledge of both parties. 498 Here, however, at no time did Clyde abandon or set aside the tendering processes and procedures common to all its prospective sub-contractors. It did not let matters of procedure and contractual relations fall into abeyance. A tender was sought not only from Sebel, but from three other entities. The tender validity period was extended on a number of occasions. The Process Protocol was sought and provided. It was not a document made redundant or unimportant to this particular relationship by the words and conduct of the parties. It was put forward to Sebel by Clyde as an important and underpinning document setting forth the structural approach of the parties to the formation of legal relations between them. It was never abandoned, nor resiled from, by Clyde, or Sebel. The letter of 2 June 1998 re-emphasised the governing of the procedural steps in contracting by the Process Protocol. These documents are not to be brushed aside as the private correspondence style of Mr Sheldrick, which can be outweighed or neutralised by the strength of the commercial or business dealings between Mr Jones and Mr Graham as a more potent form of reality. Clyde was at pains to document its position in relation to Sebel. It may be seen as wanting to keep control of the prospective sub-contractors in a way which allowed it maximum flexibility to formulate its contractual position with the SRA. That was made clear by the Process Protocol and the correspondence of 24 March 1998 and 2 June 1998.

Contract A 499 The first contract pleaded, "Contract A", was to the effect that in submitting its tender on 23 October 1997 and in consideration of Clyde accepting the tender and including that tender as part of its tender to the SRA, Sebel agreed that in the event that Clyde was accepted by the SRA as the successful tenderer and thereafter entered an agreement with the SRA for the supply of trains, it would supply passenger seating in accordance with its tender at the fixed price per seat space together with other fixed costs set out in schedule 1B of its tender for Stage 1 and subject to rise and fall for Stages 2 and 3. 500 The contract was said to be varied in late April 1998 to increase the number of testing cycles from 15,000 to 75,000. 501 Clyde says that at least upon notification of Sebel on 8 and 13 October 1998 of the fact that Clyde had signed a contract with the SRA, if not on 8 October 1998 when it in fact signed the contract, Sebel became contractually bound to supply passenger seating in accordance with its tender. 502 The contract as pleaded owes much to some Canadian cases. In The Queen v Ron Engineering & Construction (Eastern) Ltd [1981] 1 SCR 111 the Supreme Court of Canada dealt with a tendering arrangement in which the tenderer sought to withdraw its tender without penalty (a deposit having been lodged) upon discovery of a mistake in its tender. The owner purported to accept the offer and when the tenderer would not execute a contract the owners purported to forfeit the deposit. The action was by the tenderer to recover its deposit. It failed. The terms of the tendering documents made clear that the tenderer could not withdraw its tender for sixty days. Estey J, delivering reasons on behalf of the Court said at pp 119 and 121: …There is no question when one reviews the terms and conditions under which the tender was made that a contract arose upon the submission of a tender between the contractor and the owner whereby the tenderer could not withdraw the tender for a period of sixty days after the date of the opening of the tenders. Later in these reasons this initial contract is referred to as contract A to distinguish it from the construction contract itself which would arise on the acceptance of a tender, and which I refer to as contract B. Other terms and conditions of this unilateral contract which arose by the filing of a tender in response to the call therefore under the aforementioned terms and conditions, included the right to recover the tender deposit sixty days after the opening of tenders if the tender was not accepted by the owner. This contract is brought into being automatically upon the submission of a tender. … I share the view expressed by the Court of Appeal that integrity of the bidding system must be protected where under the law of contracts it is possible so to do. …Contract A (being the contract arising forthwith upon the submission of the tender) comes into being forthwith and without further formality upon the submission of the tender. … 503 The first and very important aspect of this Contract A was the binding of the tenderer to the irrevocability of the offer in the tender in accordance with any non-revocability provision in the tender documents. 504 Estey J went further than identifying the non-revocability of Contract A. He dealt with what he described as the "corollary term" in Contract B. At pp 122-3 Estey J said the following: Consequently, contract A came into being. The principal term of contract A is the irrevocability of the bid, and the corollary term is the obligation in both parties to enter into a contract (contract B) upon the acceptance of the tender. Other terms include the qualified obligations of the owner to accept the lowest tender, and the degree of this obligation is controlled by the terms and conditions established in the call for tenders. 505 Applying that structure to the circumstances here, once the SRA commited itself to Clyde, the proposition would be that Clyde and Sebel were bound to enter into contract B - that is the contract represented by Sebel's tender of October 1997. 506 Romilly J in the British Columbia Supreme Court in Fred Welsh Ltd v BGM Construction Ltd (1996) 10 WWR 400 dealt with the case of a head contractor awarding the sub-contract to a tenderer different from the tenderer which it had included in its winning tender to the principal. Romilly J adopted as a "broad policy" approach the dictum of Estey J in Ron Engineering, supra, that "the integrity of the bidding system must be protected where under the law of contract it is possible so to do". Romilly J applied Ron Engineering, supra, to the contractor/sub-contractor context, and in particular what Estey J had said about the "corollary term" covering contract B. At [29] Romilly J said: …There is, however, in my opinion, a slight change in the analysis when applied to subcontractors. All those subcontractors who submit bids to the contractors are bound by a Contract A. The only Contract A to survive belongs to the subcontractor whose bid is "accepted" by the contractor. The contractor is only obliged to award the subcontract to that successful subcontractor if the owner accepts the contractor's tender. Should the owner fail to do so this ends the obligations between the parties. [emphasis added] 507 Romilly J then went on to discuss the cases in Canada which dealt, variously and inconsistently, with the question whether the contractor/sub-contractor contract of supply (Contract B in Ron Engineering, supra) required any separate act of nomination in the head tender or whether it arose upon the head contractor winning the head contract, having used the sub-contractor's tender or whether a separate act of communicating acceptance of the tender was required. Romilly J referred to the Canadian law in this respect in 1996 as being in a state of flux. Romilly J expressed his view of the law as follows at [40]: I am convinced by the plaintiff's submission. By submitting a bid the subcontractor is aware it is bound to that bid for a certain length of time perhaps as long as the contractor may be bound by the owner. However, it is also a common expectation that only one subcontractor's bid will be included in the contractor's bid. It is only that subcontractor who continues to be bound by the Contract A that initially bound all the bidding subcontractors. By including the subcontractor's bid in its bid to the owner, the contractor "accepts" that subcontractor's bid and thus continues to bind the subcontractor to that bid for as long as the contractor may be bound by the owner: see Calgary (City) v Northern Construction Co. (1985), 19 C.L.R. 287 (Alta C.A.). As in the case at bar, there is no reason why the defendant should be given the latitude to choose the plaintiff's competitor while the plaintiff itself is bound. Thus, the "acceptance" of the defendant's bid binds the defendant to the plaintiff by creating a legal obligation as a term of Contract A. The defendant is obligated enter [sic] into a Contract B with the subcontractor whose bid it incorporated if the defendant's bid is accepted by the owner: Daves Plumbing & Heating (1962) Ltd v Voth Brothers Construction (1974) Ltd. (1986), 21 CLR 276 (B.C.S.C.). 508 The Court of Appeal of Ontario in Naylor Group Incorporated v Ellis-Don Construction Ltd (1999) 43 OR (3d) 325 expressed, through Weiler JA, the matter as follows: "The core issue in this case is the extent to which the principles in Ron Engineering, supra, apply between a prime contractor and a subcontractor. For the reasons that follow, I have concluded that a preliminary contract A does indeed arise when a subcontractor submits a bid to a prime contractor and the prime contractor incorporates that bid as part of its tender to the owner. As in Ron Engineering, preliminary contract A comes into existence at the moment that the prime contractor's tender is capable of acceptance. The primary term of preliminary contract A is that the subcontractor is bound not to withdraw its bid for a stipulated period of time after the bids have been opened. The next question is, "If the prime contractor's tender is accepted, does preliminary contract A give rise to an obligation on the part of the prime contractor to enter into construction contract B with the subcontractor even though the prime contractor has not communicated its acceptance of the subcontractor's tender?" In my opinion the prime contractor is not automatically bound to enter into construction contract B with the subcontractor. Once the prime contractor's tender is accepted, the prime contractor does, however, have certain obligations towards the subcontractor under preliminary contract A. In return for the subcontractor being bound by its bid, the successful prime contractor is obligated to enter into construction subcontract B with the subcontractor unless the prime contractor has a reasonable objection to the subcontractor. The factors which a court should consider in determining whether the prime contractor's objection to the subcontractor is reasonable include the timeliness of the prime contractor's objection and the actions taken by the prime contractor as a result of its objection. In addition, the fairness and good faith of the prime contractor in its dealings with the subcontractor are…also factors to consider in determining the reasonableness of the prime contractor's objection." 509 On appeal, in the Supreme Court (Naylor Group Inc v Ellis-Don Construction [2001] 2 SCR 943), Binnie J delivered the judgment of the Court. The appeal by the head contractor was dismissed. In the circumstances of the Bid Depository Scheme which formed the factual background to the case, Binnie J concluded: "I therefore agree with Weiler JA that the various terms and conditions governing the Toronto Bid Depository, when read together, compel the conclusion that, when the appellant chose to carry the respondent's bid in its tender to the owner, it committed itself to subcontract the electrical work to the respondent in the absence of a reasonable objection. What is "reasonable" depends on the facts of the case." 510 Binnie J made clear that this result is brought about by ordinary principles of contract law. Of overwhelming importance in this case were the terms and purpose of the Depository Bid System as the factual matrix of the relationship of the parties. The system had been set up in order (amongst other purposes) to prevent "shopping" of sub-contractors' bids. The relevant rules required, as between principal and head contractor, that if a sub-contractor was "carried" in the head contractor's tender, that sub-contractor would perform the relevant work. A formal rule based arrangement was the context within which it was plain that the intention of the parties was that if a head contractor "carried" a sub-contractor in its tender, the sub-contractor would (absent good cause) be entitled to be awarded the sub-contract. This was the sub-contractors' protection against "shopping" of their bids. Binnie J required acceptance to be communicated, but in a context where the head contractor was bound to contract with the sub-contractor, unless there was reasonable cause not to. To that extent Binnie J rejected the automatic creation of contract B, merely by the entry by the head contractor into the head contract. However, Binnie J accepted that facts of a particular case might lead to such a conclusion. 511 Thus, it is relevant to understand the background of these Canadian cases. At least in Naylor there was a formal structured system in which it was intended that the tenderer as bidder be held to its bid for the stated time so that the principal or head contractor could safely assess bids and organise its affairs on the basis of the existence of those bids; and that each bidder was protected by an obligation to use its bid if it helped a head contractor win a tender. That bidder should not then be placed in the position of having its own bid, which helped the head contractor win the contract, taken to its rivals to be bettered (that is to have its bid "shopped"), merely to increase the profitability of the contract for the head contractor. 512 A number of other courts have had no difficulty in analysing the circumstances of a tender arrangement to create binding obligations upon parties to the arrangement, most particularly an obligation (on the tenderer) to keep the tender offer open for a defined period and an obligation (on the tenderee) to consider the tenders in a particular manner: see generally: Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469; Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195 (CA); City University of Hong Kong v Blue Cross (Asia Pacific) Insurance Ltd [2001] 1 HKC 463; and Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, 183 ff. 513 Here, the dispute between the parties does not throw up for consideration the question whether the tender validity period was contractually enforceable as non-revocable. Sebel did not seek to withdraw its tender before 27 November 1998. In a commercial context of this kind and with the furtherance, rather than the defeat, of legitimate, reasonable and mutual commercial expectations in mind, there would be much to be said for the recognition of that non-revocability as supported at least by the consideration of the head contractor in the place of Clyde agreeing to evaluate and consider the tender. This non-revocability for a period identified by the head contractor in its tendering terms creates a mechanism (if enforceable) to enable the head contractor to evaluate tenders and deal with the principal in the safety of the extant and continuing state of the tenders that it has received. It need not sign with the principal until it has satisfied itself of the adequacy of the underlying tenders to it (perhaps having them varied to its satisfaction) before committing itself to the principal. It can then set about accepting the tenders to it within the relevant tender validity period. 514 The parties here contemporaneously treated the tender validity period as meaningful. Requests were made to extend the date. These requests were granted. No occasion arose to test the question of supporting consideration. However, I approach the matter on the basis of the meaningful nature of the date to the business people involved. They intended the tender of Clyde to remain open until the expiry of the period. The Process Protocol reinforced this by expressly requiring in cl 2.5(c) that all representations in the tender be kept open. 515 There was debate in submissions between the parties as to the contractual purpose of the time for the validity of the tender. Clyde submitted, based on expressions of understanding of Mr Graham and Mr Sheldrick, that it was to set a period within which Clyde could bind itself to the SRA knowing that the Sebel tender was extant. Sebel submitted that it was a period in which Clyde could accept Sebel's tender. I think the commercial aim of the provision is to be assessed objectively bearing in mind the common understanding of the parties. The view put by Clyde is overly narrow and based on a view of Mr Graham, and perhaps Mr Sheldrick, that Sebel was contractually bound once Clyde bound itself to the SRA incorporating Sebel's tender. I think their views of the contractual position and of the purpose of the tender validity date are irrelevant. Objectively the commercial purpose of the provision was as I have set out. 516 Implicit in the applicant's claim for its Contract A, based on contract B in Ron Engineering, supra, and Fred Welsh, supra, is the enforceability of the tender validity period. However, the rejection of Contract A in the circumstances here, would not necessarily lead to a conclusion that the tender validity period was not contractually enforceable. It is enough to say at this point that the provision was taken by the parties as part of their relationship. Its intended role, as a matter of objective analysis, was as I have described. 517 All the Canadian cases make plain that the existence, nature and extent of any contract between principal and tendering head contractor or head contractor and tendering sub-contractor depend upon the particular circumstances of any relationship. There is no legal paradigm to be imposed. Ordinary principles of contract formation apply. 518 Thus, the circumstances in which a party will be obliged to accept a tender must depend upon the terms upon which the parties have tendered and the particular facts of the case. Here the following factors in existence in late October and early November 1997 are important. First, Sebel's tender was non-conforming. That of itself would not prevent the expressed willingness of Clyde nevertheless to accept it for evaluation providing the consideration to support an obligation upon Sebel to keep the tender open for the stated period. However, the requirement at the time of the submission of Sebel's tender for retention of copyright and other intellectual property in Sebel and the need for agreement upon that matter among the SRA, Clyde and Sebel would tend to indicate that the creation of an obligation on Sebel to supply would need to await specific acceptance by Clyde. It was plain from discussions between SRA officers, Clyde officers and Sebel officers that the question of intellectual property would require drafting and agreement. The terms of Clyde's offer ([168] above) did not reflect Sebel's offer ([128] above), though the parties had discussed the matter ([165] to [167] above). 519 Clyde was able to control the tender process insofar as it called for bidders to support its tender to the SRA. It set out conditions of tendering, one of which was to keep the tender open for a specified time. It did not seek, until the Process Protocol, to lay down any further regime for the process leading to contractual formation. It is relevant to appreciate that it could have done so. It could have sought to say that if it used a prospective sub-contractor's tender in its tender to the SRA, that is, if it relied on a prospective sub-contractor, and it bound itself to the SRA using that sub-contractor's tender, then the subcontractor upon notification was obliged to act in a particular way. Clyde did not do so. These matters of what the parties could have done, but did not do, are not determinative, but they are not irrelevant, in circumstances where one party has the ability to set reasonable terms and that party now requests that the Court fashion a body of contractual relations to deal with conduct which could have been prevented by the laying down of more precise terms of tendering. 520 Also, before the contract is said to have been consummated, by Clyde's entry into the SRA contract or its notification of Sebel of that fact, the parties entered into an arrangement under the Process Protocol which set out their intentions as to the circumstances in which a contract would arise. I deal later ([592] to [594] below) with the question of whether there was consideration supporting the Process Protocol as an agreement. Whether it is to be seen as only a statement of mutual intention, or as an agreement, supported by consideration varying any arrangement brought about in 1997 by Clyde incorporating Sebel's tender into its tender, the Process Protocol set the boundaries in terms of expressed mutual agreement for the creation of contractual relations thereafter. From cll 1(i), (ii), (iv) and 2.2 to 2.4, the necessity of an act of acceptance by Clyde of Sebel's tender was made clear; as was the lack of any obligation upon Clyde to accept any tender, and so the lack of any obligation upon Clyde to accept Sebel. Further documentation was anticipated before any acceptance by Clyde. This latter matter was reinforced by the terms of the letter of 2 June 1998. 521 The respondent also pointed to cll 1.1 and 2.1 of the General Conditions of Contract, [92] and [93] above, as an indication that there would be no contract for the supply of seats until Clyde had placed a purchase order with the seat supplier and the order had been accepted by the seat supplier. I do not think that these provisions would of themselves gainsay the creation of a contract to perform the tender if one otherwise arose. I do not think that these provisions deny Clyde's ability to accept in terms Sebel's tender of October 1997. Clause 2.2 itself anticipated the existence of an earlier contract which becomes subsumed and superseded by the contract in the General Conditions. 522 The Process Protocol and the letter of 2 June 1998, but especially the former, as an embodiment of express bilateral contractual intention of the parties, are and is in the teeth of the creation of Contract A in the pleading. Clyde demanded (and received) the Process Protocol from Sebel in consideration of continuing to evaluate the tender. In the Process Protocol there was a clear entitlement on the part of Clyde not to have to use Sebel if it did not choose to accept its tender. As I said earlier, I think the Process Protocol envisages in its terms acceptance of the tender before the signing of a final contract, but it is plain that the entry into the contract with the SRA cannot force Clyde into contracting with Sebel: see especially cl 1(i): Clyde… is not bound to accept any tender for the Project or otherwise enter into any contractual relationship with any tenderer for the Project. 523 As between Mr Graham and Mr Jones there was little doubt that Clyde would be providing the passenger seating. (A more sceptical and cautious view was held by Mr Gabadou.) If either Mr Graham or Mr Jones had been asked in late March 1998 whether he believed that Clyde would accept Sebel's tender, he would in all likelihood have given a confident "yes". Mr Gabadou would probably have said: "I think so, but I can't rule out another tenderer winning" and Mr Wright would probably have said: "I think so, but I can't rule out another tenderer, and Clyde may try and screw us on price." 524 The expectations of different individuals as to what, as a matter of fact, would happen in the future is one thing. The Process Protocol was directed to another matter: the legal relationship of the parties in connection with the steps toward the formation of contractual arrangements. The expectations of the individuals did not in my view dilute in any way the effect of the document. Indeed the individuals treated the document as of relevance, and importance, to their legal relationship. In this respect, see the reply of Sebel, through Mr Jones ([206] above). 525 If I be wrong about the circumstances as at October and November 1997, whether affected by the Process Protocol or not, and if the law as stated by Romilly J in Fred Welsh, supra, is the appropriate paradigm into which to place the facts, I am of the view that Clyde did not incorporate, or use, or "carry", Sebel's tender in its tender in a way which would allow for the creation of Contract A. There was, without doubt, reliance on Sebel's tender. Though the precise total of Sebel's price may have been shaved by the compliance with the board instruction, I do not think that there can be any dispute about Clyde incorporating Sebel's design into the tender. There were some minor differences in drawings created by Sebel and their counterparts in the Clyde tender, but the latter were based on the former and were attributed to Sebel. Also Clyde nominated Sebel as the entity which would, subject to the terms of schedule B7, be providing the seats. In relation to the question of intellectual property, the drawings in the Clyde tender carried the false (that is, wrong) claims to Clyde's copyright in the drawings. Although Clyde in its tender put forward a partially complying intellectual property clause (see [168] above), that was not a direct reflection of Sebel's tender, but an attempt by Clyde to reconcile the SRA's and Sebel's requirements. Discussions had taken place at around the time of the submissions of Clyde's tender in early November 1997, among the SRA, Clyde and Sebel as to Sebel's requirements about retention of intellectual property. I infer that substantial commonality of view and agreement in principle was reached in those discussions, but that the drafting of a clause to deal with the issue remained to be done. An attempt to do so was made in Clyde's tender ([168] above). That was revised in the Clyde/SRA contract ([253] above), which was incorporated into the revised contract documentation sent by Clyde to Sebel on 22 December 1998. This clause was not to Mr Jones liking ([338] above). Thus drafting, at the very least, if not agreement, remained on a matter which underpinned Sebel's price and its decision to capitalise and amortise tooling and design costs. In these circumstances, I see real difficulty, even leaving aside the Process Protocol, in constructing a contractual arrangement in November 1997 by the imposition of the paradigm from Fred Welsh, supra which could lead to an automatic confirmation of contractual relations between Clyde and Sebel with this outstanding matter to be resolved. This is so even though the evidence was to the effect, which I accept, that there was little likelihood of the parties (the SRA, Clyde and Sebel) not being able to reach a mutually satisfactory conclusion about intellectual property. In the broad sense, Clyde used Sebel's tender, but not in a way, it seems to me, which conformed with a contractual intention to see the parties bound from the moment of Clyde binding itself to the SRA or from the moment Clyde told Sebel that it was bound to the SRA. 526 In the circumstances here, in my view, Sebel was not obliged (or entitled) to supply seats in accordance with its tender until Clyde accepted its tender by communicating its acceptance of an unwithdrawn offer. 527 Clyde was well able to accept Sebel's tender between 8 October and 27 November 1998. The tender remained open. To the extent that it had been varied, that varied offer awaited an act or communication which could be reasonably identified by the business people on both sides as an expression of commitment. It was not made. 528 I see no basis as at late October or November 1997 to conclude that the parties intended that as soon as Clyde told Sebel that it (Clyde) had bound itself to the SRA, without more Clyde and Sebel were bound to each other. The conditions of tender did not say so. Sebel's tender was non-conforming. Clyde's tender to the SRA differed from Sebel's tender to Clyde. To the extent that one can look to the Process Protocol in relation to either the formation or combined subsistence of this contract, its terms are directly inconsistent with such a regime between the parties. 529 Contract A fails.

Contract B 530 Contract B was pleaded as an acceptance by Clyde in the letter of 13 October 1998 of the tender of Sebel as varied in late April 1998 in the manner concerning cycle testing. In written submissions the matter was put slightly differently as follows: "On a traditional contract analysis it is the acceptance of Sebel's offer, contained in its tender, by Clyde Engineering. The acceptance is constituted by Clyde Engineering's act of entering into its contract with the SRA with Sebel nominated as the seating sub-contractor and by Clyde Engineering's notification to Sebel of those facts. On the analysis in Fred Welsh (supra) and Ron Engineering (supra), it is Contract B. It is submitted that a contract arises, whether one analyses the situation under the classical theory of offer and acceptance, including as explained in Fred Welsh or under the principles extracted above from the judgment of Heydon JA in Brambles (supra)". 531 This way of putting the matter advances the argument little beyond the Fred Welsh, supra, and Ron Engineering, supra, analysis above. It accepts that "acceptance" is required to create the contract B, but that acceptance is only the notification by the head-contractor that it has been awarded the contract by the principal. To the extent that there is, embedded within this the proposition that an act of choice or free will by the head contractor and a communication of that choice is not required, for the reasons that I rejected Clyde's Contract A, I would reject this Contract B as the corollary of the procedural obligation to keep open the tender offer: see Estey J in , Ron Engineering, supra at 122-23. 532 It was put by Sebel that one of the planks of Clyde's argument for Contract B - that there was an open and available offer capable of acceptance in the form of Sebel's tender - was false. It was submitted that the terms of cll 1.1, 2.1 and 2.2 of the General Conditions of Contract ([92] and [93] above) made it impossible for Clyde to accept Sebel's tender as an offer. I have already indicated that I disagree with this submission. Those clauses, as cl 2.2 itself contemplates, did not deny the ability of the parties to contract in terms of the offered supply at the offered price. Upon a purchase order being accepted the contact thereby created would subsume and supersede any previous arrangement. 533 As pleaded, the contract arises from the acceptance of an open offer. Relevant by this stage in judging the expressions and conduct of the parties is the Process Protocol. Under the Process Protocol, Clyde was not obliged to contract with Sebel until it accepted Sebel's tender. The communication of the fact that Clyde had contracted with the SRA was not in terms an acceptance of Sebel's tender. It was not in substance such an acceptance. The procedure agreed on did not contemplate, and indeed negatived, some act or communication by Clyde short of the communication of an acceptance of a tender, binding the parties to a legally binding arrangement. Was Sebel's tender accepted by Clyde? 534 The assessment of whether it was or was not an acceptance is an objective one. It is not to the point that Mr Graham, Mr Sheldrick and Mr Jones thought (if they all did) that a contract had been formed on 13 October 1998. It may be that Mr Graham and Mr Sheldrick thought so, or thought that at least Sebel was bound to its tender. That may have been because of their understanding of the law and cases such as Fred Welsh, supra. Their legal knowledge was not explored. If they had thought that all Clyde needed to do to accept Sebel's tender was tell Sebel of Clyde having become bound to the SRA, that would have been a view which could be understood by reference to the jurisprudence to which I have referred, but, in my view, it would be an incorrect view that such a communication amounted to an acceptance of Sebel's tender, particularly in the light of the communications of the parties up to that point. 535 Plainly the document must be assessed by reference to, and in the context of, the circumstances of these two parties: Burnham v Carroll Musgrove Theatres Ltd & Victoria Arcade Ltd (1928) 41 CLR 540, 553; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 768, 780. 536 The letter came a few days after Mr Graham had given Mr Jones the news on 8 October 1998. The fact that Mr Graham said "Congratulations Neville" does not of itself or in conjunction with the letter of 13 October transform the communications on 8 and 13 October 1998 separately or together into communications having the legal effect that Clyde hereby accepts the extant tender on 8 October 1997. What was said on 8 October 1998 may have led Mr Jones to think that acceptance would be made in due course. It was not an occasion in which one would expect legal relations to have been formed. It was not pleaded as an acceptance of itself. However, it does take its place in the factual matrix in which to assess the objective meaning of the letter of 13 October 1998. 537 I will not repeat here the findings that I have made about the parties' activity up to this point. Mr Jones' view was that Sebel was the only tenderer. Mr Gabadou's view was that Sebel was preferred. Mr Wright was of Mr Gabadou's views. All knew that Clyde had used Sebel's design in its winning tender. As matters stood, the likelihood (certainty in Mr Jones' mind) was that Sebel would be awarded the seating contact. The letter of 13 October 1998, reinforced all that - a contract (beyond the tender, to include maintenance) would be negotiated. What the letter of 13 October 1998 foreshadowed was what was referred to in cl 2.2(d) of the Process Protocol. Clause 2.4 of the Process Protocol anticipated that acceptance of the tender would occur after the steps in cl 2.2(d). However, this would not prevent the letter of 13 October 1998 being construed as a letter of acceptance if that is what is said in it. However, as a matter of English, it simply does not accept anything. 538 Further, the letter of 13 October 1998 accords with the procedure laid out in the letter of 2 June 1998 as referring to conduct prior to the parties being contractually bound. 539 The letter plainly could not conclude any contract concerning maintenance. For it to be a contractual acceptance of something else, the letter must be read distributively or differentially as to design and supply (as to which it is an acceptance of the tender and indicates a need to negotiate the terms of a formal final contract) and maintenance (as to which it indicates the need to negotiate an agreement). 540 Reading the letter of 13 October 1998 in its factual context, including the correspondence and agreement of the parties as to procedure, it cannot, in my view, be read as a letter of acceptance of Sebel's tender. 541 I do not think that the terms of the facsimile of Clyde to Sebel of 19 August 1998 requesting an extension of the validity of Sebel's tender to 27 November 1998 assist in concluding anything to the contrary about the letter of 13 October 1998. 542 To the extent that there may have been any ambiguity in the matter, it is permissible I think to look at conduct subsequent to the letter to see whether the parties dealt with each other on a basis that Sebel's tender had in fact been accepted. If they did so, that might assist in concluding that, though ill-expressed for the purpose, the letter could be viewed against the background of the parties' mutual affairs as an acceptance of the tender. 543 After the receipt of the letter Mr Jones was requested by Mr Gabadou to ask for a "letter of intent". That request carried with it the communication to Clyde that Sebel was of the view, or at least some in Sebel were of the view, that Sebel had from Clyde something less than such a commitment. One answer to it was that there existed already something more than a "letter of intent" - Sebel's tender had just been accepted. That, on any recollected version of the facts, was not said. Mr Jones was told that there would be no letter of intent, but that a contract would be sent to Sebel. In the context of the Process Protocol and its covering letter and the letter of 2 June 1998, that expressed view of Mr Sheldrick was not that Clyde had accepted Sebel's tender, nor was it that Clyde and Sebel were contractually bound to each other. 544 Taking this later conduct as relevant and assessing the objective nature of the 13 October 1998 correspondence, if anything it confirms that the letter was not as between these parties an acceptance, rather the reverse. 545 It may nevertheless be that if the parties had been of a common view that the letter of 13 October 1998 was an acceptance, then they may have been thereafter estopped from denying that fact. Here, however, Messrs Gabadou and Wright were not of that view and the request of Mr Jones (at Mr Gabadou's direction) and Mr Sheldrick's response make any conclusions of such an estoppel impossible. 546 I do not think that the applicant has any greater success by calling in aid the reasons of Heydon JA in Brambles, supra or of myself in Branir, supra. Everything I have said is in accordance with the views there expressed. The argument of the applicant seeks to promote the evidence of Messrs Graham, Sheldrick and Jones that they thought Sebel was bound at this point as determinative of the question whether Sebel was bound. It is not. In any event, I do not think that Mr Jones had a view about Sebel being bound. He was fixed on Sebel getting the job, when Clyde got the job. No question arose for him about Sebel being bound. 547 Mr Gabadou and Mr Wright did not think that the parties had entered any contract. They did not think that Clyde had committed itself to Sebel. 548 The conduct of the parties, including their correspondence and agreement regarding procedures to contract, make it impossible, in my view, to conclude that there was a mutually manifested assent bespeaking an intention to be legally bound by October 1998 to supply passenger seating for the 4GT train in accordance with the tender of Sebel of 1997, as amended thereafter or otherwise. In my view Contract B fails.

Contract C 549 Contract C was said to have been entered in late February 1999. It was said that there was agreement for Sebel to supply passenger seating on the basis of the material sent to Sebel by Clyde on 22 December 1998. 550 The letter of 18 January 1999 ([344] above) did not deal with all matters. Remaining outstanding were intellectual property; maintenance - schedule B2.2.2 was uncompleted; and certain currency exchange requirements that had been made by Sebel in schedules B6.1 and B6.3. Also, Sebel had not reviewed and completed schedule B2.2.1. There may have been some mathematical errors in some schedules. Sebel had not submitted the required public liability insurance certificates. 551 Some of these matters were the subject of discussion between Mr Sheldrick and Mr Jones on 26 February 1999. That until 26 February 1999 there was plainly no contractual consensus can be seen in the correspondence of Clyde in February exhibiting clear agitation. 552 Thus, for Contract C to succeed it must be that on 26 February the contract was formed. (In this respect the pleading and particulars of this contract should be noted. No date later than 26 February for contract formation was identified.) 553 I do not think that any contract was formed on 26 February 1999. The result of the meeting was that matters would be "completed", "reviewed", "corrected", "checked" and "supplied". Progress was made in the finalisation of Sebel's response, but I do not think that the occasion can be identified for the creation of legal relations. 554 The parties had not agreed on contract terms. In particular, the parties had not agreed on the question of intellectual property. Clyde submitted that this was a "minor" matter and one which was unlikely to cause a problem. The latter, as a matter of expectancy may be accepted. The former, however, is to ignore the importance of the matter. To a degree it was concerned with maintenance, insofar as the proposed terms of the licence arrangement were aimed at giving Clyde and the SRA assurance of use of the design over thirty-five years. But the terms were plainly ones which concerned Sebel in important ways. The ownership of the design underpinned its price. The questions of the ownership of variations to the design might well affect Sebel beyond any maintenance obligations. 555 At this point, on 26 February 1999, the parties were not dealing with their proposed relationship, element by element. They were intending to bind themselves to a contract for the design, supply and maintenance of the seating. I do not think that the parties exhibited an intention on or by 26 February 1999 to bind themselves to a contract for the design and supply of the seating, but not its maintenance. 556 To the extent that later conduct can be utilised in the assessment of the question whether the parties intended that contractual relations be consummated on 26 February 1999 Sebel made clear on 15 March 1999 that as far as it was concerned contract negotiations were still on foot. 557 Finally, to the extent that the parties on 26 February 1999 evinced an intention about contractual formation, they anticipated in the near future the signing of documentation. Its preparation was referred to (see [395] and [396] above). 558 In particular in the light of the Process Protocol and the correspondence of 24 March and 2 June 1998, I cannot accept that the parties were intending that such accord as had been reached by 26 February 1999, was intended to be legally binding, in the absence of agreement on maintenance and intellectual property and in the absence of some clear identification marking the binding of the parties, in circumstances where a signed contract was expected to follow promptly after consensus on all matters. 559 Contract C fails.

Contract D 560 Contract D, as pleaded, is a contract said to be formed in early November 1997. It was expressed in written submissions as follows: In consideration of Clyde selecting Sebel as its seating sub-contractor for the 4GT Project, accepting the basis of calculating the price for the work to be carried out by Sebel contained within Sebel's response, promising to nominate Sebel to the SRA as Clyde Engineering's seating subcontractor in Clyde Engineering's tender to the SRA for the 4GT Project and further promising not to select or nominate to the SRA any other seating subcontractor for the 4GT Project, Sebel agreed that for so long as Sebel remained Clyde Engineering's selected subcontractor for the passenger seating for the 4GT Project: (a) Sebel would not revoke its offer to supply passenger seating for the 4GT Project contained within Sebel's response; (b) In particular, that Sebel would not increase in any substantial way the price per seat space reflected in Sebel's response; (c) Sebel would negotiate in good faith with Clyde Engineering the formal terms of the subcontract agreement contemplated by Sebel's response for Sebel to supply passenger seating for the 4GT Project so that a formal subcontract agreement substantially in accordance with the terms and conditions contained within Sebel's response would be entered into between Clyde Engineering and Sebel; and (d) Sebel would do all things as were necessary on its part to enable Clyde Engineering to have the benefit of the agreement. 561 There are a number of difficulties with the contract as propounded. First, there was no promise by Clyde to Sebel in early November 1997 to nominate Sebel as the seating contractor. Secondly, there was no promise by Clyde not to use any other seating contractor. Mr Graham told Mr Jones that Clyde would include and then had included Sebel in its tender. There was no promise to do so. Thirdly, the price at which Clyde included the seating in its tender was not a matter of discussion or agreement between Clyde and Sebel. Mr Jones made it clear that he was unaware what Clyde did with Sebel's price in its (Clyde's) tender. 562 Leaving aside for the moment these difficulties, it can be stated that the structure of the contract is one which aims to give some protection to Clyde, as the head contractor, from any vulnerability it might face in the period after it had committed itself to the SRA. 563 The arrangement does not flow expressly out of the conditions of tendering. It is to be inferred or implied from the circumstances. The parties intended that there be some protection to Clyde as to its position with the SRA. Clyde nominated a required tender validity period in the conditions of tendering. If sufficiently assessed or if extended (as it was), this date provided the intended protection to Clyde to deal with the sub-contractor once it had dealt with the SRA. Further, the ability of Clyde to express such an arrangement within the tender conditions under its control is of relevance. 564 Even leaving aside the absence of elements of the pleaded consideration, I do not see any contractual necessity to infer or imply such a construct. Clyde's protection in connection with binding itself to the SRA was intended to be by its control of the tender validity date. The contract as pleaded was not necessary to afford such protection. The parties intended Sebel's tender to be non-revocable, up to a date within the control of Clyde. 565 Reliance was placed on Coal Cliff Collieries Pty Ltd & Another v Sijehama Pty Ltd (1991) 24 NSWLR 1, Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 at [141] ff, Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17 at [61] ff per Barrett J (NSWSC) and Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349, 369 for the proposition that Sebel had to negotiate a formal contract in good faith. Regard may also be had to South Sydney District Rugby League Football Club v News Ltd (2001) 177 ALR 611 at [393], [394], [426] and [427] and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 at [915]-[920]; and see generally Sir Anthony Mason "Contract, Good Faith and Equitable Standards in Fair Dealing" (2000) 116 LQR 66. 566 It may be that within the period of the life of the tender, that is, up to the expiry of the tender validity date there was an obligation on the part of Sebel (and perhaps also Clyde) to negotiate in good faith towards the finalisation of a completed contract. However, that does not advance the position beyond that reached by the recognition that the protection to Clyde after its commitment to the SRA was provided by the tender validity date and Clyde's control of that prior to commitment to the SRA. Implications of concepts related to good faith such as dealt with in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607; Mackay v Dick (1881) 6 App Cas 251, 263 and Butt v McDonald (1896) 7 QLJ 68, 70-71 can be readily made. However, unaccepted as it was by 27 November 1998, Sebel's tender became liable to revocation. As a matter of contract any obligation on Sebel to exhibit good faith or act in a particular way likewise became subject to revocation, unless affected by s 52 of the TPA or estoppel, matters to which I will turn shortly. 567 What might be said to be the unworthy conduct of one of the parties to a contract that otherwise does not amount to a breach of contract, does not give the Court licence to refashion, by implication, the terms or structure of the contract in order that a remedy be provided for the unworthy conduct. Where there is no formal contract, there must be an inferring of contractual intention, that is arriving at the actual intention of the parties, before the consideration of imputed or implied intention: Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 422. Further, in such cases where there is no formal contract, an implication of a term will be made only if it can be seen to be necessary for the reasonable or effective operation of a contract of that nature in the circumstances, or by mercantile usage or professional practice or past course of dealing: Hawkins v Clayton (1988) 164 CLR 539, 573, approved in Byrne, supra at 422 (per Brennan CJ, Dawson and Toohey JJ) and 442 (per McHugh and Gummow JJ). As to the implication and inference of terms see also South Sydney, supra at [390] to [394]. 568 This task of assessing what is necessary for the reasonable or effective operation of the contract should be undertaken by reference to the parties' circumstances, understanding and intentions at the time of contractual formation. It is not a legitimate judicial technique to have regard to what might be seen as a developing view as to the imposition of the obligation of good faith on parties to contracts (see generally Baron "'Good Faith' and construction contracts - from small acorns large oaks grow" (2002) 22 Aust Bar Rev 54), to identify dishonourable conduct or conduct which might be said to be "in bad faith" (disembodied from the contractual framework set up by the parties) and then to impose or sculpt an otherwise logical and reasonable contractual structure which gives a remedy for the impugned and unworthy conduct. The applicant did not submit that this was a course that I should follow. However, the implication of Contract D, in circumstances where Clyde evidently, from the conditions of tendering, sought to deal with its own protection in connection with committing itself to the SRA by the tender validity date and evidently by the Process Protocol otherwise sought to deal with the development or formation of contractual relations, would, in my view, only be justified by such an ex post facto remediation of perceived unworthy conduct of Sebel. 569 Contract D fails.

The estoppel claim 570 The claims based on estoppel are put on the foundation that the claims in contract fail. As I find the latter do fail, it is necessary to turn to the question of estoppel. 571 The estoppel claim is founded on the following pleaded promise (see [110] of the Fourth Amended Statement of Claim - "4th FASC"): …that in the event that Clyde was accepted by the SRA as the successful tenderer for the Project and thereafter entered into an agreement with the SRA for the supply of trains for the Project, Sebel would be bound to and would supply passenger seating for the Project in accordance with Sebel's 1997 tender response. 572 In reliance on this promise it was said that Clyde made the following assumption: …that if Clyde was accepted by the SRA as the successful tenderer and thereafter entered into an agreement with the SRA for the supply of trains for the Project, Sebel would be bound to and would supply passenger seating for the Project in accordance with Sebel's 1997 tender response. 573 Thus, it was said that a promise made by Sebel created within relevant Clyde officers a belief or assumption as to the fact of Sebel being bound in certain circumstances. 574 It was said that at all times Sebel knew of Clyde's assumption and that Sebel intended Clyde to act on the basis of the assumption (4th FASC [113]). 575 On the basis of the assumption Clyde was said to have acted and omitted to act in the following ways (4th FASC [112]): (a) incorporated in its tender to the SRA information from Sebel's tender response, including pricing and drawings; (b) continued negotiations and discussions with the SRA as to the terms on which Clyde was prepared to supply the trains, and included in its formulations and revisions of those terms the terms provided by Sebel including the terms as to technical matters, drawings and costs provided by Sebel; (c) continued discussions with Sebel in relation to seating for the Project; (d) did not begin or continue negotiations or discussions with any other manufacturer for the provision of seats for the Project; (e) executed the Deed of Agreement with the SRA on 8 October 1998; and (f) sent Sebel the formal contract documentation on or about 22 December 1998. 576 So acting and omitting to act was said to have caused detriment so as to lead to the conclusion that it would be unconscionable or unconscientious for Sebel to be allowed to depart from the promise (4th FASC [114] and [115]). The pleaded detriment was: (a) By entering into the Deed of Agreement with the SRA on 8 October 1998, Clyde is bound to supply the seats in accordance with the terms of that agreement. (b) If Clyde had known prior to 8 October 1998 that if it was accepted by the SRA as the successful tenderer and thereafter entered into an agreement with the SRA for the supply of trains for the Project, Sebel was not bound to and would not supply passenger seating for the Project in accordance with Sebel's Response, Clyde would: (i) have negotiated terms on which Sebel would be bound to and would supply passenger seating for the Project; (ii) have negotiated with another supplier of seating the terms on which that supplier would be bound to and would supply passenger seating for the Project; and (iii) have submitted a quotation to the SRA and thereafter entered into an agreement with the SRA which allowed for (i) or (ii) above and any revised terms of supply. (c) Clyde would not have entered into the Deed of Agreement on the terms that it did. 577 Each of these pleaded elements needs to be examined with some care. First, I will deal with the "promise". The promise was said to arise from express words and conduct. The express words were said to be the tender response of Sebel, the letter of 28 October 1997 extending the tender to 30 September 1998, the Process Protocol, the facsimile of 28 April 1998 extending the testing cycle to 75,000 and facsimiles of 20 July 1998 and 20 August 1998 extending the tender validity date to 30 October 1998 and 27 November 1998, respectively. None of these documents contains the promise. Undoubtedly it was stated that the Sebel offer had a particular form and that it would stay open until a particular date. Nowhere was there a promise that Sebel would be bound if Clyde bound itself to the SRA. The implication from conduct (when assessed with these express words) was said to arise from Sebel's response being part of a tender process, Sebel's knowledge that Clyde would rely on Sebel's tender in entering an agreement with the SRA and conduct set out in the particulars to [110] of the 4th FASC as follows: Sebel's conduct in dealing with Clyde Engineering in relation to the Project prior to 8 October 1998, as set out in: · paragraphs 32 to 88 of the affidavit of Reginald Keith Graham sworn 19 October 2000; · paragraphs 17 to 65 of the affidavit of Graheme John Sheldrick sworn 13 October 2000; and · paragraphs 6 to 54, 68 and 81 of the affidavit of Neville Bryson Jones sworn 6 October 2000." This particularised conduct identified the evidence of the relationship of the parties up to and after 8 October 1998. I do not propose to repeat any part of my chronological findings about these matters. 578 I do not think from all the facts that Sebel promised anything of the kind to Clyde. Clyde sought to keep the tender validity period sufficiently extended. That was agreed to. Sebel kept its offer open up to and past the periods so specified. Mr Graham, Mr Sheldrick and Mr Jones believed that if Clyde won the job Sebel would be providing the seating. Mr Wright and Mr Gabadou thought that to be the case in all likelihood, subject to the suspicions each entertained. These views as to what would in all likelihood occur do not transform an open offer into a binding promissory representation. 579 Clyde did not enter the contract with the SRA on the faith of any promise of the kind pleaded. It entered the contract with the SRA knowing that the tender validity period was 27 November 1998 and knowing that it had ample time after it bound itself to the SRA to bind Sebel in such manner as it thought fit, and intending so to do. Clyde's officers then, after Clyde bound itself to the SRA, acted to communicate with Sebel. Their view at the time, according to their evidence, was that the steps they took on and after 8 October 1998, in particular in sending the letter of 13 October 1998, were sufficient to bind Sebel in contract. Having so acted, and having then successfully bound Sebel (they thought) they chose not to extend the tender validity date any further. In failing to seek to extend that date they relied on their own view of the adequacy of what had been done by them on behalf of Clyde. 580 None of the matters of detriment identified by Clyde in [112] of the 4th FASC was detriment at all. Prior to execution of the contractual documentation with the SRA it was open to Clyde to ensure the continuation of Sebel's offer: this was done, the tender validity date was extended. It was open to Clyde to ask Sebel all necessary questions about its tender so as to refine and crystallise the nature of its offer: there was no evidence that this was not done. After Clyde entered the contract with the SRA it was able to act to bind Sebel: it did so, or so it thought. 581 No detriment as alleged arose. Clyde sought in the Process Protocol to keep control of the process leading to contractual formation. It did keep that control. Mr Sheldrick and Mr Graham, according to their own evidence, thought they had exercised that control. The matters particularised under [114] simply do not reflect the reality of the evidence of Mr Sheldrick and Mr Graham. 582 Embedded within the submissions on estoppel was the submission that clause 2.5 (c) of the Process Protocol contained a promise that Sebel would keep open any representation made to Clyde in its tender. However, that cannot be divorced from the terms of the tender. The tender had, in effect, an expiry date. The tender validity date was dealt with in October 1997, July 1998 and August 1998 as a serious matter. Sebel did not represent to Clyde that it would keep its tender open for any period beyond the nominated day. One cannot divorce clause 2.5 (c) from the tender itself and its expiry date. 583 I have set out in the factual history of the matter the close working relationship of these two companies. It may well be that the change of direction by Sebel and leaving Clyde in the position it did in early 1999 was unethical. (Such a conclusion requires the identification of the body of ethics or moral precepts used as the premise in order to reach the conclusion.) It was certainly a surprise. However, at all times up to 27 November 1998 Clyde had it within its power the capacity to bind Sebel in contract to a result now contended for. Mr Sheldrick and Mr Graham knew that to be the case; they thought they had taken sufficient steps to do so. If, as I find, they were wrong about that, and thereafter Sebel's offer became revocable, Clyde found itself in the position it did because of an unethical (if it be such) exploitation by Sebel of its legal entitlement to walk away. 584 On the evidence of Mr Sheldrick and Mr Graham it simply cannot be concluded that because of anything said or done by Sebel Clyde acted in any particular way different to the course it would otherwise have adopted had Sebel not done or said what it did. Clyde knew of the close relationship between itself and Sebel; nevertheless it prudently extended the tender validity date; then, having won the contract, took such steps as its officers thought were sufficient to bind Sebel. 585 If I am wrong about contract A or B, they were right. If I am right about these contracts, they were wrong, with the consequence that Clyde let the tender validity period lapse. In the latter circumstance, Clyde should not be allowed to resort to what on the evidence is an artificial estoppel construct, divorced from the reality of the reasons for the human conduct in question. 586 In submissions, it was put that Sebel was under a duty to warn Clyde that upon expiry of 27 November 1998 the offer was revocable. This way of putting the matter was not pleaded. No officer of Clyde relied on anyone at Sebel to conclude what action should be taken by Clyde to secure Sebel's position. 587 It is true that after 27 November 1998, until March 1999 Sebel appeared to be wishing to proceed. However, by then the offer was revocable and no irremediable detriment thereafter could arise. 588 Of course, Clyde expected that Sebel would be providing the seating. The withdrawal of Sebel came as a surprise, and an unpleasant one. However, as I have said, Clyde officers, Messrs Graham and Sheldrick, took the steps they thought, in the circumstances, appropriate to bind Sebel. This case is about the correctness in law of that view. Neither Mr Graham nor Mr Sheldrick said that in seeing Clyde commit itself to the SRA he relied on any promise of Sebel thereafter to be bound. They were aware of the terms of the Process Protocol. They were aware that Sebel could not revoke its offer and any representations before 27 November 1998. They knew that Clyde needed to act to bind Sebel. They thought Clyde had done so on 13 October 1998. 589 The estoppel case fails. The Process Protocol agreement 590 A further contractual case was propounded by Clyde. 591 The parties were agreed that the Process Protocol was not a deed. However, there was a dispute as to whether it could operate as an agreement. 592 Sebel submitted that it lacked supporting consideration. Clyde submitted that the consideration supporting the document was Clyde offering to continue, and continuing, to proceed with Sebel's bid in the second stage of the tender evaluation for the Project. The letter of 24 March 1998 said that it was a condition of further dealing with Sebel that the document be executed. 593 It was not submitted that Clyde was obliged, by a contract or contractual term arising out of the original tender, to continue to deal with Sebel. On that basis Clyde was offering to Sebel the opportunity to continue with the Project . True it was that at this point Clyde had not dealt with any other tenderer for the seating. Nevertheless, it was holding out the continuation of an opportunity. Sebel said that this was not valuable consideration, but illusory, because of the terms of clauses 1 (ii) and (iv). It was said that Clyde reserved for itself a complete discretion as to whether to continue with the procedure in relation to Sebel. Reference was made to Placer Development Ltd v Commonwealth (1969) 121 CLR 353 at 356 (Kitto J), 360-61 (Taylor and Owen JJ); Meehan v Jones (1982) 149 CLR 571 at 581 (Gibbs CJ); Biotechnology Australia Pty Ltd v Pace (1998) 15 NSWLR 130 at 134-6 (Kirby P); 150-51 (McHugh JA); SVI Systems Pty Limited v Best & Less Pty Limited [2001] FCA 279 at [58] (Einfeld J); and H K Lűcke "Illusory, Vague and Uncertain Contractual Terms" Adelaide Law Review Vol 6(1) September 1977 at 1. 594 Whilst the covering letter of 24 March 1998 and recital E purport to grant to Sebel participation in a process, the fact is that by clause 1 (ii) Clyde was not obliged to give any further consideration to Sebel's tender. In that respect it seems to me that however one might look to the "practical effect" of the deed, it, in terms, did not oblige Clyde to do anything. I accept the submission of Sebel. Whatever may be the limits of the notion of "practical benefit" as consideration: see Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 at 738 ff, and Williams v Roffey Brothers and Nicholls Contractors Ltd [1991] 1 QB 1, as to which see M Chen-Wishart "Consideration, Practical Benefit and the Emperor's New Clothes" in Beatson et al Good Faith and Fault in Contract Law ch 5, I doubt the relevance of that concept here. Musumeci and Roffey deal in particular with the practical benefit of offering to do that which the party is or may be under a duty to do in any event, looked at in the light of all the surrounding circumstances. Performance of such a duty, it is said, may yet be consideration, if there is, in practice, a benefit or the obviation of a disbenefit. There may well be circumstances in which it is necessary or appropriate to go beyond the precise legalities of the circumstances and find such a practical benefit or obviation of a disbenefit in assessing the respective commercial realities of an arrangement. For instance, there may be a dispute about the extent or timing of performance required. There was no such dispute here. Here the document was clear. One side agreed to various terms in exchange for a continued consideration of its offer, which consideration the other side was expressly under no obligation to give. Clyde was not obliged to do anything. There was no consideration provided for flowing from Clyde. There was no surrounding dispute from which to infer some practical consideration. 595 However, I do not think it matters. Even if the Process Protocol were supported by consideration, there was no breach of it. The clause said to have been breached was cl 2.5 (c). That clause required Sebel to comply with, and not resile from, any representation in its tender, as kept up to date by communications after 5 November 1997. 596 If, as I think must be the case, the representations in Sebel's tender are bounded by the express time limit for validity of the tender then there was no resiling from, or failure to comply with, the representations referred to in the Process Protocol. The representation in the tender and its binding irrevocable nature were internally limited by the express words of the tender: there was a temporal limit to the validity of the tender. I do not think, in circumstances where the parties have agreed on a term defining the operational life of the tender, that cl 2.5 (c) should be construed as extending, inconsistently with the tender to which it refers, the obligations of individual representations in the tender to indefinite time periods. 597 The later conduct of the parties in extending the time for the tender validity period would tend to indicate, if admissible so to do, that the parties did not view cl 2.5 (c) as doing away with the time construction of the tender validity date. However, on the balance of authority that is probably not a consideration which I can take into account in construing clause 2.5(c): James Miller Ltd & Partners v Whitworth Street Estates (Manchester) Ltd [1970] AC 583; L Schuler A G v Wickman Machine Tool Sales Ltd [1974] AC 235, 261; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310, 315, 326-28, 31; Ryan v Textile Clothing and Foolwear Union of Australia [1996] 2 VR 235, 261; FAI Traders Insurance Company Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 90-025; Jennings Construction Ltd v F R Coyle Pty Ltd 17 October 1984 NSWCA, Glass, Samuels and Mahoney JJA; Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76 at [12]; C H Magill v National Australia Bank Limited [2001] NSWCA 221 at [50] to [53]; Winstonu Pty Ltd v Pitson [2001] FCA 541 (Full Court); and see the discussion in the article by Charles "Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct" (1991) 4 JCL 16; cf Valentines Properties Pty Ltd v Hunico Corp Ltd [2000] 3 NZLR 16, 27; and compare the United States position referred to by Finkelstein J in Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 174 at [34] to [36]. 598 If this is the correct interpretation of cl 2.5 (c) there can have been no failure to adhere to, nor was there a resiling from, any representation in the tender. 599 I should add that in its submissions Clyde said that to take such a view of cl 2.5 (c) was focusing "unduly narrowly on the precise words of the document", and as such ignored "the surrounding reality in what the parties understood and intended". I do not think that the parties' subjective intention as to the operation of cl 2.5 (c) assists. However, if I am wrong about that, the subjective intention appears to be reflected in the desire of at least Clyde to extend the tender validity period, notwithstanding the existence of cl 2.5 (c) until such time as Mr Sheldrick and Mr Graham thought it unnecessary to do so. This indicated, on the part of Clyde, an understanding or belief that the terms of the Process Protocol did not obviate the need to extend the tender validity date, until Sebel was bound (in the view of Clyde). 600 My views above make it unnecessary to deal with the further arguments about breach of cl 2.5 (c). Nevertheless, for the sake of completeness, and lest I be wrong about the importance of the tender validity date to the operation of cl 2.5 (c), I should deal with these arguments. It was said by Clyde that it was enough for there to be a failure to adhere to or a resiling from any relevant representation. Sebel said that there was a further element: that such had to occur in the absence of good faith. 601 The construction of cl 2.5 in this respect is not easy. The requirement of good faith clearly stated in the preamble was intended, as I read it, to add to the burden of Sebel in the carrying out of the obligations in the clause. This would not be enough to participate only by way of formally attending meetings to comply with cl 2.5(a). The attendance and participation must be in good faith. I do not see any contractual purpose in adding an additional requirement for lack of good faith when there is plainly an absence of compliance with the substance of the clause, which would be to lessen the burden of the clause. Thus, if Sebel refused to attend and participate in any meetings, refused to provide any information required by Clyde and resiled from the tender representations or sought to withdraw the whole tender, I do not think it was intended that such conduct, being the opposite of that required by the clause, had also to be undertaken in bad faith for there to be a breach. The requirement of good faith was an additional burden on Sebel such that nominal compliance would be a breach, if not undertaken in good faith. 602 Thus, if I be wrong about the importance of the tender validity date my view is that Sebel did not comply with cl 2.5 (c); and, so, if I be wrong about the operation of consideration, Clyde is entitled to sue Sebel in contract for such breach. 603 On this basis, it is unnecessary for me to decide whether Sebel's conduct in March 1999 lacked good faith for the purposes of cl 2.5 (c). However, should I be wrong about a number of matters: the absence of consideration and the proper construction of cl 2.5 (c) it would be necessary then to understand whether Sebel acted otherwise than in good faith. 604 This is not the occasion for a general discussion of the meaning and content of the phrase "good faith" if it is imposed as a contractual obligation or if it is, as here, expressly incorporated into a contract. To the extent that its meaning goes beyond that identified by Judge Breitel in giving evidence before McLelland J in United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 799-801 which is akin to the co-operative principle referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607, (see [566] above) there may be seen to be difficulties in assessment of its reach. To the extent that honesty is required (for example in the formation of an opinion: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234) that involves a normative standard capable of assessment and can, perhaps, be seen as implicit in all commercial conduct. However, if it is wider and imports reasonableness, fairness and decency one may need to understand by what standards of commercial morality one is to judge these concepts. Is it "community" standards, the standard of the milieu in which the parties move, or some other body of moral precepts, and if so, what? 605 Here, the context is that Sebel could not resile or fail to adhere to a representation. If it is necessary for this to be proved to be done in bad faith (as the antonym of good faith: cf O'Keefe v Williams (1910) 11 CLR 171, 211) what is needed? If the context is a knowing withholding of the benefit, then Sebel exhibited bad faith. If the context is a knowing withholding of the benefit in the knowledge that it was a breach of contract, Sebel did not exhibit bad faith. None of Mr Doman, Mr Wright, Mr Gabadou, Mr McGrath or, I think, Mr Jones knew there to be a contract. If the context is a notion of reasonableness, fairness and decency, minds might perhaps differ about Sebel's conduct. Mr Doman thought he was legally entitled to do what he did. Mr Jones thought it immoral and unethical. I think Mr Wright thought so too - that was the reason he steadfastly adhered to his evidence that he did not know that Sebel's design was in the train. Mr McGrath thought Sebel to be under a moral obligation to supply the seats. Mr Doman was cavalier with Clyde's position. He knew that rejection by Clyde was the consequence of his position on price and that this would cause Clyde significant problems. He would have had to have been a commercial ingénue to believe otherwise. However, he thought, in the interests of Sebel, that the position he was taking was appropriate. His briefing of Mr McGrath was less than accurate. However, I am not prepared to find that he was dishonest. The course of action may or may not have reflected badly on his competence. That seems to me to be irrelevant to good faith and I make no findings thereon. 606 If, contrary to my view, it is necessary for Clyde to prove that the resiling from, or failure to adhere to, representations about price must be shown to be in bad faith, I would conclude that the conduct was not dishonest, was not knowingly done in breach of contract, but was, judged by the standards by which Mr Jones (and I think Messrs Wright and McGrath) viewed the matter which I take to be the standard of an honest person of business in this field of endeavour, dishonourable, and lacking in commercial decency if done without a pressing countervailing reason. Here there was no such pressing countervailing reason. If that is bad faith, such was displayed. The Protocol Deed representation 607 Clause 2.5 (c) of the Process Protocol was also pleaded by Clyde as the basis for a claim under s 52 of the TPA. It was said that Sebel did not have reasonable grounds for making the representation in cl 2.5 (c). Section 51A of the TPA was relied on. 608 In the light of all the evidence there is no basis for this claim. Sebel, through Mr Jones, expected to continue the close and fruitful co-operation with Clyde. There was every basis to conclude that Mr Jones and others at Sebel intended to act in the way contemplated by cl 2.5 (c). 609 Sebel did not contravene s 52 of the TPA in this regard. The balance of Clyde's case under s 52 of the TPA 610 The case of Clyde under s 52 of the TPA took a number of forms. The first basis of the claim is found in [33] to [44] of the 4th FASC. In these paragraphs it is alleged that in relation to stages 1, 2 and 3 of the Project Sebel represented that it would supply seating on a fixed price per seat space basis, together with fixed costs, as set out in Schedule 1B of Sebel's tender response. 611 The alleged reliance on this representation is the same as that set out under [112] of the 4th FASC and referred to at [575] above. 612 It was alleged that Sebel did not have reasonable grounds for making the relevant price representations. 613 In my view this claim is unsustainable. In October 1997 rational and careful consideration was given to the fixing of the price. It cannot be gainsaid, it seems to me, that there was every proper basis for the setting of the proposed price and its communication to Clyde on the basis of the treatment of tooling and design or research and development costs, as then honestly and reasonably intended. 614 Sebel has proved that there were reasonable grounds for making these price representations. Policy within Sebel changed under the hand of new executive authority. There was no relevant delay in communicating that change, after it had been decided upon in the higher echelons of Sebel's executive. 615 This claim fails. 616 The second way of putting the s 52 case was Clyde's primary case in this regard. This claim was not based on s 51A and the contemporaneous reasonable basis for making the representations. Rather, it was founded upon the proposition that a promissory representation was made about the irrevocability of the price representations referred to above. The "implied irrevocability representations" were said to be with respect to the price representations and to be that ([49] of the 4th FASC): (a) it did not regard itself as entitled to vary or withdraw its offer as to price at any time without the consent of Clyde Engineering ; and/or (b) its signing a binding contract in accordance with its offer as to price was not conditional upon any further consideration or approval of that price on the part of any of Sebel's directors or executives; and/or (c) when preparing Sebel's Response and subsequently confirming the validity of that response, it had sufficiently and adequately addressed and taken into account all items relevant to be taken into account when determining its offer as to price; and/or (d) all considerations and approvals necessary on Sebel's part for it to make a binding and irrevocable offer at the price quoted had been undertaken and given. 617 These were said to be promises that were positive and unqualified, such that if the position was otherwise, and if Sebel was able to withdraw its tender, a qualification was necessary to these promissory representations. There was not. Thus, they were misleading. So ran the argument. 618 Emphasis was placed on the fact that these representations were said to be promissory and not merely representations as to future matters. If they were merely the latter, the argument suffered the fatal problem that the evidence as a whole revealed that an honest, carefully reached decision on what price was to be put forward was amended by a change to an underlying corporate policy, which change was notified promptly when made. 619 Clyde relied on a number of cases in this Court in support of this promissory claim. Central to the claim was a passage from the judgment of Lee J in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR 40-940. That was a case in which moneys had been extracted from investors after a meeting at which it was said (about the future) that the premiums being sought from the investors would be repaid by a certain date and that units would in the future be exchanged for shares in a new company. It was argued (on behalf of the representor/promissor) that the primary judge had erred in failing to find that the applicants had not proved that the person responsible for the statement did not believe or did not have reasonable grounds to believe what was said. Unbeknownst to the prospective investors, there had been concern expressed as to the viability of the relevant project amongst the board. This was not disclosed. What was said to the investors was a confident statement about the return of the premium. There was no mention of any risk or problems with the venture. In dealing with unfulfilled promises or predictions Lee J said (at p50, 251): "In respect of unfulfilled promises or predictions, there may be conduct which may be shown to be in contravention of sec. 52 of the Act without it being established that there was an implied representation by the maker of the prediction or promise that there were reasonable grounds for the belief that the prediction or promise would be fulfilled, Section 52 is directed at conduct of a corporation in trade or commerce as part of an Act concerned with the elimination of unfair trading practices which affect persons with whom a corporation may deal, or which may have an impact in trade or commerce that is regarded as adverse and undesirable. A positive unqualified prediction by a corporation may be misleading conduct in trade or commerce if relevant circumstances show the need for some qualification to be attached to that statement or the possibility of its non-fulfilment to be disclosed as a requirement of fair trading. The fact that the corporation believed or had reasonable grounds for belief that the prediction would be fulfilled, would not answer the question as to whether the conduct was misleading or deceptive conduct in trade or commerce. The misleading or deceptive conduct may be found in the failure to qualify the statement or disclose the risk of non-fulfilment and the event of non-fulfilment of a prediction or promise may be evidence that raises an inference that such a risk of non-performance existed or that qualification of the positive statement, prediction or promise was required. Each case will depend upon its own circumstances, but the assessment of misleading or deceptive conduct is an objective test not dependent upon the proof of an intent to mislead or deceive on the part of a corporation (see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) ATPR 40-307; 149 CLR 191) and restriction of the application of sec 52 in respect of promissory or predictive statements by a corporation to conduct of the corporation which involves a lack of belief on the part of the corporation or absence of grounds upon which the corporation could form such a belief would be inconsistent with the thrust of the section." [emphasis added] 620 The applicant places reliance on the emphasised passages. There should equally be emphasis placed on the sentence after the second passage emphasised: each case will depend on its own circumstances. The question is, what was, in the circumstances, required for there not to be conduct in contravention of s 52. At the risk of supplanting different words for the section, and to borrow from the above passage of Lee J - what was required for there to be fair trading between the parties? 621 There is no need for me to deal further with the facts before Lee J and the Court in Wheeler Grace. It is sufficient to say that they are of a different order than the facts here. 622 Clyde called for tenders. Sebel tendered. Its tender contained material which can be said to amount to representations. One of the conditions of tendering was that the tender have a validity date. That was extended from time to time. Clyde, a large engineering concern, made clear in correspondence what it took the process of contract formation to be. Sebel drafted and put forward its tender honestly and competently. Clyde indicated no reliance on Sebel for it (Clyde) to understand the legal ramifications and subtleties of the tendering process. Clyde thought it had accepted Sebel's tender in October 1998. If Clyde was wrong and if the tender validity period expired it now says that it was misled and deceived because Sebel failed to qualify its tender in the following way (see [50] of the 4th FASC): (a) Sebel regarded itself as entitled to vary or withdraw its offer as to price at any time without obtaining the consent of Clyde to do so; (b) Sebel's signing a binding contract in accordance with its offer as to price was conditional upon further consideration or approval of that price on the part of Sebel's directors and executives; (c) When preparing Sebel's Response and subsequently confirming the validity of that response, Sebel had not sufficiently or adequately addressed and taken into account all items relevant to be taken into account when determining its offer as to price; (d) Not all considerations and approvals necessary on Sebel's part for it to make a binding an irrevocable offer at the price quoted had been undertaken and given. 623 Sub-paragraph (a) has not been made out. Sebel did not broach this question until Mr Doman dealt with the matter. If it is sought to require a qualification irrespective of the state of mind of those at Sebel it in effect is requiring Sebel to give legal advice to Clyde about the binding nature of the tender and the limits of that binding nature. Clyde was in control of the tender process. It neither called for, nor I imagine would have been much interested in (let alone rely on) Sebel's views as to its entitlement to act based on hypothetical views as to what might occur in the future. I take it from the evidence that those at Sebel saw themselves as bound to comply with the Process Protocol and keep the tender open, at least until the tender validity date expired. If they had been asked, they would have said as much. There was no suggestion of withdrawing until Mr Doman began to deal with the matter. Fair dealing between these two commercial organisations did not require anything in the nature of (a) to be disclosed. 624 Likewise fair dealing did not require (b) to be stated. Clyde set the tender rules. Until Mr Doman became involved there was nothing intended to be conditional about the offer. There was nothing conditional about the offer. If it had been accepted (a matter within Clyde's power) it would have become a contract. 625 The matter in (c) did not have to be disclosed, because it did not exist. Sebel had fully and adequately addressed all relevant items in preparing its tender. 626 The matter in (d) did not have to be disclosed because it too did not exist. All considerations and approvals necessary on Sebel's part for it to make an offer in a tender, under the rules of tendering nominated by Clyde, had been undertaken or given. 627 The statement of principle enunciated by Lee J in Wheeler Grace has been approved by Heerey J in Bowler v Hilda Pty Ltd (1998) 80 FCR 191, 203-206 and French J in Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962. It is unnecessary, and would be inappropriate, for me to engage in any analysis of the content of the passage of Lee J, and the competing views referred to by Heerey J in Bowler. It is sufficient for me to take from what Lee J said that in some circumstances, in order to engage in fair dealing, and to avoid misleading or deceptive conduct, a qualification may need to be appended to a prediction or a promise. However, it does not follow that any statement in any commercial context which can be characterised as a promise must be accompanied by any existing legal or factual qualification (whether known or adverted to by the predictor or promissor or not). 628 The circumstances here did not call for Sebel to qualify its tender by reference to a body of changed future circumstances not within the contemplation of anyone at Sebel at the time. 629 Fair dealing required no such thing.

Negligent misrepresentation 630 Clyde also claimed that at the time of submitting its tender, Sebel owed a duty of care to Clyde to take care in respect of the price representation. It was also asserted that there was some continuing duty in respect of the representations. 631 The following matters were alleged to constitute the breach of the duty ([84] of the 4th FASC): (i) Sebel failed to sufficiently or adequately address and take into account all items relevant to be taken into account when determining its offer as to price for each of Stage 1 and Stage 2 and 3 of the Project. (ii) Sebel failed to properly consider the fact that the representations made may not be able to be adhered to and therefore should be qualified. (iii) Sebel failed to properly qualify the representations in a manner to accurately reflect the certainty of those representations. (iv) Sebel failed to advise Clyde of the possibility that the representations may not be adhered to and therefore could not be relied on. (v) Sebel failed to undertake and give all considerations and approvals necessary on its part for it to make a binding and irrevocable offer at the price quoted. 632 It is unnecessary to traverse the law on whether in a tendering relationship such as this a duty of care can arise: see generally Seddon Government Contracts; Federal, State and Local (2nd Ed) pp267-70; Holman Construction Ltd v Dalton Timber Company Ltd [1972] NZLR 1081, 1082-3; and Perre v Apand Pty Ltd (1999) 198 CLR 180. 633 Not least of the difficulties in the propounding of any such duty is the lack of reliance of Clyde on Sebel saying anything to it about the quality of its (Sebel's) own work in preparing the tender. The tender was to be submitted. All parties understood that Clyde would then carefully, in its own interest, evaluate it. If the tender was commercially satisfactory and it was open (there being a tender validity date) it could be the subject of acceptance. In one sense, it would be a matter of indifference to Clyde whether Sebel had set its price with care. If it had not and the price was too high Sebel risked rejection; if it had not and the price was too low Sebel risked acceptance. 634 In any event, as I have indicated earlier, Sebel's tender was put together rationally, carefully and in a businesslike manner. Even if some duty of the kind pleaded existed, there was plainly no breach.

Postscript on liability 635 It may, in the light of the genuine and hostile views of Mr Jones and Mr Hancox, be seen as unfair and contrary to common commercial decency to reach the conclusions I have. How, it might be asked rhetorically, can Sebel be allowed to "get away with" walking out on Clyde when it knew that Clyde had relied on it and when it knew that Clyde was then (in March/April 1998) placed in an invidious position? 636 It must not be forgotten, when facing this question, that Clyde was in control of its own tendering procedures. It set the rules. It controlled the correspondence. At no time did the parties lapse into a state of false security because of the close co-operation within the relationship or because of anything Sebel said or did. Clyde chose to regulate the relationship between the parties by the words of its choice. It was asked for a token of commitment; it refused to give it, in the generic form requested. In so doing, Mr Sheldrick did not say that such a request was unnecessary because a contract existed. He said the requested letter would not be given and a contract would be sent to Sebel in due course. This was a step indicating that Sebel was intended to provide the seating, as was plain already, but nevertheless, this was a step within the nominated steps described in the Process Protocol and letters of 28 March and 2 June 1998 indicative of an, as yet, unformed legal relationship. 637 What is plain from the conduct, relationship and communications of the parties is that they both intended to create a contract upon which their relationship was to be based. The difference between them is whether that occurred. 638 Mr Graham and Mr Sheldrick thought that what they had done was sufficient to create a contract. Objectively speaking, in my view it was not. My view was shared contemporaneously by Mr Gabadou, Mr Wright and, I think, by Mr Jones. 639 Sebel misled no-one. It was either bound in contract not to change its position, or not so bound. In my view it was not so bound. 640 No case was made relying on some innominate tort importing an obligation to act fairly or decently in business. No such tort or legal obligation is known to the law in this country: compare the lack of an independent tort of unfair competition. If Sebel acted in a way that lacked commercial decency, as was the view (and an understandable one) of some of the actors at the time, it may face commercial consequences by injury to its name, but it did not, in my view, breach any contract or otherwise commit a tortious or statutory wrong. 641 The application should be dismissed.

Damages 642 Notwithstanding my views as to the proper disposition of the proceedings, it is appropriate that I deal with damages, lest I be found to be wrong in my views on liability, should there be an appeal. 643 The approach which I have taken is to deal with the issues raised as follows. First, I will deal with the question of damages in contract. Here, the parties were not at odds in terms of questions of principle. The matter is to be examined by comparing what the passenger seating has, and will, cost, deducting what it would have cost had Sebel performed its contract. Secondly, I need to rule on certain matters of evidence, in particular parts of the evidence of an accountant called by the respondent. Thirdly, I will deal with differences in approach by way of principle in dealing with any damages under the TPA or negligence and certain factual matters therein involved.

Damages in Contract 644 Clyde brought together its evidence on damages through a report of a chartered accountant, Mr McClintock. He based his reports on evidence of Clyde employees who had personal knowledge of the conduct of the Project, in particular Messrs Habgood, Thompson and Graham. 645 Mr Habgood held a BSc and a diploma in industrial engineering. He had forty years in the transportation engineering industry. He was a manufacturing engineer at Clyde. He has been closely involved in the Project. Mr Habgood calculated the cost to Clyde of the following aspects of the design and manufacture of the seats for Stages 1, 2 and 3 of the 4GT Project: (a) seat components; (b) tooling; and (c) seat assembly labour. Mr Habgood was not cross-examined. In this circumstance and considering the apparent careful and painstaking approach of Mr Habgood, for the reasons set out by Samuels JA in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 586-7, I accept Mr Habgood's evidence. 646 Mr Graham also gave evidence calculating the cost to Clyde of the following aspects of the design and manufacture of the seat for Stages 1, 2 and 3 of the 4GT Project: (a) Design - Clyde; (b) Design - Consultants; (c) Prototype - Development; (d) Testing; and (e) Project Management. 647 Mr Hapgood also updated these figures. 648 Mr Graham was cross-examined to a very limited extent on questions of quantum, to which I will refer. 649 Mr Thompson was a qualified accountant who worked at Clyde. He had been involved in the day-to-day costings for the Project and had a detailed knowledge of the primary records and procedures of Clyde. He gave evidence of the cost to Clyde of the design and manufacture of the seating for stages 1, 2 and 3. Mr Thompson was not cross-examined. I accept his evidence for the reasons given concerning Mr Habgood's evidence. 650 Based on the calculations prepared by these and other Clyde witnesses, Mr McClintock calculated Clyde's damages (as at 30 June 2002 for the purposes of interest) at $6,780,154. This is a figure representing the difference between actual and anticipated costs for Stages 1, 2 and 3 less what Clyde would have paid Sebel, plus interest and other adjustments, and using commercial rates of compound interest, rather than Court rates (and thereby reaching a lesser sum than by the employment of Court rates). 651 Sebel identified a number of areas where it disputed what underlay these figures. I will deal with each and allow the parties to compute the consequences should that become necessary. Initially, a large number of matters appeared to be in dispute. However, I take Sebel's counsel's detailed written submissions to set out the matters finally in issue, with which I now deal.

Actual costs incurred by Clyde 652 Mr McClintock's calculations were based on an acceptance of Clyde's evidence that its Stage 1 costs for the passenger seating unit were $10,635,660. This was said by Sebel to be an unreliable foundation for a number of reasons. First, it was based on affidavits specially prepared for these proceedings. I reject this in the absence of cross-examination of the deponents. Secondly, it was said that Mr McClintock expressed no opinion on the reliability or completeness of the information. I reject this in the absence of cross-examination of the deponents of the underlying affidavits. Thirdly, a discovered document was pointed to which was said to raise doubts about the reliability of Mr McClintock's underlying information. No cross-examination of the deponents of the underlying affidavits took place on this document. I do not propose to deal with any procedural issues raised about its alleged late discovery. No adjournment was sought to deal with the relevant witnesses. It was said that no witness was called to explain the document, a spreadsheet, which might be seen as reflecting some claim on the SRA. In the absence of any challenge to any underlying witness based on this document, it would not be appropriate to speculate on the nature and importance (or lack thereof) of it. Fourthly, other discovered documents dealing with a claim on the SRA for enhancement were said to undermine the figure of actual costs. They were not put to the Clyde witnesses. I refuse to speculate on them. 653 For these reasons the costs of Stage 1 supplied by the Clyde witnesses and used by Mr McClintock in his calculations should be accepted.

Sebel Contract Price 654 Mr McClintock's calculations were based on Sebel's 1997 contract price being an average price per seat across all configurations. Sebel says that the tender figure of $5,153,280 should be taken, not $5,031,576 used by Sebel (a difference of $121,704). I accept Clyde's submission in this respect. 655 However, I would take a figure of $121,704 as part of an arbitrary contingency figure for contracting disputes to which I will make reference later.

Allowance for uncertainty in-relation to stages 2 and 3 656 Mr Lovat, an officer of the SRA, gave confidential evidence, which was not the subject of cross-examination, about the future of the Project. In my view, taking all his evidence into account and in the light of the budget papers in Exhibit K, in accordance with the assessment of future events discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, Poseidon Ltd & Sellers v Adelaide Petroleum N L (1994) 179 CLR 332 and Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, 503-507, I would assess Stage 2 as definitely proceeding and not discount it at all, and discount Stage 3 by 25%.

Other matters 657 There were a number of matters said by Sebel to demonstrate that the figures underlying Mr McClintock's report were unreliable. No precise figures were said to attend these matters, but they were matters for the Court to take into account.

GRP panels 658 Clyde now proposes to build the end saloon fixed seats and tip-up seats using what are called GRP panels. Sebel had not proposed to use these. 659 Various adjustments were made to Mr McClintock's calculations because of this, based on Mr Graham's evidence that had Sebel proceeded Clyde would have sourced the panels elsewhere, leading to a reduction in Sebel's price. This was the area in which Mr Graham was cross-examined on damages. Mr McClintock reduced the price by $780,700. This was said by Sebel to be overly conservative. It was said that Sebel would have had redesign costs. Mr Payne however was not able to quantify any such costs. For reasons which I gave earlier ([462] above) I am cautious about Mr Payne's evidence. Nevertheless, I would include a sum of $25,000 for design and dispute contingencies in addition to the $121,704 referred to earlier for these matters.

width of seat 660 Sebel submitted that Clyde has undertaken work with a view to modifying the seats to achieve a width of 441mm. This, if correct would have been a change to the specification of December 1998, of 450mm, a width to which Sebel had worked during 1998. 661 The documents referred to by Mr Payne did not reveal any required seat width different from 450mm. 662 I reject this attempted qualification by Sebel.

load requirements 663 Sebel submitted that it had not been provided with load details of the interface of the passenger seating with the train cabin. Mr Payne described additional design work that Sebel might have had to undertake once relevant load details were available. It was said that these matters were not covered by the specifications. 664 Clyde, on the other hand referred to a number of parts of the 1997 specification, which were mentioned at [103] and [104] above. It is unnecessary to deal with these matters in any further detail. In the light of the content of the specifications and the cross-examination of Mr Payne, I am not prepared to make anything other than a nominal adjustment for design and dispute contingencies of another $25,000 in this regard. 665 I have taken earlier an arbitrary figure of $121,704 for such contingencies; the additional sums to which I have made reference are the only other changes that I would make to the contract damages outlined by Mr McClintock. I think that these sums, though arbitrary, are appropriate to take into account in respect of possibilities of argument and dispute between Clyde and Sebel had a contract between them gone ahead.

Contract D Assuming there to have been breached a promise to negotiate in good faith a contract based on the 1997 tender, the following submission was put by Sebel: In circumstances where Clyde was insistent upon pursuing the negotiation of a seat supply contract that imposed 35 year maintenance obligations on Sebel, and required Sebel to change its entrenched position in relation to intellectual property, it is submitted that the prospect of the parties reaching agreement could not be put at above [50%]. Although Graham says he would have accepted Sebel's initial tender without any maintenance component, he was not the real decision maker. Any award should be discounted accordingly. 666 I reject these submissions. First, the evidence exhibits a willingness of Sebel to undertake maintenance. If, however, maintenance could not be negotiated, Mr Graham's evidence was that Clyde could live without Sebel undertaking maintenance. I see no reason why I should not accept that as unlikely to be indicative of Clyde's position. Secondly, whilst agreement had not been reached about intellectual property, the elements of it had been discussed and on the evidence I find that, given an exhibiting of good faith by Sebel in negotiation, that issue would have been resolved. 667 I see no basis for other than a nominal discount of, at most, 10%.

The question of expert evidence 668 Significant objections were taken by Clyde to parts of the first report and the whole of the second report of a chartered accountant called by Sebel to answer Mr McClintock's report, Mr Ross. 669 Judicial focus has, in recent times, been given to the question of admissibility of expert evidence: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 729-50 (per Heydon JA); H G v The Queen (1999) 197 CLR 414, 427 (per Gleeson CJ); Velevski v The Queen (2002) 187 ALR 233, 252-53 (per Gaudron J) and 267-69 (per Gummow and Callinan JJ); Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 (Full Court); and Quick v Stoland Pty Ltd (1998) 87 FCR 371 (Full Court). 670 Central to the orderly and admissible presentation of any expert evidence is the clear identification of the opinions that the expert seeks to present. This is a separate question from whether, for the opinions of the expert to be admissible, the basis of the opinions on the assumed facts must be set out, about which there may be different views expressed in Makita and Quick v Stoland. I think, however, any such difference is unlikely, in most cases, to be of significance in the light, in particular, of s 135 of the Evidence Act and its likely application to disembodied and unsubstantiated expressions of opinion, a matter to which reference was made in Quick v Stoland. If I may say so, without intending to put to one side the comprehensive reasons of Heydon JA in Makita, or the careful reasons of the Judges in Quick v Stoland,in this case, I particularly bear in mind what Gleeson CJ said in H G v The Queen, supra at 727. The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question … Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. [emphasis added] 671 It is necessary to understand, with precision, the content of the opinions being proffered. One of the reasons that this is so important is that the Court must be able to understand whether the expert is, or the extent to which the expert is, drawing upon any particular, and if so, what, training, study, expertise or experience, which he or she may have in respect of any particular opinion. A discursive discussion by an intelligent expert (from a particular field or discipline) who is well endowed with intelligence, insight and common sense, may help someone unravel a problem in another field of expertise or discipline; but, he or she will not be proffering opinions on that subject matter that will be either helpful or admissible as evidence in Court. 672 Mr Ross was a chartered accountant. That was his area of expertise. 673 As to Mr Ross' first report, I deal only with the paragraphs objected to by Clyde. 674 I reject [18], [19], [21], [23], [24], [25], [26], [27], [29], [30], [42], [43], [44], [45] to [54], [55], [56], [57] to [67], [68], [69], [70], [71] to [76], [77], [80], [81], [82], [83], [84] to [132], [140] to [153], [154], [155], [157], [158], [159], [160], [161], [162], [163], [164], [169], [172] to [178], [181], [182], [192] to [194], [197], [214], [242], [243] to [258], [265], [266], [270], [271], [272], [273], [279] to [283] and [284] to [288]. All contain, in substance assertions, not apparently based on accounting expertise. If such accounting or other opinions based on his expertise can be discerned, they are not clearly based on any identified facts or assumptions. Such of these paragraphs as can logically be read as assumptions can otherwise stand as such. 675 I allow [195 (c)] as being arguably rooted in accounting expertise. 676 The report is largely a discursive body of views of someone who understands enough of litigation to put forward an argumentative case for how Sebel could defend these proceedings. There are precious few accounting opinions displayed, and such as there may be are buried. Mr Ross may perhaps be forgiven. He deals, to a degree responsively, with the report of Mr McClintock (that was, largely, not objected to). There may well have been great value in those preparing Sebel's case obtaining the views of Mr Ross. Such views would no doubt have assisted them in analysing and preparing the case and in marshalling and formulating arguments. That is the legitimate, accepted and well known role of expert assistance for a party preparing and running a case. Expert evidence in which a relevant opinion is given to the Court drawing on a witness' relevant expertise is quite another thing. There is no ethical reason why it cannot be given by the person providing assistance, as long as that person and the legal advisers understand and recognise the difference between the two tasks, and keep them separate. This was not a report containing accounting opinions, or any other opinions, based on relevant expertise. 677 Much the same can be said about Mr Ross' second report. I do not propose to dissect it line by line. Much is assertion, submission and argument. The whole report is objected to. Such opinions as can legitimately be put forward, if any, are sufficiently buried as to require mining to be discovered, a task which I am not prepared to perform. I reject the whole report. 678 The combined efforts of Mr McClintock and Mr Ross have not been wasted. Through the dialectic of their debate, what was in dispute about the question of damages was distilled. I have dealt with the matters in controversy. However, I did not need to have all their reports, as they developed, put into evidence. I do not intend what I have said to be a personal or professional criticism of counsel or solicitors. A practice has grown up, certainly in Sydney, perhaps elsewhere, in commercial matters, for each party to arm itself with what might be described as litigation support expert evidence. In this case, no point was left undiscussed by Mr Ross - whether legal, logical, evidential or common sense. 679 Parties and their legal advisers should expect the Court to look with rigour upon expert evidence in order to ensure that only relevant opinions, based on relevant expertise and on coherent and ordered assumptions, are put on the court record. Whatever may be the strict requirements of s 79 of the Evidence Act, s 135, in at least other than straightforward cases, demands that the basis of expert opinion be apparent, and that the opinions, in respect of which the witness has expertise, be displayed and apparent. Cross-examination, in particular of a determined and dialectically combative kind, should not be necessary (as to an extent it was here) to shear away the layers of evidence, in order to assess whether such evidence does involve opinions, and if so, what they are and whether they are relevant, in the sense that I have discussed. 680 The rejection of Mr Ross' evidence does not disadvantage the respondent in any way. I have dealt earlier with the contract damages. The disputes there, and elsewhere on quantum, which have no doubt been distilled with his assistance, lie in non-expert evidence and submissions.

Damages for s 52 and negligence 681 Sebel submitted that Clyde has misconceived the approach to the question of damages in relation to the tort and statutory claims. 682 The approach of Clyde in relation to these claims was the same as its contract claims. This was not the product of elementary error, overlooking the difference between compensating for loss of a bargain (by comparing the actual position to the position that would have obtained had the contract been performed), and compensating for damage caused by a wrong, statutory or tortious (by comparing the actual position to the position that would have obtained had the wrong not occurred). Rather, it was a considered application of principle to the facts. 683 Clyde recognised that under s 82 of the TPA and the law of tort the measure of putting an applicant in the position in which it would have been had the contravention not occurred has traditionally been used (see, for example, Brown v Jam Factory Pty Ltd (1981) 53 FLR 340). However, Clyde submitted that in a number of cases the High Court has stressed that the measure of damages under s 82 should not be confined by common law concepts: Marks v GIO Australia Holdings (1998) 196 CLR 494, 503, 510, 529, 537; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413, 459. The ultimate task of the Court is the fair compensation to the injured party: Henville v Walker (2001) 206 CLR 459 at [131] and Johnson v Perez (1998) 166 CLR 351, 355-56. 684 The facts here were said by Clyde to lead to the same result whether contract, tort or statutory claim is employed. The essence of what was put was set out in [168] to [170] of Clyde's written submissions: …Had Clyde Engineering been made aware that the representations made to it were open-ended as to price, Clyde would have sought from Sebel a firm price for seating from which Sebel did not leave open to itself the option to revoke or resile, or such a price from another seating manufacturer, and included that firm price in its tender to the SRA. At paragraph 63 of the Affidavit of Reginald Keith Graham sworn on 19 October 2000, Mr Graham stated: "If at this time [late 1997/early 1998] Sebel had changed its offer from around $540 per seat and instead quoted around $1,000 per seat prior to Clyde finalising its Tender submission to the SRA, I would then have: (a) Sought to negotiate with Sebel to secure an offer from them that was closer to the $540 price per seat they had previously indicated; and (b) If no deal could be done with Sebel I would then have opened negotiations with other seating manufacturers who had submitted an offer to attempt to improve their offers in terms of both design and price and also to use as leverage in further negotiations with Sebel; and (c) If none of these negotiations were fruitful, I would reluctantly have accepted the lowest conforming bid, taking into account all relevant risks, from the tenders received. This may well have been the Sebel bid at around $1000 per seat. I would have increased the total price of Clyde's Tender to the SRA to cover the higher than expected cost of the seats" Even if that firm price had been higher than the price included in Sebel's response (in fact even if it had doubled), Clyde Engineering contends that it still would have been selected as the successful tenderer by the SRA but at a price which did not leave it exposed as happened in fact in the present case. 685 Clyde posits that had the wrongs not occurred it would have been told of the lack of fixity in Sebel's price, it would have fixed Sebel to its tendered price or if it had been told (before 8 October 1998) that the price was as Mr Doman put it on 1 April 1999, it would have dealt with the matters described by Mr Graham at [686] above. 686 However, as Sebel pointed out, it was never Sebel's intention in 1998 to change its price. The essence of the claims by Clyde is that the unqualified promises were made and in circumstances where there was no foundation for making them, at least in unqualified form. Thus, it seems to me to be irrelevant and misleading to posit that Sebel told Clyde in 1998, before Mr Doman was employed, that the price was, or would be, different. The real question is what would have happened if Sebel had (on this hypothesis) not been misleading or deceptive or negligent and had qualified its promises or representations and said matters which conveyed that Clyde could not rely on Sebel maintaining its tender after, at the latest, the end of the tender validity period. 687 In those circumstances, Clyde would, to act logically and reasonably, and conformably with how Mr Graham and Mr Sheldrick otherwise acted, have ensured that it accepted the tender of Sebel or made sure otherwise that it remained open. This would have led to Sebel being bound to its 1997 prices, in some fashion. On this hypothesis, Clyde's use of the contractual measure of damages is appropriate. 688 However, putting the matter this way highlights a fundamental difficulty for Clyde on liability and quantum. Mr Sheldrick and Mr Graham did think they had accepted Sebel's tender. If they had been told expressly that the Sebel tender would, or may not, be kept open, they may well have clarified and extended the tender validity period and made sure that they accepted the tender within time. However, these were the very things that they tried to do and that they thought they had done, by no later than 13 October 1998. Mr Graham's evidence in his affidavit (see [291] above) that he was "absolutely certain" on 13 October 1998 that Clyde had accepted Sebel's offer should be recalled in this context. It is difficult to see how they would have acted differently, on the basis of the relevant hypothesis. 689 On this analysis, which I think is correct, no loss occurred.

Reserved rulings on objections 690 The proceedings were conducted before me on the basis that certain material could be admitted, subject to objection and relevance. I acted on that basis. I said that I would rule on any such conditionally or provisionally admitted evidence in my reasons. I have already discussed some of these rulings. 691 Exhibits A and A1 contain lists of objections to affidavits with the results of various rulings already made, identification of what material was not pressed and identification of which parts of affidavits were admitted conditionally or provisionally. The exhibits are typed. I have indicated on them in handwriting, my further rulings on the conditionally or provisionally admitted material in the column headed "Allsop J Ruling". If, in relation to any ruling the parties or either party requires further written reasons, such can be the subject of an application after these reasons are published. Each party has liberty to apply within a reasonable time, say twenty one days, in that respect. 692 Also, there was handed up at the end of the hearing a consolidated index to the tendered document bundle. The parties withdrew documents agreed to be irrelevant. They were crossed out. A small number of documents were marked as admitted subject to relevance and objection. I have ruled on those documents by marking in hand the various entries. The agreed index unmarked by me was Ex M; the agreed index so marked will become an exhibit and numbered Ex M1. If there is any objection to this course either party may put submissions to me; and each party has liberty to apply within a reasonable time, say twenty one days, in that respect. 693 Finally, I would like to express my gratitude to counsel and solicitors for the efficient conduct of the hearing. Through the efficiency of the presentation of the evidence and submissions, a case of some complexity, concerning a considerable period of time was reduced to a little under three weeks of evidence and addresses.

I certify that the preceding six hundred and ninety three (693) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

L G Foster SC Counsel for the applicant: I R Pike

Counsel for the respondent: I M Jackman SC M R Elliott

Dates of Hearing: 8-12, 29 and 30 April, 1-3 May and 24-27 June 2002