Forte Sydney Construction Pty Ltd v N Moit & Sons

District Court proceeding

1. There was no dispute between the parties that, under both the Forte Subcontract and the Moits Final Tender documents, the lump sum price for the works was stated as $1,536,739 plus GST (i.e., $1,690,412.90).
2. Forte contended that the contract (consisting of its Letter of Engagement dated 16 May 2018, Subcontract of the same date, documents referred to in Schedule 1 of the Subcontract and the Scope of Works document; and an oral agreement in or about early May 2018 as to the allowance of $58,000 for the removal of GSW above ground) was formed upon Moits' conduct of commencing work on 25 or 28 May 2018 or alternatively by Moits' conduct in adopting or accepting the contract by reference to its 7 June 2018 EOTC No 1) (see [3] of the amended statement of claim filed during the course of the hearing below). On the basis of the Forte Subcontract, Forte sued for claims, ultimately quantified as being: in respect of nine specific items of work, the recovery of "excess" progress payments, totalling $114,956.08, and liquidated damages for 42 days to 15.11.2018 (at $5,000 per day) totalling $210,000; that being an overall claim of $324,956.08 (incl GST). It was common ground between the parties that the amount of $324,956.08 should be reduced by an amount of $32,122.41 due from Forte to Moits as unpaid retentions from another contract. Thus, Forte's final net claim amount was for $292,833.67.
3. Moits filed an amended defence, pleading that it entered into a contract with Forte (on the terms in the Final Tender Revision dated 21 May 2018) in or about June 2018, or alternatively July 2018 or alternatively August 2018. Moits contended that the effect of the Moits Final Tender was that, inter alia, there had been no "excess" progress payments, and there was no entitlement to liquidated damages. On the basis that the Moits Final Tender was the relevant contract document, Moits cross-claimed for unapproved or partially unpaid variations the net value of which was claimed as being $357,117.06, as a sum due thereunder, or alternatively as a quantum meruit (see further amended cross claim at [26C]), and for the return of the retention amount for the project of $32,122.41.

Primary judgment

1. The primary judge found (at [159]) that the Letter of Engagement was never signed by Moits or returned to Forte; and said that, in accordance with the authorities cited earlier in his reasons, the non-signature and non-return of the Letter of Engagement could not be treated as an acceptance of the proposed contract (citing Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 (Empirnall Holdings) at 535).
2. The primary judge found that each of the parties had made offers (see at [160]), referring to the Moits Final Tender and the Forte Subcontract, respectively; and noted that many of the provisions in the latter were at odds with the basis on which Moits submitted its tender (see at [161]). As noted above, the primary judge found that work commenced on the site on 25 May 2018 (see at [162]); and noted that Moits first transported excavated materials from the site on 1 June 2018.
3. At [163], his Honour said that there was no evidence that there were any discussions about the terms of the Forte Subcontract proffered by Forte to Moits. (This is the subject of ground 5 of the notice of appeal.)
4. The primary judge found that Forte, by requesting and permitting Moits to come onto the Site and commence works on 25 May 2018, engaged Moits on the terms of the Moits Final Tender (see at [165]).
5. The primary judge noted that: Moits had submitted a tender which clearly stated that the disposal of contaminated material would be on rates per tonne additional to the lump sums being quoted (see at [164]); Forte wanted the work to start promptly and had requested and permitted Moits to come onto the Site and commence works on 25 May 2018 (see at [165]); and said that Forte could not unilaterally impose upon Moits a Subcontract containing terms which were in conflict with the basis on which the tender was submitted and accepted (see at [166]). The primary judge considered that it defied commercial common sense to think that Moits had put forward a tender on the basis of Extra Over rates for disposal of contaminated material but somehow would accept the proposition that it could not charge at all for disposal of such material (see at [167]).
6. The primary judge went on at [167] to say that: … It is fanciful to think that Moit, as a commercial enterprise, would quote to do everything (including disposal of contaminated material) for a lump sum when it had no idea what was to be found underneath the surface once excavation started.
7. At [168] his Honour said that a reasonable person in the position of Forte and a reasonable person in the position of Moits would think that there was a concluded bargain when Forte engaged Moits to start work on the Site on the basis of the Tender including its pricing and conditions (see at [168]). (As to this last proposition, Forte argues that while there may be benefit in considering what a reasonable person might think as to the allocation of commercial risk in a contract, this cannot displace the actual objective intentions of the parties that arise from their words or conduct leading up to the formation of a contract.)
8. His Honour found that the arrangement between the parties was one that fell into the first of the categories considered in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron); that the parties had been in negotiation and reached agreement upon terms of a contractual nature but also agreed that the matter of their negotiation would be dealt with by a formal contract; that they reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms, but proposed to have the terms re-stated in a form which was fuller and more precise but not different in effect (and that they never did agree upon a fuller and more precise form) (see at [171]). In this respect, Forte argues that, given the finding that important provisions in the Forte Subcontract were completely inconsistent with the Moits Tender, for a finding that there was a contract within the first of the categories in Masters v Cameron, his Honour must have found that either the Moits Tender or the Forte Subcontract was abandoned by the parties during their negotiations, because they were fundamentally different in operative terms.
9. The primary judge characterised Forte's conduct in putting forward the Forte Subcontract in the form it did as Forte trying unilaterally to impose upon Moits the obligation to provide all of the services which were part of the tender for the lump sum price but to "ignore the subsequent Extra Over rates, exclusion and conditions of the tender" (see at [173]).
10. The primary judge concluded (at [174]) that the parties' contract was formed (meaning concluded) on Moits' conduct in commencing work on 25 May 2018. Pausing here, Forte does not challenge the primary judge's conclusion that (whatever its terms) a contract between Forte and Moits arose by or on 25 May 2018; nor the finding that the contract was formed on the commencement of work on 25 May 2018. The primary judge went on at [174] to say: … I find that the contract was the Tender submitted by Moit [i.e., the Moits Final Tender] and accepted by Forte. I find that the Subcontract put forward by Forte was not a contract between the parties, principally because important provisions in it were completely inconsistent with the Moit Tender and the basis upon which Forte engaged Moit, being the terms and conditions in the Tender.
11. The primary judge accepted that each variation claim by Moits contained a note that it was a claim pursuant to cl 6 of the Forte Subcontract but said that all this reflected was that the person preparing the variation claim made an assumption that the parties had entered into the Subcontract; and said that most of the claims (being for inclement weather or tip closure) were completely inconsistent with cl 6 of the Forte Subcontract (see at [175]), construing cl 6 of the Forte Subcontract as precluding any entitlement to an extension of time on the basis propounded in EOTC Nos 1 to 3. Forte notes that one of the significant differences between the documents was an extra over rate for tipping costs associated with general solid waste (referred to in the documents as GSW) (see the primary judgment at [142]-[144] as to the consequence of the application of this extra over rate).
12. His Honour did not deal separately with the quantum merit claim by Moits.

Grounds of appeal

1. By notice of appeal filed on 10 January 2022, Forte appeals from his Honour's decision on the following grounds: 1. Having correctly held that there had been a contract formed between the Appellant and the Respondent on 25 May 2018 (J 174), the learned Judge in the Court below erred in finding (J165 and J174) that the contract document or terms between the parties was the Tender (J7) submitted by Moits and not the Forte Subcontract (J80) in circumstances where; a. The facts found by his Honour (J56, J57, J59, J60, J62, J63, J64, J75, J96, J97, J107, J108, J109 and J110) and any inferences that could be drawn from those facts should have reasonably lead [sic] to a finding that either: i. the contract that formed between the appellant and the respondent was the Forte Subcontract and not the Tender submitted by Moits, or ii. the contract formed between the appellant and the respondent was a type 1 Master and Cameron [sic] type contract based upon the Forte Subcontract and its terms and not the Tender submitted by Moits and that any finding to the contrary of the contract being the Forte Subcontract was improbable or contrary to the compelling facts and/or compelling inferences that could be drawn from those facts; and/or. b. The facts and inferences that could be reasonably drawn from those facts could have only reasonably supported the view that the parties had adopted the Forte Subcontract as the basis of their negotiations leading up to 25 May 2018 and/or were not considering the Tender submitted by Moits otherwise than by incorporation into the Forte Subcontract as a schedule 6 document pursuant to which clause 11.3 applied (J95). 2. Having regard to the factual findings at by [sic] his Honour (J56, J57, J59, J60, J62, J63, J64, J75, J96, J97, J107, J108, J109 and J110) and having regard to the absence of any facts or reasonably compelling inferences to the contrary, his Honour erred in not finding that: a. Between 21 May 2018 and the formation of the contract, both Forte and Moits had adopted the Forte Subcontract as the basis of their negotiations and not the Tender submitted by Moits; and/or b. There was no evidence or reasonable inferences that could be drawn from events or circumstances between 21 May 2018 and 25 May 2018 to suggest that either Moits or Forte had adopted the Moits Tender as the basis of their negotiations or contract: and/or c. There was no evidence or relevant inferences that could be drawn from events or circumstances between 21 May 2018 and 25 May 2018 to suggest that the Moits Tender had any relevant purpose other than being incorporated into the Forte Subcontract for the sole purpose of provided rates for variations in accordance with clause 11.3 of the Forte Subcontract (J95) 3. The learned Judge in the Court below erred in finding that the Subcontract put forward by Forte was not the contract between the parties, principally because important provisions in it were completely inconsistent with the Moits Tender and the basis upon which Forte engaged Moit, being the terms and conditions in the Tender (J174) and (J165) as: a. At all material times between 21 May 2018 and 25 May 2018, Forte and Moits based their negotiations on the Forte Subcontract being the relevant contract document and not the Moits Tender; and/or b. The last form of contract submitted by either party prior to formation of the contract between them was the revised Forte Subcontract sent by Forte to Moits on 21 May 2018 at 6 pm (J75) pursuant to a request by Moits to Forte on 21 May 2018 at 12.15pm for Forte to kindly send the contract back with the revised amount on it (J63, J64), the contract in this context was and could only have been a reference to the Forte Subcontract (J64); and/or c. And to the extent that on 22 May 2018 at 11.12am Moits sought revision or clarification of that Forte Subcontract document in terms of the construction program (J107), Forte responded to that request on 22 May 2018 at 11 33am and 3pm (J108 and J109); and/or d. There being no evidence of any subsequent correspondence or discussion between the parties until Moits commenced work on 25 May 2018, the only reasonable inference that could be drawn was that Moits accepted the Forte Subcontract and the revisions and clarifications referred to in subclause (c). 4. The learned Judge in the Court below erred in finding that by requesting and permitting Moit to come onto the Porter Street site and commence works on 25 May 2018, Forte engaged Moit on the terms of the Tender (J165) by reason of the matters referred to in ground 3(a) to 3(d). 5. The learned Judge in the Court below erred in finding there is no evidence that there were any discussion [sic] about the terms of the Subcontract proffered by Forte to Moit (J 163) in circumstances where: a. The substance of the terms in the Forte Subcontract had been adopted in the immediately prior project at Junction Street between the parties (J28); and b. Moits had accepted that the substance of the terms of the Forte Subcontract would be the same as the Junction Street project (J57 and J59 and J60); and c. The parties had negotiations, both in writing (J32 to J109) and orally between April 2018 and 22 May 2018 which were about the substance of the terms in the Forte Subcontract, particularly where there was disagreement with the Moits Tender; and d. Any differences between the parties in respect to the Forte Subcontract terms and the Moits Tender terms were resolved between 21 May 2018, 22 May 2018 and/or by inference from Moits commencing work on site. 6. To the extent that the learned Judge in the Court below found that before 25 May 2018, Forte wrongly unilaterally imposed upon Moits, or wrongly insisted upon, the Forte Subcontract (J166 and J172), his Honour did so in error as the submission of the Forte Subcontract on 21 May 2018 at 957am and/or Forte revision on 21 May 2018 at 600pm and/or the Forte clarification on 22 May 2018, were all events prior to the formation of the contract and were each offers that were capable of being accepted or rejected by Moits, and in commencing works on 25 May 2018 or 28 May 2018, Moits accepted the Forte Subcontract. 7. Alternatively to the above, the Learned Judge in the Court below erred in not finding that the contract between the parties, being the Forte Subcontract formed on or about 28 May 2018 or alternatively on or before 7 June 2018 as pleaded in paragraph 3 of the amended statement of claim.

Notice of contention

1. By notice of contention filed on 2 March 2022, Moits contends that the primary judgment should be affirmed on the following ground: 1. His Honour held at [174] of the Court's reasons for decision that the contract was formed upon the respondent's conduct in commencing work on 25 May 2018. His Honour should alternatively have held that the Appellant accepted the terms, rates and the scope of works contained in the Respondent's Final Tender Document dated 21 May 2018, referred to at [151] to [155] of his Honour's reasons, by its conduct: a. On 25 June 2018, when it accepted, without demur, the fencing variation number V02, and the steel bin hire variation number V03; or b. On 6 July 2018, when Paul Ciantar (Mr Ciantar), on behalf of the Appellant, instructed the Respondent by email to "go ahead" with shotcreting, and sought to confirm that the applicable rate was for 100mm thick shotcrete, consistent with the extra over rates at item 12 of the Respondent's Tender Document; or c. On or about 30 July 2018, when Kent Hu (Mr Hu), on behalf of the Appellant, informed James Horne (Mr Horne), on behalf of the Respondent, that the Appellant would make payment in full for the variations claimed by the Respondent for fence hire and General Solid Waste (GSW) removal; or d. On 13 August 2018, when the Appellant accepted, without demur, the missing capping beams variation number V04; or e. On 30 August 2018, when, at a meeting between representatives of the parties held at the Respondent's head office: i. Mr Hu, on behalf of the Appellant, informed the Respondent that: 1. variations numbered 01 (GSW removal), 02 (ITF fence hire), 03 (bin hire), 04 (additional works) 05 (dewatering), 07 (5 tonne excavator works), and 08 (additional anchors) had been" agreed" by the Appellant; and 2. the Respondent should continue to "keep getting day dockets signed for de-watering as instructed, as [the Appellant] opted not to accept a lump sum price for dewatering the site"; and ii. Mr Hu informed Mr Horne that the Appellant did not "have any problem with these works" - referring to the variations - and that the Appellant was "just waiting on funds from our funder"; or f. in early September 2018, when Belinda Li (Ms Li), a director of the Appellant, told Matthew Garnon (Mr Garnon), the Chief Financial Officer of the Respondent, that the variations were agreed, although the Appellant did not then have the funds to pay the Respondent; or g. on 24 September 2018, when Ms Li, in the presence of Mr Hu, informed Mr Horne that: i. the Appellant would pay the Respondent for the variations claimed by it, including the GSW variation, but that the Appellant was waiting on funds from its funder; and ii. she had received the EOT claims, including for inclement weather, about which she did not raise any complaint.

Appeal grounds 1-4

1. These grounds will be dealt with together as they all in essence involve a challenge by Forte to the finding by the primary judge that the contract by which the parties were bound was the Moits Final Tender and not the Forte Subcontract.

Forte's submissions

1. Forte submits that there is no evidence to support a finding that it accepted the terms of the Moits Final Tender or that it ever abandoned the terms of the Forte Subcontract (and argues that, rather, the evidence is that the parties objectively abandoned the Moits Final Tender in their negotiations after 9.57am on 21 May 2018).
2. Viewed in terms of offer and acceptance Forte contends that its 9.50am email on 21 May 2018 amounted to an offer (as his Honour found) and a rejection of the Moits Quote (since it included terms that expressly contradicted terms of the Moits Quote, such as allocation of the risk of GSW and latent conditions in the Site); and says that, as a counter-offer, it would ordinarily amount to a rejection of prior offers. Forte argues that, from 9.57am on 21 May 2018, the only extant offer was that contained in the Forte Subcontract and that this was what the parties were then discussing.
3. Reliance is placed on the findings by his Honour (at [60] of the primary judgment) that "contract" in the context of the 9.50am email could only mean the Forte Subcontract; and (at [64]) that the reference in Moits' email at 12.15pm on 21 May 2018 to the "contract" being sent back with a revised amount was a reference to the draft Forte Subcontract sent by Forte that morning.
4. Forte points out that, from 9.57am on 21 May 2018, Moits was seeking amendments to the Forte Subcontract (such as the amendments in relation to the price and completion date) but otherwise did not seek any amendments to reflect the terms of the Moits Quote or the Moits Final Tender. In that regard, Forte points out that although (at 12.15pm on 21 May 2018) Moits sent back a revision of the Moits Tender Submission, this is consistent with the Moits documents being included by reference into the Forte Subcontract; and in the same correspondence Moits refers to Forte sending back the contract (i.e., the Forte Subcontract) with the revised amount in it.
5. Forte contends that, objectively, the correspondence from Moits at 12.15pm on 21 May 2018 could not be interpreted as a counter-offer; placing emphasis on the request by Moits that Forte "send the contract back with the revised amount on it".
6. Thus, Forte argues that, as of 6.00pm on 21 May 2019 when it emailed the revised Forte Subcontract with a revised price to accommodate Moits' shotcrete calculation (and said "Please find the above revised contract for your review, sign off and send back), there was only one offer on the table between the parties (that being the offer comprised by the Forte Subcontract). Forte points out that when (at 11.12am on 22 May 2018) Moits emailed Forte (thanking Forte for the revised contract and programme, and seeking amendments to the programme) there was no reference to the Moits quote and the acknowledgement by Moits was of its receipt of the Forte Subcontract.
7. Forte places weight on the fact that, at this point, Moits did not seek revision of the Forte Subcontract; it simply sought adjustment to reflect a later commencement date (to which Forte agreed); and that from 3.00pm on 22 May 2018 (when Forte emailed Moits an updated programme showing the start date as 28 May 2018 and completion date of 20 August 2018) there were no further emails or discussions concerning the contract up until the commencement of works by Moits.
8. Forte thus contends that there is incontrovertible evidence to show that, prior to Moits commencing works on site on 25 May 2018, there was only one offer standing between the parties (that being the Forte Subcontract); and says that it was that offer that was accepted by Moits by commencing work on site. (To anticipate Moits' submissions on this point, Forte contends that the only extant offer as at the time of commencement of the works on 25 May 2018 was the Moits Final Tender which specified that it remained open for 60 days; and hence it was that offer which was accepted by Moits, at Forte's request, commencing work on the Site on 25 May 2018.)
9. Alternatively, Forte says that the proposition that the Moits Final Tender or quote was adopted as the subject of an agreement between the parties at any time after 6.00pm on 21 May 2018 is glaringly improbable or contrary to compelling inferences (citing Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [22]ff, per Gleeson CJ, Gummow and Kirby JJ).
10. Insofar as the primary judge considered it fanciful to suggest that Moits accepted the Forte Subcontract provisions, Forte contends that it was open to Moits to accept the commercial risks to be awarded under the Forte Subcontract (and, indeed, Forte says that the evidence was that it did so on the previous Junction Street Project between the parties). Forte says that there was nothing "fanciful" or which "defies commercial common sense'' in a conclusion that Moits, by its conduct, accepted the terms of the Forte Subcontract; rather, it is the conclusion that would have been reached by a reasonable person in Forte's position having regard to all the circumstances. Forte submits that a reasonable person in its position would not have understood Moits' commencement of works on Site to have signalled that Moits was doing so on the basis of the Moits Final Tender, particularly, given that at that time the "last shot" in terms of counter-offers had been "fired" by Forte.
11. Forte emphasises the factual matrix (as set out above) in this regard, particularly that the parties had previously worked on a project under a contract in the same or similar terms to the Forte Subcontract and that there was no further issue raised by Moits on the question of retention once Forte had rejected its proposal as to retention; from which Forte argues that a reasonable person in Forte's position would be entitled to assume that Moits had accepted the terms of the Forte Subcontract. Forte emphasises in its reply submissions the following matters in support of that conclusion.
12. First, on which Forte places significance, that the Forte Subcontract was the last contractual document provided by either party to the other before works commenced. Forte attaches weight to the fact that, having received and considered the "provided commercial arrangements" proposed by Forte, Moits did not elect to "withdraw" the Moits Final Tender (as it had expressly retained the right to do in its tender) but instead proceeded to commence the works. Forte says that Moits did not reject the offer or seek further to negotiate the terms; it simply commenced the works "in accordance with the deal". Forte says that the negotiation regarding retention is illustrative in this regard.
13. Second, that the rates in the Moits Final Tender were expressly incorporated into the Forte Subcontract as the Schedule of Rates. Forte points out that those rates were negotiated (as reflected in the emails) and says that they were not inconsistent with the Forte Subcontract but rather were intended by the parties to form part of its terms (the rates being used to price variations - see cl 11.3).
14. Third, as noted above, the parties had previously contracted on similar terms, which Forte relies upon as meaning that there was nothing "fanciful" or which "defies commercial common sense" as far as Forte was concerned in Moits' acceptance of the Forte Subcontract.
15. Insofar as Moits places weight on the stipulated means of acceptance of the offer contained in the Forte Subcontract, Forte responds by noting that an offer may stipulate a particular method of evidencing acceptance but that it is matter of construction whether it is compulsory to accept the offer in accordance with that method such that any other method will be ineffective (citing JD Heydon, Heydon on Contract: The General Part (Thomson Reuters, 2019) (Heydon on Contract) at [2.740] and the cases there cited). Further, Forte says that, where a mode of acceptance is stipulated in an offer, an offeror will still be entitled to enforce a contract made by another method of acceptance if the stipulation was solely for the offeror's benefit and it is waived (citing Heydon on Contract at [2.750]).
16. As to the two stipulated methods of acceptance in the Letter of Engagement, Forte accepts that Moits did not sign or return the Forte Subcontract (see at [79] and [159] of the primary judgment). Forte argues that if, as Moits submits, that was the only available method of acceptance, then Forte waived that requirement (which was solely for its benefit) by providing access to the Site for the works to commence. Alternatively, and in any event, Forte submits that its offer was efficaciously accepted by Moits when Moits commenced Works on Site.
17. Forte accepts that "silent acceptance of an offer is generally insufficient to create any contract" (referring to Empirnall Holdings at 534; as noted by the primary judge at [23] of his Honour's judgment); and that generally an offeror cannot create a contract by stipulating that a failure to act in response to the offer will be treated as acceptance (referring to Empirnall Holdings at 527-528 and 534). However, Forte points to the following exceptions to those general rules: first, where previous dealings or the history of the transaction itself give rise to an "inevitable inference" from the offeree's conduct that it accepted the contract as valid (Empirnall Holdings at 528); second, that where an offeree begins to perform the contract after an offer is made, such conduct may itself constitute acceptance without the need for the express communication of acceptance to the offeror (citing Empirnall Holdings at 534, 535); this being said to be an expression of the "last shot" doctrine that dictates that the contract in question will be on the last of competing contractual terms (see Heydon on Contract at [2.390]).
18. Relevantly, it is noted that in the Moits Final Tender, Moits expressly reserved the right to "withdraw its tender if it is provided commercial arrangements that are not suitable", that statement being repeated in each iteration of the Moits Final Tender. Forte submits that it reasonably gave rise to an inference in the mind of a person in Forte's position that Moits would "speak up" if the commercial arrangements proposed to it were "not suitable"; yet, having received and reviewed the Forte Subcontract, Moits did no such thing - instead it stated "lets [sic] go with" the Forte Subcontract and asked that Forte "kindly send the contract [being the Subcontract] back with the revised amount on it". It is noted that, once that occurred, Moits thanked Forte "for the revised contract" and sought no further material changes to it before works commenced. Forte says that Moits' conduct communicated to a reasonable person in the position of Forte unequivocal acceptance of the Forte Subcontract terms and that this takes this case outside the operation of the rule in Empirnall Holdings.
19. Further, Forte says that Moits had notice of the Forte Subcontract (having been provided with the terms of that proposed "commercial arrangement" on 21 May 2018, and that, with that knowledge, Moits elected to provide the services on the Site. Forte says that the contract then arising was on the terms of the party who fired the last shot (i.e., Forte itself).
20. Thus, Forte contends that it was the Forte Subcontract which was the only contract "on the table" at the time the works commenced. Forte says that, by that time, the Moits Final Tender had been rejected by the "counteroffer" contained in the Forte Subcontract submitted to Moits at 6.00pm later that day. Forte says that Moits' submissions do not explain why the earlier Moits offer constituted by the Moits Final Tender, which had thus been rejected, was somehow reactivated so as to be available for acceptance by Forte.

Moits' submissions

1. Moits places weight on the email sent by it at 12.15pm on 21 May 2018, in that (however it be characterised - whether as an offer "to treat" as to the substantive differences between the Forte Subcontract and the Moits Final Tender (upon the provision of the Forte Subcontract with the revised amount) or as an offer to contract on the provision of such a revised document) Moits says that Forte's response to that email was not an "acceptance" of any such offer by Moits, but a counter offer.
2. Moits points out that each of the Letter of Engagement (and thus the Forte Subcontract document) and the Moits Final Tender was expressed as being an "offer"; and says that those offers superseded the terms of any prior negotiation. Accordingly, Moits say that the relevant question is not on what basis the parties had negotiated but as to whether either of the offers made thereafter was "accepted".
3. Moits points to the specification in the Letter of Engagement as to the two ways in which the offer it contained might be accepted and argues that the first (prescription of the manner, form and time by which it might be accepted - i.e., by signing at the foot thereof and returning it no later than 23 May 2018) implicitly involves the offer lapsing if not accepted by that time. Moits maintains that the second (i.e., by the failure to sign and return the letter permitting Forte to assume that the offer had nevertheless been "accepted") impermissibly treats a non-response as constituting acceptance.
4. Moits says that Forte did not (between 6.00pm on 21 May 2018 and 23 May 2018) vary its form, manner and time requirements for acceptance of its offer; nor did Moits otherwise purport to accept Forte's offer. Thus, it is contended that Forte's offer to contract on the basis of the Forte Subcontract lapsed at the start of Thursday, 24 May 2018 (when it had not been accepted in the prescribed manner within the stipulated time). Accordingly, Moits says that, whatever might be the basis on which the work commenced on 25 May 2018, it was not on the basis of the Letter of Engagement and the Forte Subcontract.
5. As to the primary judge's conclusion that a contract between Forte and Moits arose upon the commencement of the works, Moits says that no doubt Forte prescribed the manner and form and time for acceptance of its offer so that it would know with certainty whether its offer to contract on the terms of the Forte Subcontract had been accepted; and that, from the commencement of Thursday, 24 May 2018, Forte knew that its offer had not been accepted. Moits points out that there was not, on 24 or 25 May 2018, a negotiation between the parties about the terms on which the works commencing on Friday, 25 May 2018 would be done.
6. Moits emphasises in this regard that the Moits Final Tender was expressed as an offer that was valid for 60 days; and that it was submitted on the basis that a suitable commencement arrangement would be reached. It is noted that no means for acceptance of that offer was specified. Moits says that Forte knew that its own offer had not been accepted and there were thereafter no discussions about the basis on which the works would commence. Thus, Moits says that, as from 24 May 2018, there was no extant offer competing with that in the Moits Final Tender.
7. It is noted that the primary judge found that Forte nevertheless wanted and sought to have the works commence and permitted that to occur on 25 May 2018. Moits contends that, notwithstanding the absence of express acceptance by Forte of the terms of the Moits Final Tender, the seeking and acceptance of services from Moits in the knowledge of the terms on which Moits was prepared to provide the services (being the terms stipulated in the Moits Final Tender) was a taking of the benefit of the offer made in the Moits Final Tender, and in this sense an "acceptance" of it.

Determination

1. The relevant principles to be gleaned from the authorities, and particularly Empirnall Holdings, may be summarised as follows.
2. While an offeror may not stipulate that silence will be taken as acceptance of the offer (see for example Felthouse v Bindley (1862) 11 CB (NS) 869; (1862) 142 ER 1037), acceptance may be tacit, or implied from conduct, as opposed to express (Empirnall Holdings at 527 per Kirby P, as his Honour then was, and 534 per McHugh JA, as his Honour then was). The silence of an offeree in conjunction with the other circumstances of the case may indicate that he has accepted the offer (see Empirnall Holdings at 534 per McHugh JA, his Honour citing Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334 at 340).
3. An offeree who has omitted to accept an offer, but has nonetheless taken the benefit of that offer will be bound by the contract (Empirnall Holdings at 535 per McHugh JA). His Honour formulated the appropriate statement of principle (at 535) thus: where an offeree with a reasonable opportunity to reject the offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer, it is open to the tribunal of fact to hold that the offer was accepted according to its terms. In determining whether a party to a putative contract has accepted the offer by its conduct, the ultimate issue is whether a reasonable bystander would regard the conduct of the offeree, including his or her silence, as signalling to the offeror that the offer has been accepted (Empirnall Holdings at 535 per McHugh JA).
4. The conduct of parties may indicate, as was the case in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32, that although the parties' negotiations did not proceed in the manner contemplated to the point of contract formation, the parties did intend to contract in the circumstances which had occurred. In that case, Ormiston J concluded that agreement could be inferred by the parties' conduct, notwithstanding the fact that the situation remained one which was analogous to an agreement subject to finance.
5. Where an offer is neither expressly accepted nor expressly rejected, the subsequent conduct of the offeree in performing in accordance with the terms of the contract which was contemplated in the offer will generally indicate to a reasonable person in the position of the offeror an intention to accept that offer. This was so in the case of Brogden v Metropolitan Railway Co (1877) 2 App Cas 666, where, in the absence of express approval of a finalised contract, the conduct of the offeree in supplying goods in accordance with the draft contract was treated as an acceptance of the offer.
6. In Empirnall Holdings, the appellant did not formally accept the respondent's offer, however it did accept the work done by the respondent by its conduct, being the payment of progress claims in light of the demolition and construction works undertaken by the respondent. Kirby P, as his Honour then was, outlined the salient features of that case that led the Court to conclude that acceptance had been implied by the appellant's conduct (at 528): … True it is, Mr Abrahams had made it plain that Mr Jury did not sign contracts. Notwithstanding that fact, the work proceeded. The printed contract form was paid for. The work was done by Machon Paull under the stated belief that it was done pursuant to the printed contract. That contract was certainly received by Mr Jury. Empirnall clearly received the benefit of Machon Paull's work performed on the stated basis. Progress payments were made in the manner provided by the printed contract. … … The circumstances in which assent may be inferred, although never specifically stated, vary with the infinite variety of facts which come before the courts in disputed contractual cases. From the facts, looked at objectively, a court may be willing to infer a party's acceptance. Various categories of cases of this kind have emerged over the years. One arises where there have been previous dealings between the parties or where something in the history of the transaction between the parties gives rise to "an inevitable inference from the conduct" of the disputing party, and from its "doing and saying nothing" for a considerable time, that it "accepted the [contract] as valid". This was the way in which the English Court of Appeal expressed its conclusion in Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334 at 340: see also discussion in Chitty on Contracts, 25th ed, (1983) (pars 79ff at 48) and D W Greig and J L R Davis, The Law of Contract (1987) at 303f.
7. His Honour went on to list a number of considerations to which a court may have regard when determining whether to infer acceptance of the written contract from a party's conduct (those being indicia of assent to the contract, and indicia of an absence of assent - see at 529). Some of the key considerations to which his Honour adverted include: that the starting point is that silence will not normally be taken as assent, and thus, from the absence of acceptance will be derived the prima facie conclusion that the contractual arrangements were not to be found in the document which was never accepted by the other party; whether emphatic explanations for the failure to sign have been given; whether the agreement was in its final form; whether there had been extensive negotiation of the contractual terms; the timing at which the conduct occurred vis-à-vis the time at which the putative agreement was said to come into force; the nature of the relationship between the parties; whether the contract was in a standard form; whether the conduct followed the procedures envisaged by the putative contract.
8. His Honour concluded (at 530) that an objective bystander, examining the facts of the case, would conclude from the whole course of dealings between the parties that the appellant had accepted the agreement tendered to it by the respondent.
9. McHugh JA in Empirnall Holdings concluded thus (at 536): … Empirnall's acceptance of the work, when considered objectively, should be taken as an acceptance of the work on the terms and conditions offered by Machon. The case is not so much one of acceptance by silence as one of taking the benefit of an offer with knowledge of its terms and knowledge of the offeror's reliance on payment being made in return for his work. Since the work for which payment is outstanding was carried out after 19 October 1983, there is no need to distinguish between the positions before and after that date.
10. In similar factual circumstances to Empirnall Holdings, in Brown v Brown (1905) 5 SR (NSW) 146, the defendant's consent was inferred from its conduct insofar as the architect in that case, acting under instructions to prepare the contract and call for tenders for the construction of a house accepted the plaintiff's tender, the house was constructed and interim payments were made by the defendant, who had referred to "the contract" in correspondence.
11. Reliance was placed by Moits on Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 where Bryson JA considered the question whether a purported acceptance of rights in a listed entity that was not in accordance with the time stipulated was effective.
12. Having regard to the chronology of events outlined above, I cannot accept that the offer contained in the Moits Final Tender submitted on 21 May 2018 (though in terms it stated that it was open for acceptance for 60 days) remained extant at the time of commencement of the works on 25 May 2018. The reality is that the terms of the offer that had been submitted by the initial tender submission had been rejected by the provision of the Forte Subcontract which contained inconsistent terms (as has been highlighted in the parties' submissions). Significant in terms of the sequence of communications is the 9.57am email from Moits on 21 May 2018 advising Forte "[p]lease lets go with this no. & contract". That was clearly a reference to the draft of the Forte Subcontract that had been submitted to Moits at 9.50am (as his Honour found).
13. Thereafter, there was debate between the parties as to the correct calculation of the contract quantity of shotcrete, followed by the request from Moits that Forte send the contract back with the revised amount on it; Forte did so at 6.00pm on 21 May 2018, and this was followed by a request, to which Forte acceded, for adjustment in the contract documents to the commencement date in the early works programme in order to avoid confusion. That request could only have been consistent with the parties proceeding on the basis that what was being negotiated was the Forte Subcontract, with the revised amount as per the communications.
14. True it is that the Letter of Engagement prescribed a manner of acceptance (by a stipulated time) that was not complied with by Moits. However, I do not accept that it followed from that prescribed mode of acceptance that the offer lapsed when there was not a complying acceptance by 23 May 2018. That is because this would make otiose the statement in the following paragraph as to Forte assuming acceptance if the contract was not signed and returned. While it is the case that a party ordinarily cannot stipulate silence as a mode of acceptance, in the present case it is not the case that Forte unilaterally imposed the Forte Subcontract on Moits in this manner. Rather, what is clear is that the parties were negotiating as to the terms of the draft Forte Subcontract (Moits, for example, not having pressed its request as to the scope of the retentions after Forte rejected it) and then (the price having been agreed and the adjustment to the works programme agreed), Moits commenced work on the Site. By that stage, the terms of the Moits Final Tender had relevantly been rejected.
15. In the absence of a signed acceptance of the Forte Subcontract (and in light of the rejection of the terms of the Moits Final Tender) a reasonable person in the position of Forte must in my opinion have understood that the conduct of Moits (as offeree) was done with the intention of accepting the offer embodied in the Forte Subcontract (see Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 at [69] per Campbell JA, with whom Giles and Whealey JJA agreed). Far from it defying common sense to reach that conclusion, such a conclusion is consistent with Moits' confirmation to "go with" the number and contract; and it is in this context that the statement as to assumption of acceptance makes sense. In effect, Moits was on notice that if it commenced work on 25 May 2018 without the Letter of Engagement having been formally signed and returned, Forte would assume that Moits accepted its terms - and Moits did nothing to disabuse Forte of that understanding. What seems to me glaringly improbable is that a reasonable person in the position of Forte in all of those circumstances would have understood the conduct of Moits in commencing the works (after Forte had rejected the terms of the Moits Final Tender and had rejected a request to revisit the issue of retentions) as being pursuant to the Moits Final Tender.
16. Therefore, I have concluded that the primary judge erred in finding that Forte engaged Moits on the terms of the Moits Final Tender rather than on the terms of the Forte Subcontract. The challenge to the finding the subject of grounds 1-4 of the grounds of appeal is thus made good.

Ground 5

1. This ground of appeal relates to the finding at [163] of the primary judgment that there was no evidence that there were any discussions about the terms of the Forte Subcontract proffered by Forte to Moits.

Forte's submissions

1. Forte accepts that there were no oral discussions between the parties between the date when the first version of the Forte Subcontract was provided to Moits (21 May 2018 at 9.50am) and the date Moits commenced works (25 May 2018). However, Forte points out that there were discussions between the parties between late April 2018 and 17 May 2018 about the terms upon which the contract would be based; as well as email correspondence (as referred to above).
2. As to the oral discussions between the parties, Forte complains that the primary judge did not address the conflicting evidence of pre-contract discussions in respect to some significant issues between the parties in the proceeding (including as to matters relating to the "extra overs"); nor did his Honour make any findings as to credit or as to which of the respective witnesses' accounts was to be preferred.
3. Forte says that it is not correct to say there were no conversations about the terms of the contract (and argues that Moits' silence on the terms of the Forte Subcontract during the negotiation would have tended to support Forte's account of the conversations). It is submitted that if Moits thought there was an oral agreement about extra over rates for GSW, it would have raised this during the email correspondence (in circumstances where the Forte Subcontract expressly placed these risks on Moits).
4. Additionally, Forte notes that, when the contract was first sent on 21 May 2018, the email from Forte indicated that the terms were as per what was agreed between the parties from the previous project in which they were involved (the agreement for which also provided that the risk of site conditions resided with Moits). It is said that the email put Moits fairly on notice that the same conditions would apply, noting that the contract was enclosed as an annexure and had those express terms. It is said that Moits' email reply was effectively to agree.
5. Forte says that the significance of the outcome of this ground of appeal goes to whether the express terms of the Forte Subcontract were discussed between the parties prior to the formation of the contract and would be relevant to explaining the differences between the Forte Subcontract and the Moits quote. It is said that the conversations also explain the silence of Moits when negotiating the terms of the Forte Subcontract in the email correspondence between 21 May 2018 and 23 May 2018, or more particularly its failure to press different changes to the Forte Subcontract in the written correspondence between them.

Moits' submissions

1. Moits argues that appeal ground 5 raises a factual issue as to the basis of the negotiations up to 25 May 2018, namely, whether the primary judge erred in finding that there was "no evidence that were any discussions about the terms of the subcontract proffered by Forte to Moits". Moits points out that no subcontract document was "proffered" to it before 9.50am on 21 May 2018; and that a revised subcontract document was proffered at 6.00pm that day. Therefore, it says that the finding being challenged was thus one made in respect of the documents proffered at 9.50am and/or 6.00pm on 21 May 2018.
2. Moits points out that Forte's submissions acknowledge that in the interval between 9.50am on 21 May 2018 and the commencement of the works on 25 May 2018 there were no "oral discussions", and Moits thus contends that there is no arguable basis on which the challenge in this appeal ground 5 can succeed.
3. Moits says that, whatever the terms of discussions between the parties between late April 2018 and 17 May 2018, they were superseded by the offers made by one party to the other on 21 May 2018; and that the controversy between the parties is not about whether something said by either party between late April and 17 May 2018 informed the other's understanding of an offer but whether either offer made on 21 May 2018 was "accepted". Thus, Moits says that the challenge in appeal ground 5, even if were factually well founded, raises no conclusion material to the conclusion that the works were not commenced on the basis of the Forte Subcontract.
4. In reply submissions, Forte agrees that if the primary judge's finding at [163] is to be read as relating solely to oral discussions about the version of the Forte Subcontract proffered by email at 9.50am and 6.00pm on 21 May 2018 (as asserted by Moits in its submissions at [6.3]), then this ground of appeal falls away. Forte accepts that there was no oral discussion after the Forte Subcontract was sent to Moits and prior to commencement of the works (although it reiterates that there were communications by email, referring to the emails summarised above).

Determination

1. As is evident from the competing submissions on this ground, this turns in effect on an interpretation of what the primary judge meant when he said (at [163]) that there was no evidence that there were any discussions about the terms of the Subcontract proffered by Forte to Moits. If that was an observation as to oral discussions in the period from 9.50am to 6.00pm on 21 May 2018, then as noted above Forte does not contend that his Honour erred in that observation (or finding if it be one). There were, however, certainly communications as to the terms of the Forte Subcontract as proffered on 21 May 2018 - both as to the revised price and as to the early works programme. Therefore, to the extent that it was submitted by Moits that there was silence on the terms of the Forte Subcontract between the time it was proffered and the time works commenced on the Site, this is demonstrably incorrect.
2. In any event, nothing turns on this given the conclusion in relation to grounds 1-4 above.

Ground 6

1. This ground relates to the finding at [166] of the primary judgment that "Forte could not unilaterally impose upon Moit[s] a subcontract containing terms which were in conflict with the basis on which the Tender was submitted and accepted".

Forte's submissions

1. Forte does not submit that either party could unilaterally impose alternative terms on the other after the date a contract came into existence. Rather, Forte says that this appeal ground is predicated on the proposition that, to the extent that Forte was seeking acceptance of its terms prior to the formation of a contract, it would not be unilaterally imposing those terms on Moits, but merely submitting an offer which was capable of acceptance or rejection, and the relevant date in this regard was 25 May 2018.

Moits' submissions

1. As to the challenge raised by ground 6, Moits points to the submissions to the primary judge in which it says Forte's position was that, notwithstanding the absence of the signing and return of the Letter of Engagement by 23 May 2018 (or ever), in the context of an absence of express disagreement with the offer that the works be undertaken on the basis of the Forte Subcontract "there can be only one reasonable characterisation of … [Moits'] commencement of the work on site and that was to accept the offer by Forte".
2. Moits says that Forte's Letter of Engagement did not specify commencement of the works as a means of acceptance of the offer therein; rather, it specified something different (namely, express notification of acceptance in a specified form and manner and within a specified time, and, in default of such notification it would "assume acceptance of the offer"); and that each was of a circumstance to occur prior to the commencement of the works on 25 May 2018.
3. Moits' position (noting that the primary judge concluded that the absence of "signature and return" did not constitute "acceptance" of the Forte proposal that the works be done on the basis of the Forte Subcontract) is that, in the context of Forte prescribing an express form, manner and time for the communication of Moits' acceptance of the former's offer, there is nothing in the circumstances of this matter that warrants any departure from the ordinary rule.

Determination

1. Again, there is no dispute by Forte that it could not unilaterally impose contractual terms on Moits. However, on my review of the evidence it did not do so. The contractual terms (on the basis of the Forte Subcontract) were negotiated; and, while there was no formal acceptance of the contract, a reasonable person in Forte's position must have understood that the conduct of Moits in commencing works was on the terms of the Forte Subcontact. To the extent that the primary judge found otherwise, that finding was to my mind glaringly improbable and inconsistent with the incontrovertible evidence (as referred to above).
2. Indeed, the statement in the Letter of Engagement as to Forte's assumption of acceptance is inconsistent with the contention by Moits that Forte should be taken to have understood that Moits, when commencing works on the Site, was doing so pursuant to the terms of the Moits Final Tender that Forte had rejected.

Ground 7

1. This ground is raised only to the extent that there is a finding that the contract was not formed on 25 May 2018. In that regard, Forte says that a finding should be made that the contract was formed on 28 May 2018, being the date when more significant works were commenced to be carried out by Moits, or alternatively on or before 7 June 2018, being the date when Moits acknowledged the Forte Subcontract and its terms in writing. In either case, Forte says that it was the terms of the Subcontract which formed the basis of the parties' contractual arrangement.
2. On this ground, Moits says that, as there is no challenge in appeal grounds 1-6 to the finding that a contract was formed on 25 May 2018, appeal ground 7 does not arise. In reply submissions Forte emphasises that this ground only arises if Forte fails on its primary grounds, or Moits succeeds on its Notice of Contention (which Forte notes also raises different dates for formation of the contract).
3. Given the conclusion I have reached on the previous grounds of appeal (and on the notice of contention - see below) it is not necessary to deal with this ground of appeal.

Notice of contention

1. Moits' Notice of Contention identifies several instances of conduct subsequent to 25 May 2018 which it maintains were inconsistent with the works being undertaken on the basis of the Forte Subcontract but was consistent with the Moits Final Tender providing the terms on which the work was being done. It is submitted that such conduct is evidence of Forte's agreement to the Moits Final Tender as the basis on which the works commenced and were done.
2. The conduct in question is as set out in the Notice of Contention above. As to the first of those matters, Moits points to the acceptance by Forte, on 25 June 2018, of the fencing variation V02 (which had not been approved in advance of the works being performed; cf the requirement for such advance approval in Forte's draft subcontract) and the steel bin hire variation V03, which also was not approved in advance. It is noted that these variations were not disputed by Forte and were paid in full.
3. As to Forte's acceptance on 13 August 2018 of the missing capping beams variation V04, it is noted that was an excluded item (No. 8) in Moits Final Tender).
4. As to the 30 August 2018 meeting, it is noted that Mr Hu informed the participants (including Mr Horne, Mr Doyle, Mr Singh and Mr Ciantar), that: a number of Moits' variations had been "agreed" by Forte; that Moits should continue to "keep getting day dockets signed for de-watering as instructed as [Forte] opted not to accept a lump sum price for dewatering the site"; and that Forte "don't have any problem [sic] with these works" (referring to the variations) and Forte was "just waiting on funds from [its] funder".
5. In response as to the notice of contention Forte says that, insofar as Moits contends that the contract between the parties was not formed until 25 June 2018 (at the earliest) or 24 September 2018 (at the latest), no explanation is provided as to why the formation of the contract would be treated as having been so delayed, noting that the works commenced on 25 May 2018. Forte says that commercial parties will not be attributed with such an intention in the face of facts signifying an intention to be bound at or about the time of commencement of the Works.
6. Further, Forte says that the conduct relied upon by Moits does not evidence "acceptance of" the Moits Final Tender, nor is it inconsistent with the Forte Subcontract, for the following reasons.
7. First, that most of the alleged conduct relates to Forte's acceptance of variations (referring to 1, (c), (d), (e), (f) and (g) of the notice of contention). It is noted that Moits submits that because the price for these variations was not approved in advance, the payment of them by Forte was inconsistent with cl 11.1 of the Forte Subcontract. However, Forte notes that cl 11.3 provides that "where applicable" variations were to be priced "in accordance with the rates stated in any ... Schedule of Rates". It is noted that the Forte Subcontract explicitly incorporated the Moits Final Tender as a Schedule of Rates. Thus, it is said that the fact that variations were valued in accordance with the Moits Final Tender and were paid was entirely consistent with the Forte Subcontract.
8. In any event, Forte submits that it was entitled to accept and pay for variations claims by Moits even if they were not submitted strictly in accordance with the terms of the Forte Subcontract; and says that so doing did not in all the circumstances entitle a reasonable person in Moits' position to assume Forte had accepted the Moits Final Tender. For example, it is noted that Moits had on 7, 15 and 19 June 2018 submitted claims for extensions of time that expressly stated they were made under "clause 6", being the EOT clause in the Forte Subcontract (see the primary judgment at [91] and [175]). Forte says that the variation claims bore no express reference on their face to the Moits Final Tender.
9. Forte says that the Moits Final Tender contains no mechanism for variations, other than a "condition" that Moits was entitled to an extension of time and delay costs in the case of "variations"; and argues that the variation claims relied upon are equally consistent with the scope of works which formed part of the Forte Subcontract. For example, as to V02 (perimeter fencing), it is noted that the Forte scope of works at 1.0(f) indicates this was to be provided by the "Builder", not Moits; thus it is said that a variation was entirely appropriate; and as to V04 (capping beams), it is noted that this was not included anywhere in the Forte scope of works; and it is said that, again, this variation was entirely appropriate. Forte similarly says that the granting of extension claims was a matter within its discretion regardless of whether the work was strictly within the scope of the right to an extension.
10. Forte thus says that the conduct relied upon by Moits in relation to the variations is of no assistance in determining the terms on which the parties contracted; and that, at its highest, the conduct might be said to be inconsistent with the Forte Subcontract.
11. It is noted that the balance of the conduct relied upon by Moits relates to the "applicable rate" (see the notice of contention at 1). Forte maintains that this conduct is equally consistent with both versions of the contract proffered by the parties (as the Forte Subcontract explicitly incorporated the Moits Final Tender in respect of rates).

Determination

1. Acceptance of the variation claims (and the communications made as to the conduct of the works) is not to my mind sufficient to amount to an admission that the contractual arrangements were on the basis of the Moits Final Tender; and, to the limited extent that this post-contractual conduct is relevant in determining whether a contract was formed, I consider that it is of no assistance. Just as I place no weight on the communications from Moits to the effect that claims were submitted pursuant to a subcontract dated 16 May 2018, I place no weight on the submission of claims for variations or extensions of time inconsistent with the terms of the Forte Subcontract. Both, it seems to me, would be readily explicable by a misunderstanding as to the strict contractual position or an inattention to detail. It is unnecessary here further to explore those issues.

Orders

1. For the above reasons, I propose the following orders: 1. Appeal allowed. 2. Orders 1, 2 and 3 made on 14 December 2021 of the court below be set aside. 3. In lieu of those orders, make the following orders: 1. Judgment for the plaintiff on the plaintiffs claim in the sum of $292,833.67; 2. The cross claim by the defendant is dismissed. 3. The defendant/cross claimant to pay the plaintiff/cross defendant's costs of the proceedings in the court below. 4. The respondent to pay the appellant's costs of this appeal.
2. MEAGHER JA: I agree that the orders proposed by the President should be made for the reasons her Honour gives.
3. GLEESON JA: I agree with Ward P.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2022