Solicitors:
Macquarie Law Group for the plaintiff/cross-defendant
Memcorp Lawyers for the defendant/cross-claimant
File Number(s): 2020/283026
Publication restriction: Nil
[2]
INTRODUCTION
The plaintiff ('Invictus') sues the defendant ('Versatile') in debt and for damages following the termination of a contract entered into on 24 May 2017. The contract was for the provision, by Invictus, as sub-contractor, of formwork and concrete works to Versatile, the head contractor, in relation to construction works undertaken at Sydney International Airport, in Mascot. The contract was for a fixed sum ($161,240 excl GST). Versatile purported to terminate the contract on 1 March 2018. Invictus asserts that the purported termination was unlawful and therefore constituted a repudiation. Thereafter, on 26 March 2018, Invictus sent an invoice (numbered 2423) to Versatile, which the latter refused to pay. It sues on the invoice, for monies retained by Versatile and the balance of the contract sum.
In its cross-claim (as amended on the first day of the hearing), Versatile cited terms of the agreement that related to the standard of workmanship and its right to issue directions to Invictus. It asserts that stairs that were constructed by February 2018 for Stage 4 of the construction program were defective and did not conform with the requirements of the agreement, amongst other reasons, because there was bowing. On 23 February 2018 a formal notice to rectify the defects was sent to Invictus. Versatile asserts that Invictus failed to rectify the defects or comply with its direction, that this conduct amounted to repudiation by Invictus of its obligations and, on that basis, it terminated the contract on 1 March 2018. By its cross-claim, Versatile claims damages for loss comprised by its need to rectify the defects.
In its Defence to the cross-claim, Invictus relevantly asserts that the works were rectified or completed within time; disputed that the engineer's report provided any rectification methodology as Versatile had asserted and; challenged the adequacy and validity of the notice to rectify. It also asserted that Versatile had failed to mitigate its loss.
Prior to the commencement of the hearing, the parties had identified a large number of issues, at varying levels of generality. But by the time of closing argument, the issues had considerably narrowed to the following:
1. whether the bowing discerned on the stairs was a defect or did not conform with the contractual requirement;
2. the proper construction of the 23 February 2018 direction;
3. whether Versatile was entitled to terminate, under an express contractual right, or in exercise of its common law rights, for Invictus' non-compliance with the 23 February 2018 direction;
4. (if the purported termination was lawful, or simply if Invictus was in breach of contract) damages on the cross-claim;
5. (if the purported termination was unlawful), whether Invictus was entitled to the relief it sought in its action on a debt (under contract or sourced in statute), its action for damages or, alternatively, action for restitution.
[3]
The uncontroversial facts
What follows is largely uncontroversial and is taken from the parties' respective chronologies (Exhibit A and Exhibit 1). Because of the substantial narrowing of issues that occurred throughout the course of the hearing, I will identify the salient facts.
On 30 November 2016, Sydney Airport Corp engaged Versatile to carry out construction work ('Airport Work'). The Airport Work included, relevantly, form and concrete work to construct various stairs and ramps at the Airport.
On 24 May 2017, Versatile engaged Invictus under the Subcontract. Essentially, this required Invictus to supply and instal concrete, form work, reinforcement and labour to stairs consistently with drawings and specifications in a range of stages.
In their submissions, the parties drew attention to the following provisions of the Subcontract.
1. By clause 1.1, in consideration for Invictus' performance as subcontractor, Versatile agreed to pay Invictus the Subcontract Sum, including all costs, loss, damage or expense arising out of or in execution of the 'Subcontract Works';
2. By cl 4, progress claims were to be submitted (to the contract administrator) no later than the 25th day of each month. On issuing a payment schedule, the amount approved was to be submitted as a tax invoice. Versatile was (by cl 4.2) obliged to release payments to the subcontractor at the end of the month following the date of receipt of the tax invoice;
3. Under the heading 'Construction Program', Clause 5 provides:
"5.1 If the Subcontractor fails to complete the Subcontract Works or any stage by the relevant Practical Completion Date, the Subcontractor shall pay to Versatile or allow by way of liquidated damages the relevant amount stated in the Subcontract Details for each day from the relevant Practical Completion Date until Completion is reached. The Subcontractor acknowledges and agrees that the amounts prescribed by way of liquidated damages in the Subcontract Details are a genuine pre-estimate of the loss that may be suffered by Versatile as a result of the delay.
5.2 If the Subcontractor is delayed in the execution of the Subcontract Works or any stage by events beyond the Subcontractor's reasonable control and that have not been caused or contributed by the Subcontractor, which the Subcontractor considers to be such as to justify an extension of time for the relevant Completion Date, then the Subcontractor shall within 5 days after the Subcontractor should reasonably have become aware of the commencement of the cause of delay, give notice to Versatile in writing of its claim with all details of the relevant facts including the number of days involved.
…..
5.5 Any delay by Versatile in giving the Subcontractor access to the site will not be a breach of this Subcontract by Versatile, and will not entitle the Subcontractor to any additional payment, concession or other benefit or advantage.
5.6 Versatile may (exclusively for the benefit of Versatile), at any time, extend any Completion Date. The Subcontractor agrees that it is not entitled to costs nor will it make any claim for costs, for any reason whatsoever, in relation to extensions of time to the project."
1. Clause 7 provided for variations. Relevantly, cl 7.4 provides for the valuation of a decrease of omission. Clause 7.5 provided that the price of a variation shall be added to or deducted from the Subcontract sum, as the case may require;
2. Clause 8 provided for defects:
"8.1 The Subcontractor warrants the whole of the Subcontract Works against the defective workmanship and materials and against non-compliance of equipment or complete systems against specified performance and operation requirements for the Defects Liability Period specified in item 14 of the Subcontract Details commencing on:
(a) The Date of Practical Completion of the Head Contract Works; and
(b) For those items excluded at the Date of Practical Completion of the Subcontract Works, the date of completion of each of those items as determined by Versatile; and
(c) In respect of any items repaired or rectified during the Defects Liability Period, from the date of completion of the repair or rectification.
8.2 During the Defects Liability Period the Subcontractor shall be responsible for diligently making good any defects or omissions in the Subcontract Works. Any repairs or rectification works are to be carried out at times set by Versatile and the Principal and any occupants and such costs are to be borne by the Subcontractor.
8.3 At any time prior to the expiry of the Defects Liability Period, Versatile may direct the Subcontractor to rectify a defect or omission in the Subcontract Works. The direction shall identify the defect or omission and may state a date by which the rectification works are to be completed (or if no such date is specified, within 5 days).
8.4 If during the Defects Liability Period, any defects or omissions are not rectified by the Subcontractor within the date specified in Versatile's direction (or if no such date is specified, within 5 days), the Subcontractor agrees that it shall be deemed to have relinquished any rights it may have had to rectify the defects or omissions and Versatile may, without prejudice to any other rights which Versatile may have against the Subcontractor, carry out the rectification works or have them carried out at the Subcontractor's expense.
8.5 Notwithstanding this clause, Versatile may, at any time prior to the expiry of the Defects Liability Period, notify the Subcontractor of a defect or omission in the Subcontract Works, stating that Versatile intends to accept the defect or omission. Versatile may then, in its absolute discretion, deduct or recover from the Subcontractor the rectification cost Versatile would have incurred had Versatile engaged a third party to undertake the rectification works, or the resulting diminution in value of the Subcontract Works, whichever is the greater."
1. Clause 9.1(a) provided that if Invictus failed to carry out a direction of Versatile's representatives within the specified time or (if no time was specified) within a reasonable time, Versatile was entitled to issue a Default Notice (under cl 9.2) or, if the breach was not capable of remedy, Versatile was entitled, without giving a Default Notice, to terminate the subcontract (in accordance with cl 9.3);
2. Clause 9.1(c) provided that if Invictus failed to use the materials or a standard of workmanship required by the subcontract, Versatile was entitled to issue a Default Notice (under cl 9.2) or, if the breach was not capable of remedy, Versatile was entitled, without giving a Default Notice, to terminate the subcontract (in accordance with cl 9.3);
3. The requirements of a valid Default Notice were set out in cl 9.2, which were:
1. state that it is a Default Notice under cl 9.2;
2. identify the relevant failure(s) or breach(es); and
3. state that it requires Invictus to remedy the failure(s) or breach(es) within 10 working days after receipt.
1. Clause 9.3 provided that:
"If
…..
(b) The Subcontractor is in substantial breach of an obligation under this Subcontract which is not capable of remedy; or
(c) Within 10 Working Days of receiving a Default Notice from Versatile requiring it to remedy a breach, the Subcontractor has not remedied the breach of this Subcontract the subject of the Default Notice,
Versatile may, without prejudice to any other rights that Versatile may have under this Subcontract or at law:
(d) Terminate this Subcontract by notice in writing to the Subcontractor effective from the time stated in the notice or, if no time is stated, at the time the notice is given."
1. Clause 9.4 generally provided for Versatile's entitlements after it had validly exercised a right to termination. By cl 9.4(d) in particular, it was entitled to recover from Invictus as a debt due, any costs, expenses, losses or damages incurred or suffered by it as a result of, or arising out of or in any way in connection with, such termination.
From 26 May 2017, Invictus carried out a number of those stages and was remunerated for its work. By that date, Versatile had deducted (Invictus claimed unilaterally) the sum of $4,190 and a further amount ($2,127.83) as retention monies.
On 11 August 2017, Versatile says that it engaged Invictus (in writing) to carry out further construction work for a fixed sum of $16,500 to supply and install concrete, form work, reinforcement and labour to stairs consistently with drawings and specifications for Stage 4 Work. The Stage 4 Work was to reach practical completion by 5 December 2017. (For the Stage 3 work, Versatile's independent sub-contractor was to reach practical completion by 20 October 2017). On the same date, Mr Andrew Hanna, of Versatile, sent to Mr Maroun a costs breakdown of the subcontract sum of $161,240.
Invictus asserts (and Versatile disputes) that from 20 October 2017 and 27 January 2018, Versatile inhibited Invictus from carrying on the Stage 4 Work. There were text messages between Shuvra Saha (Project Manager for Versatile) and Pierre Maroun (Director of Invictus) about delay in concrete works, the expected installation of steel and commencement date for formwork. A text message of 25 January 2018 indicated that there was still delay to Stage 4 of the stairs. At any rate, on 28 January 2018, Invictus commenced work for Stage 4 by measuring the relevant stairs.
Invictus asserts (and Versatile again disputes) that from 28 January 2018 until 7 February 2018, Versatile again inhibited it from carrying out the Stage 4 work. Mr Maroun deposed that his team had gone on site and discerned that Versatile's demolition team had not cut back concrete enough and later, realised the steel beam was incorrectly installed. Then it realised that machinery had been left in the area. At any rate, on 7 February 2018, Invictus installed the formwork for the Stage 4 work.
Late, on the evening of 8 February 2018, Invictus poured the concrete for the Stage 4 Work into the formwork and reinforcement work it had done.
On 13 February 2018, Invictus attended the Airport to remove the formwork for the Stage 4 work. It contends that the Stage 4 work was now completed.
On 20 February 2018, Versatile commenced tiling the Stage 4 work through different workers.
On 21 February 2018, Mr Saha, for Versatile, sent an email to Mr Maroun, for Invictus, raising non-conforming work and defects with the stairs and defective pour in relation to the Stage 4 works.
Later that evening, Mr Maroun and Ms Hussein-Smith (Project Director for Versatile) conferred at the Airport with respect to the Stage 4 work. There was disagreement as to how the meeting ended. Invictus asserts, and Versatile disputes, that there was no agreement as to further resolution of the dispute until Invictus completed another job in regional New South Wales other than reconvening a meeting for 3 March 2018.
On 23 February 2018, Versatile sent a notice to rectify to Invictus of the Stage 4 stairs.
On 1 March 2018, Versatile sent (by email) a termination notice to Invictus.
On 2 and 3 March 2018, various emails were exchanged between the parties.
On 26 March 2018, Invictus issued Versatile the invoice (2324) for the sum of $17,117 for the Stage 4 Work. On 10 April 2018, Versatile issued a payment schedule which stipulated that Invictus was entitled to $0 with respect to invoice 2324.
In 2018, Invictus contends that it rectified the allegedly defective work.
On 5 May 2018, Versatile engaged a new subcontractor to continue with the works under the subcontract.
[4]
Invictus' case as ultimately propounded in closing argument
Versatile contended that the Stage 4 works performed were defective, and/or not in conformity with the contract and/or not properly installed or constructed in a proper and workmanlike manner. But although the alleged defects or lack of conformity were alleged in multiple ways, in paragraphs 8B and 10 of Versatile's Amended Cross-Claim, for reasons to be indicated later, this aspect of Versatile's case ultimately reduced to the question of whether there was bowing of 50mm in the middle on the front of the Stage 4 stairs.
It was this feature which Versatile contends was the subject of a direction given by Versatile to Invictus on 23 February 2018; and which, Versatile says, was not complied with in accordance with the requirement of cl 9.1(a) of the subcontract. Versatile went on to argue that given that the defect was also not capable of remedy, Versatile was entitled to terminate in accordance with cl 9.3 of the subcontract [1] , and also in common law. (As to the latter entitlement, Versatile submitted that the subcontract did not exclude a right to terminate under common law).
The way in which Versatile ultimately put its case and the evidence that emerged, especially from the experts, meant that other questions whether Versatile had other bases to terminate, based upon other defects, or disconformities associated with the ARUP site inspection report, in relation to Stage 4 works, and any other direction to rectify such defects or disconformities, or delay, all fell away; and so did the question of conformity with Stage 1B works.
[5]
Was the bow (or 'belly') a defect or non-compliance with the contract?
[6]
Rhonda Hussein-Smith
Ms Hussein-Smith was Versatile's project manager at the relevant time. She had been in the construction industry for 22 years.
Photos of the stairs, before the formwork was removed, and photos of the stairs after the formwork was removed, were included in the exhibit to Ms Hussein-Smith's first affidavit (Exhibit 2, formerly Exhibit RH11 to her affidavit). It was put to Ms Hussein-Smith, but she did not accept, that two of those photographs [2] must have been taken after 13 or 14 February, when the formwork was removed and, indeed, were not even stairs for Stage 4. (The same proposition was put in relation to photos 13 and 14 of Mr O'Donnell's report, which was similarly disputed). She said that she could not see exposed reo in relation to the photos in her exhibit. Other photos said to have been taken showing work done by Invictus prior to (4.4) and after (4.5) the pouring appeared in Mr O'Donnell's report.
Pouring of concrete occurred sometime between 8 and 9 February. Ms Hussein-Smith was asked whether she inspected the stairs after the pouring and she said that she had. She was also referred to a Non-Conformance Report of 9 February 2018. There was nothing in that report which set out issues about the condition of the stairs, but Ms Hussein-Smith said that the report had to do with environmental issues.
Ms Hussein-Smith accepted that Versatile had not received any complaint from Sydney Airports Corporation (SAC) about bellying, or exposed reo, on the stairs or other matters referred to in the ARUP site inspection report. Nor was there any Non-Conformance Report or other written reference until an email on 21 February.
As to this last matter, in her first affidavit, she deposed to a conversation with Pierre Maroun, in the presence of Robert Jreij, Versatile's Construction Manager, late on 21 February 2018. This was after Shuvra Saha sent an email to Invictus, on that date, that asserted 'non-conforming' workmanship and defects. She deposed that the conversation alluded to "the 50mm bow in the stairs" which had led to incorrect heights as well as exposed reinforcement.
She deposed to part of the conversation with Mr Maroun being substantially to the following effect:
Rhonda: "We cannot have bowing, reo exposed and wrong heights, you need to fix this tonight."
Pierre: "I will make sure it is fixed by tomorrow."
Ms Hussein-Smith deposed that there was no attendance by Invictus on site after the conversation. She asserted that Invictus did not rectify the work.
Ms Hussein-Smith accepted that there was no specific reference in Mr Saha's email of 21 February 2018 to a belly of 50mm dimension being apparent. She accepted that she did not measure it personally. She accepted that when she met Mr Maroun on 21 February, it was the first time that any (verbal) request was made for Invictus to fix the steps. There was a dispute about what was otherwise said, but from Ms Hussein-Smith's perspective, she came away expecting that Mr Maroun would come up with a methodology to fix the stairs.
[7]
Shuvra Saha
Shuvra Saha was a project manager for Versatile from December 2017 to July 2019. At the time he swore his first affidavit, Mr Saha had 6 and a half years of experience in the building industry. It emerged through re-examination that he had held a Bachelor of Engineering and he claimed an understanding, derived from engineering study, of the structural requirements for concrete.
Mr Saha deposed (paragraph 22) to arriving on the site on 14 February 2018, after the formwork had been removed. He observed that the front of the stairs had a big belly; or, to put the matter another way, the stairs were bowed in the middle by 50mm laterally. In evidence in chief (given with leave), he clarified that the measurements were performed by himself and the site manager. He said he saw them himself. He had previously had it measured at 50mm, but the measurement had varied at different places; ranging from 0mm-50mm-0mm.
In cross-examination, his evidence of a 50mm dimension to the bowing was challenged, but he maintained his position. Mr Saha said that another person had performed the measurements, but he had crouched down to look at them. He accepted that there was nothing in his affidavit to record any complaint or report to the SAC or ARUP about it. He did not recall whether Versatile issued a Non-Conformance Report on the matter. In re-examination, Mr Saha said that there were no "Non-Conformance" reports since they related to safety or environment issues; not perceived defects.
Further, he accepted that there were not photos of a 'big belly' attached to his affidavit. But contrary to what he had said in cross-examination, he indicated in re-examination that there were photographs [3] that depicted the belly, which, could be alternatively described as a protuberance, caused from the weight of the concrete pushing on the riser of the stairs, pushing against the formwork [4] .
He was referred to the text messages he and Mr Maroun exchanged (covering the period from November 2017 and 1 February 2018). There was no text message in which he referred to the issue. Despite this absence of evidence, he maintained that the big belly was there.
He was asked why, with the belly being present, the tiling had commenced? Mr Saha explained that the tilers had tried to adjust the tiling but, in Mr Saha's view, it became apparent that it was not feasible to do so.
On 21 February 2018 (at 8:42am) Mr Saha sent an email to Mr Maroun. It was expressed in the following terms:
"Hi Pierre,
The tiling commenced on the stairs last night.
To say it very simply, we have a big problem. Three tilers spent most of the night smashing the edges that still has chunks of concrete and trying to get these stairs cleaned. There was also exposed reo which didn't help. By the end of the night, only two treads were laid.
Cleaning aside, these stairs have a massive belly in the centre, which has now forced us to pack out every riser to ensure they are laid straight and has now also pushed out every tread making them larger. If you see the attached photos, risers are the asked nearly 50mm.
This means the stairs will take almost a week to lay, when normally it can be done in 3 days.
The tilers are rightfully going to charge me for the extra time and materials. This will unfortunately need to be reduced from your next claim.
We cannot have the same things occurring in ITB stairs. These stairs are taller and wider with more scope for error. Please review the method you are using to form up the stairs and ensure the treads are poured straight."
Mr Saha accepted that between 9 and 21 February 2018, there was no document or record of any conversation in which Versatile had reported to ARUP, or the SAC, about any deformity in the formwork, or in the stairs, or the appearance of the concrete. Nor was there any 'Non-Conformity Report' that touched upon those matters.
In his email of 21 February 2018, Mr Saha complained about the tiling behind hindered. It was put to him that the circumstance that tiling had commenced suggested that there was no issue with the quality of the stairs. He disagreed with that. He accepted that the email was the first time in which a reference was made to the reo being exposed. He accepted that Versatile's collective state of mind, at this point, was that the tilers would fix the problems and there would be a 'back charge' to Invictus and that the point of his email was to tell Invictus to watch out for its methodology. There was no thought of termination at that point.
[8]
Pierre Maroun
Pierre Maroun is the director of Invictus and swore two affidavits (8 October 2021 and 24 August 2022).
It was in his second affidavit that Mr Maroun responded to the evidence of Ms Hussein-Smith and Mr Shuvra, on the presently relevant subject of defects: the bowing on the stairs.
In relation to the Stage 4 Works, he deposed (paragraph 28) that his first contact with Shuvra was on 21 February 2018, after the pouring of the concrete. He denied that there was a 50mm bowing and said that he had measured them personally to be 20mm. He regarded the photos annexed to Mr Saha's email of 21 February as supportive of that measurement.
Under cross-examination, Mr Maroun was referred to Mr Saha's email of 21 February 2018 (Exhibit 2, formerly Exhibit RH12), which relevantly identified a "massive belly in the centre" of the stairs. Mr Maroun accepted that this was not a 'good thing', but he did not appear to accept the truth of the assertion that there was a belly; notwithstanding his evidence that he was the supervisor. He accepted that Mr Saha's reference to this was genuine.
In his first affidavit, Mr Maroun deposed to attending the airport to meet with Ms Hussein-Smith, Robert Jreij and an unidentified tiler (for Versatile) after receiving Mr Saha's email of 21 February 2018 and having a conversation substantially to the following effect:
"Me: "The tiling has already started. There's not much rectification
for me to do. What would be the simplest solution would be to
trim back the stairs. This is a twenty-minute exercise.
Rhonda: "No, I do not want to do that because of the reo exposed."
Me: "Tiler man, have you seen any reo?"
Tiler: "No, none at all."
Robert: "I am thinking maybe it can be a simple fix. Pack out the stairs
with cement to assist tiler?"
Me: "I do not think this will bond on stairs and will cause more long
term implications. Either way I will be away until 3 March 2018
on a job in regional NSW but I'll see what I can arrange.'
Rhonda: "Okay."
In his second affidavit, (at paragraph 19) he denied Ms Hussein-Smith's account of the conversation with him on 21 February 2018. In particular, he maintained that he had informed her that he had another job 'rurally' to attend to; and denied that he said he would fix issues tomorrow. He elaborated that whilst in rural NSW, on another job, he was unable to receive calls from Versatile. He considered the timeframe to be unreasonable and argued that the circumstance that Versatile's tiler had started tiling the stairs gave Invictus limited avenues to rectify issues. He further deposed that whilst he was away, he did not have reception to make calls or respond to emails.
He also deposed (at paragraph 18(c)) that when he inspected the site on 21 February 2018 the belly was no more than 20mm which, he believed could easily have been fixed had he been informed and given the opportunity to fix the stairs before the tilers commenced the tiling of the stairs.
[9]
Expert opinion evidence
The experts were Mr Anthony Grieve (Exhibit 3), Mr Patrick O'Donnell (Exhibit 4) and Mr Gordon Xue (Exhibit A).
Mr Grieve is a consultant, civil engineer and project manager with a Bachelor of Civil Engineering and a Master of Project Management (and a Bachelor of Laws). Mr Xue has a Bachelor of Construction Management and Properties, with a Master of Project Management. He is also a registered quantity surveyor. Mr O'Donnell is a quantity surveyor.
Inexplicably, no direction was made for the experts to confer to produce a joint report prior to the commencement of the hearing. Legal practitioners who act for parties to building disputes about defective works should seek a direction from the Court for experts to confer, if not for the appointment of a single expert. That is consistent with their obligation under s 56(3) of the Civil Procedure Act 2005 (NSW) given the general tendency for joint expert reports to narrow issues to be determined in a hearing. Not even a Scott Schedule was generated (per r 15.2 of the Uniform Civil Procedure Rules).
At the conclusion of day 2 of the hearing estimated to run for 3 days, the experts did confer and produce a joint report. However, unsurprisingly, given the haste in which the arrangement was made, the experts' deliberations bit into the time allocated for hearing, thereby causing some delay and disruption on day 3 of the hearing to enable them to complete their conference, reduce their conclusions to writing and enable the legal practitioners adequate time to consider their conclusions. It goes without saying that all of this could have been avoided had the legal practitioners turned their mind to the idea of a joint expert report well before the hearing at the point where the proceeding was being case managed by the Judicial Registrar. Fortunately, the conference did considerably narrow the issues regarding the extent of any defects, suggested rectifications (and costs). The point is that the lateness of a procedure which should have been attended to a reasonable period in advance of the hearing meant that the case ran for the full length of the estimated days allocated when it could have ended much sooner than it did, thereby freeing up the Court to attend to other litigation.
The effect of the experts' (joint) evidence was, as foreshadowed earlier in these reasons, that the only matter Versatile pressed to justify its purported termination, was the bowing that existed in the stairs on the Stage 4 works and the failure to comply with a direction which, it asserts, was given to Invictus to fix it. As the oral argument indicated, after close of the evidence, no attention was given to the other matters referred to in paragraphs 8A-8B and 10 of the Amended Cross-Claim.
[10]
Expert's evidence - the joint report (Exhibit 5)
After the conference between Messrs Grieve, Xue and O'Donnell, they (relevantly) partly agreed, and partly disagreed, about the belly in the stairs for Stage 4.
It was the issue of the belly in the stairs which dominated the process of the experts giving evidence jointly in Court.
The experts agreed that there was a bow in the stairs that was evident. They disagreed that the extent of the bow could be measured and, in Mr Xue's case, he appeared to disagree as to which stairs the bowing related to. They also disagreed as to the nature of the rectification.
The position, as emerged in the joint report, and as elaborated, or clarified by the experts when they gave their evidence concurrently, was as follows.
[11]
Clarifying that there was a bow ('belly')
The critical photograph was photograph 4 in Mr Xue's report (Exhibit A [5] ). Mr Grieve deployed a digital version of the photograph and discerned a straight chalk line (used by a tiler to control the setting out of the stairs) which reduced in distance. That indicated a bow, or 'belly'. Mr Xue did not dispute the existence of the belly. His main point was that he could not discern a 50mm measurement of it.
[12]
Attempt to measure the extent of the bowing
Mr Grieve ran the straight edge of a piece of paper along a different photograph (featured in Exhibit 2 [6] ) along a stair tread. He estimated that the bowing was "in the order of" 50mm. This was based on geometry of the straight line: the appearance of a curve in the straight line, as it curved towards a straight line. He was challenged on this methodology. Mr Grieve accepted that although it may not have been a methodology which appeared in any textbook, he stated that it was a method that was taught. He also stated that although he could not discount potential distortions, with that qualification in mind, and to guard against the possibility of a distortion, he had selected a stair facing downwards, rather than sideways.
Mr Xue strongly disagreed. One could not measure straight lines on the basis of photographs. There were a range of factors affecting the measurement: the angle the photo was taken, the reproduction of the photo because of issues with the printer. He thought that it could not have exceeded 50mm. That was because of his reading of the design documentation. With reference to the location of the chalk line on photo 4 (CB 179) and comparing it to the installation position of the tray tile, 20 or 30mm from the chalk line, the bow could not have been 50mm. If the belly was 50mm or more, the middle of the stair would be aligned with the front of the tray tile and at the two ends of the stair, the chalk line would have reduced to nil. That was not something depicted in photo 4 (or 3).
Mr O'Donnell's position was somewhat 'half-way': whilst you could use a piece of paper and see deviations, you could not measure it and say that it was 50mm or 30mm from that particular method.
Mr Grieve and Mr Xue disagreed about the relevance of design documentation and/or Australian standards in determining whether the bowing was a defect. The former said it was not normal, and unnecessary to refer to either source: the defect was an obvious non-compliance. Mr Xue maintained that design documentation and Australian Standards should be referenced when determining the extent of the defect.
On the premise that there was a bow with a dimension of 50mm, Mr Grieve said that this would be in breach of several tolerances for the straightness of surfaces in the Concrete Code; and would also not comply with the stair standards of the National Construction Code.
Mr Xue argued, with reference to S3600 of the Concrete Code that there was tolerance, but there was no reference within the National Construction Code. The latter dealt with the rise in the run of the stairs, not the straightness of a stair.
[13]
Doubt about the stairs?
There was another dispute as to identification. Mr Xue believed that photograph 2 in his report [7] was not one of stage 4 stairs. Mr Grieve thought that the (black) tiles evident in that photograph had been removed, but thereafter reinstalled, by the time the photograph had been taken. This was explicable through the process of connecting the stair to the slab below. One could not have a tile in the middle of the concrete. There had to be concrete and reinforcements. He surmised that during the process the tile was moved or probably protected by ply. Mr O'Donnell also thought that the photo was taken at different stages.
Mr Xue disagreed. He said that the photo showed the tile butting against the stair and that this suggested that the tiles were installed after the formwork had been stripped. By comparison, photo 1 on the same page had indicated the formwork being in place; not showing any tile. Photo 2 showed the tiles above the stairs, after formwork had been stripped. He also referred to photo 4 of his report [8] , which showed no tiles to be installed to the bottom stair: the circumstance that the worker was not standing on any tile was consistent with the removal of the tiles rather than the protection of the tiles, as Mr Grieve had suggested. Mr Xue also emphasised the whiteness of the tiles.
Mr Xue believed that these were photographs taken of the Stage 1 works. To him, this was indicated by the tiling at the bottom landing and the rounding of the stair nosing. Mr Xue contrasted photo 2 (and photo 4) of his report with what appeared in photograph 17 in Mr Grieve's report (Exhibit 3). The former indicated black tiling; the latter indicated a white tile. He reasoned that photograph 2 could not have been installed with the timberwork. He later reasoned through a comparison between photograph 2 (CB 177) and photograph 17 to his report (CB 271). The black coloured tile in the former could not have been installed during the concrete pour as the formwork would have been in place and in the way. It would have been installed after completion. By contrast the latter showed a white (terrazzo) patterned tyle. The tile seen in photo 2 (CB 179) was of the same colour as the tile shown in photo 17 (CB 271).
In response to Mr Xue's view, both Mr Grieve and Mr O'Donnell considered that the difference in colour was more likely to be explained by the use of protective covering over the tiling; and not tiling; although both experts initially disagreed about the form of the protection: Mr O'Donnell thought it might be a sheet (although he later changed that to a view that it might be plywood or hardboard); and Mr Grieve thought it was something else. Counsel for Invictus challenged both Mr Grieve and Mr O'Donnell about their suggestion of any covering being used, for protective purposes, in photo 4 of Mr Xue's report [9] . Mr O'Donnell also criticised the logic of Mr Xue's comparison between the white coloured tiles in photos 2 and 17, given that he had proceeded on the assumption that all of the stairs for stage 14, as photographed, were black. He had not turned his mind to the colour of the tiles at the bottom of the stairs.
[14]
Rectification
On the question of rectification, during the process of concurrent evidence, Mr Xue had altered his position from that which had been expressed in his individual written report. Because of the packing out of the stair that had been performed, it was not possible to cut back the bow with a saw. To do so would have a detrimental effect on the cover of reinforcement for the stairs. The packing out that had occurred was demonstrated in photograph 5 of Mr Xue's report [10] . It involved building up, in a structural way, the front of the treat, to regularise and straighten the bow.
But under questioning from Invictus' Counsel, Mr Xue said that on the assumption that the bow was less than 50mm, the cutting back method would have been appropriate. If it was less than 50mm, the reinforcement would not have been exposed. But with leave being granted to Versatile's Senior Counsel, he acknowledged that he was not qualified to opine on whether reinforcement cover could be maintained without compromising the reinforcement structure.
[15]
Versatile's submissions
Versatile relied on the oral argument of its Senior Counsel. It submitted that the bowing in the stairs for the stage 4 works was either defective or was otherwise not in conformity with the requirements of the contract (or installed or constructed in a proper and workmanlike manner). Whether or not any particular Australian standard was identified as being breached, the contract documents required straightness. The Court should also accept the evidence of Mr Saha, and Ms Hussein-Smith.
The experts also agreed that there was bowing; albeit that there was dispute about the measurement of it and some dispute about appropriate rectification. But no one suggested that nothing needed to be done to repair the bowing. To the extent that there was dispute on these matters, between the experts, the Court would prefer Mr Grieve's evidence.
In light of the experts' conclusions, Mr Corsaro SC did not submit that there were any other non-compliances or defects which justified its termination of the subcontract.
[16]
Invictus' submissions
Invictus' submissions were partly in writing (MFI 1) and partly comprised in its Counsel's oral argument. Mr Tiliakos' written submissions were, however, prepared before the experts' joint conference and concurrent evidence; which, as indicated, considerably narrowed to a focus on the bowing. Given, also the position of Versatile not to make submissions as to the other defects or non-compliances identified in the Cross-Claim, it is unnecessary to consider Mr Tiliakos' points, in his written submissions, about those other matters.
As to the complaint about a big 50mm belly being found, whilst the experts agreed that there was bowing, there was a contest about the extent of the bowing. If, as Mr Xue appeared to suggest, it was less than what would be permitted, it would not amount to a defect. But alternatively, if it was, the defect, or non-conformity (with the contract or proper workmanship standards), was not sufficiently 'substantial' to justify exercise of the right to termination, either under the express right in cl 9 or generally, in common law.
Mr Tiliakos submitted that the Court should not accept Mr Grieve's estimate but should prefer Mr Xue's evidence. Mr Grieve's methodology was not scientific or capable of being supported in any objective fashion, such as an Australian Standard or industry standard. Further, he emphasised that Mr Saha had not measured the extent of the bowing; and nor had Ms Hussein-Smith. Mr Saha's reference to a measurement of 50mm in his email of 21 February 2018 was not directed to the extent of any bowing.
It followed that Versatile was not entitled to terminate the subcontract on the basis of cl 9.1(c) either because Invictus had not performed defective work or, alternatively, such defective work was rectified within a reasonable time of being notified of it by Versatile.
[17]
Credit of lay witnesses
I formed the impression that Mr Maroun was wedded to beliefs which to some extent did not align with the facts and was self-conscious of the effect of his evidence on Invictus' position. This was demonstrated partly by evidence about matters which, by reason of the later expert report, became otherwise immaterial. He refused to accept, what I regarded as patently obvious, that there was a dip in the concrete ramp for the Stage 1B works. Some of the answers he gave when confronted with the Non-Conformance reports were implausible: if accepted, they suggested that he had turned a blind eye to problems in the belief that someone else (such a SAC) would raise any concerns. I regarded his evidence as being inconsistent on one prominent occasion where he appeared to accept virtually all of Ms Hussein-Smith's criticisms of the Stage 4 work only to turn around and say that he had only accepted that she had made criticisms; denying that he should be taken to have accepted those criticisms. In that instance, he was conscious that the cross-examiner was pointing out the inconsistency between his admissions of the problems in his evidence and his denials in his second affidavit. These matters strained credulity and I am cautious about accepting his evidence unless that is corroborated, consistent with objective facts and the general probabilities.
I formed a favourable impression of Mr Saha. Subject to a couple of exceptions, in which he strained to provide explanations, his answers were crisp even if they were sometimes not favourable to Versatile's position (whose employ he had left prior to the hearing). He did not seek to embellish.
Ms Hussein-Smith's position was curious. She appeared confident at times, but struck me as not quite having the grasp of detailed recollection consistent with that presentation, and her position at the time; which indicated a want of preparation to give evidence. I make allowance for the passage of time since the subject events, but she was in no different position to the other lay witnesses in that respect. Senior Counsel complained at one point that she appeared to go along with propositions raised of her during cross-examination, and, as I understood him to submit, there was a difference between making an admission and agreeing to accept an assumption. I felt that Ms Hussein-Smith was more than capable of drawing the distinction where it applied. But it struck me as surprising that she was only willing to accept matters as assumptions rather than confirming the veracity of them.
All of the lay witnesses were giving evidence about events occurring well over 4 years ago. With one qualification - what was said on 21 February 2019 - not much turned upon disputed versions of oral conversations; given the substantial documentary base of evidence. It is that base which supplies the surest foundation for my findings; along with my assessment of the logic and inherent probabilities following the events, or circumstances, as proven by those documents.
[18]
Views on the experts
The experts were all well qualified, but on what turned out to be a critical question - the extent of the bowing that all experts agreed was apparent - I was inclined to prefer the view of Mr Grieve to Mr Xue. In concluding so, I accept that there was force in Mr Xue's view about a lack of what might be thought to be objective, and perhaps scientific rigour, in the measurement that Mr Grieve performed, with reference to standards. Nevertheless, I accept Mr Grieve's evidence, borne of his immense experience, in terms of longevity and his expertise and training as an engineer about the extent of the bowing and what was appropriate for its rectification. I was not convinced that, given the risks of damage identified by Mr Xue's evidence, there was any better method. Coincidentally, Mr Grieve's evidence coincided with the measurement that Mr Saha and others in the Versatile team had performed.
[19]
Findings
I find that there was a bow in the stair in stage 4. That was accepted by all the experts and, if perhaps grudgingly, also Mr Maroun.
I also find, on the probabilities, that it was in the order of 50mm. In this respect, I rely heavily upon the evidence of Mr Saha, who, I thought was unshaken in his evidence of having been privy to seeing that measurement. I accept that, from his study as an engineer, Mr Saha was capable of appreciating the measurement performed by the person at the site. I prefer his evidence to Mr Maroun.
That aspect of the dimension was also the subject of some evidence from Ms Hussein-Smith. She obviously thought that it was of a dimension of 50mm, given her reference to it at paragraph 39 of her affidavit, and I infer that Mr Saha was the source of that information. I accept further that this was not a case of mistaken identification of the stairs in which the bow was observed: there was no lack of conviction in Mr Saha (or Ms Hussein-Smith) as to the site where the bowing was seen.
I also place some weight upon the view of Mr Grieve. Whether or not the somewhat rough and ready measure he had deployed had featured in textbooks, I accept his evidence that it conformed with what he had been taught. I prefer his view to Mr Xue. Mr Xue appeared to alter his original view that he could not be satisfied that there was any bowing at all. Both Mr Grieve and, for that matter (although to a far lesser extent), Mr Saha, had engineering knowledge that qualified them to opine upon the dimensions. In forming these views, I also take into account Mr O'Donnell's opinion about Mr Grieve's methodology. I took Mr O'Donnell to be really saying that although Mr Grieve's methodology may provide guidance, it could not be conclusive. I accept that reservation.
I further find that the existence and extent of the bowing was defective. To my mind, it did not matter whether proof was furnished about a particular Australian Standard or provision of the Concrete Code, or that there was a relative absence of documented complaints to third parties. I accept Mr Saha's evidence that it was conspicuous, so much so that it featured in his email of 21February, and carried practical risk to the structural integrity of the stair unless rectified. The extent of the bowing prompted Ms Hussein-Smith to discuss it with Mr Maroun at the meeting after the 21 February 2018 email had been sent to Mr Maroun. That discussion relevantly included how the problem might be rectified. None of the experts suggested that it could pass without rectification. I also accept Versatile's' submission that it was not compliant with the requirement of the subcontract.
As to the rectification of this defect, I prefer Mr Grieve's view that the appropriate rectification was the packing out of the stair, which he consistently espoused. Mr Xue appeared to fluctuate in his view as to whether an alternative method might have been to cut back the bowing with a saw. In view of the structural risks to the integrity of the stairs, this is an instance whereby Mr Grieve's engineering training inclines to place greater weight upon his opinion.
[20]
The pleading of the alleged breach
In its Amended Cross-Claim, Versatile alleged that Invictus failed to comply with directions as follows:
1. a direction that it follow the recommendations of the ARUP site inspection report, on 8 February 2018 (the '8 February 2018 direction');
2. a direction that it follow the recommendations of the ARUP site inspection report, on 21 February 2018 (the '21 February 2018 direction');
3. a direction to rectify the Stage 4 works and delay on 23 February 2018 (the '23 February 2018 direction').
However, in the circumstances that I explained when identifying Versatile's case, as finally argued, all that Versatile ultimately relied upon, to justify its decision to terminate, was the 23 February 2018 direction, to the extent that it concerned the bowing. That said, Versatile submitted that the 21 February 2018 direction was a relevant contextual circumstance.
[21]
Ms Hussein-Smith's evidence
On 23 February 2018 (at 4:27am), Ms Hussein-Smith sent an email to Mr Maroun. It was as follows:
"Pierre
It was discussed on Wednesday this methodology to be undertaken for the rectification of the stairs and we even marked out the stairs for you, this was discussed with Robbie and myself and you even advised of what product you would use.
You cannot cut the stairs back nor will we accept that methodology - NO EXPOSED RIO IS ACCEPTABLE.
We are delayed it should have been an easy process and the fact that there was a no show is not good enough.
You have till tonight to fix these stairs if there not done it will be fixed on your behalf and unfortunately payments will be held.
Please confirm that these works will be completed today…
Once again we have had to cancel our works .."
Ms Hussein-Smith was cross-examined on this email. She agreed it was the first time that there was written request to fix issues associated with bowing, exposed reo and heights. Asked whether she considered that it was reasonable to expect the issues to be fixed within a night, Ms Hussein-Smith said she believed that had to be seen in the context of issues raised in Mr Saha's email of 21 February.
After sending her email to Mr Maroun on 23 February 2018, she said she tried to contact him, but there was no answer. She accepted that there was no phone record to substantiate that assertion. She deposed in her affidavit to receiving no reply by, or on behalf of, Invictus, to this email, or Mr Saha's email of 21 February.
In her cross-examination, in the course of being referred to Mr Saha's email of 21 February 2018, it was put to Ms Hussein-Smith that it was no big issue even if there was a problem with the stairs. Ms Hussein-Smith maintained that it was.
Ms Hussein-Smith deposed that by about 23 February, she was concerned that Invictus would not return to the project. She believed that Mr Maroun was not following directions and meeting deadlines. She explained that as it was not possible to hand over the stairs for Stage 4, Versatile needed to erect hoarding around the stairs; and that this had impeded Border Force personnel.
She decided to instruct Mr Saha to inform Invictus that Versatile was terminating the subcontract. She indicated in her evidence at the hearing that she had conferred with Mr Saha about the content of the termination notice.
The content of the termination notice was as follows:
"Hi Pierre,
Following on from Rhonda's email below. No works were done by Invictus Developments Pty Ltd for the rectification of the stairs within the timeframe stated below.
This has resulted in significant project delays and cost to Versatile Fitout Pty Ltd.
Therefore, under the following clauses in Subcontract Agreement No# S000498;
1. 3.5 (b)(d) - "Determination of payments". We have determined due to the delays caused to other trades and our programme in general, no further payments will be made to Invictus Developments Pty Ltd from Versatile Fitout Pty Ltd
2. 5.1 - "Failure to meet the construction programme". In this case, completing the concreting of the stairs to a suitable standard for tiling to continue. This has caused significant delays.
3.9.1 (c) - "Fails to use the materials or standard of workmanship required by this subcontract". In this case poor workmanship.
Versatile Fitout Pty Ltd has, on the aforementioned grounds of the subcontract, determined the subcontract is hereby terminated.
Works completed are still subject to defects liability (12 months from the date of project practical completion) and warranty periods (12 months from the end of defects liability period).
Please consider this your termination notification in writing."
She accepted that the reasons for termination, as set out in this email were the only reasons for the decision to terminate. This email stated that following Ms Hussein-Smith's email (23 February) no works were done by Invictus for the rectification of the stairs within the timeframe stated.
[22]
Mr Saha's evidence
Mr Saha said that he was copied into Ms Hussein-Smith's email to Mr Maroun on 23 February 2018, but confirmed he was not at the meeting that she had referred to, which had occurred on 21 February. He acknowledged that this was the first time Versatile had made written requirement for Invictus to fix the stairs. He agreed that about 5 days were given to Invictus to fix the issues. He also agreed that SAC had not been notified of the email (so far as he was aware).
Mr Saha had deposed in his affidavit (paragraph 30) that after he had sent his email on 21 February, and Mr Maroun's omission to return to the site or contact him again after sending that email, he formed the view that Versatile could not trust Invictus as a subcontractor to comply with the subcontract, and deposed to recommending to Ms Hussein-Smith that the subcontract be terminated. He further deposed (paragraph 31) to the latter instructing him to terminate by email.
After sending the termination notice, Mr Saha and Mr Maroun exchanged correspondence with each other on 2 and 3 March 2018. In the first of the emails, Mr Maroun's email of 2 March 2018 (at 8:23am) remonstrated with the act of termination and finished off his message by asking Mr Saha why the stairs had not been checked before the tiling had commenced. In his email (6:16pm), Mr Saha referred to conversations about what could be done to fix the issues after the 'rectification notice'. He alluded to Mr Maroun having proposed a solution involving 'cut(ting) back where it was bowed' but for Versatile, that was "not an option" as it would have led to exposed reo. He indicated that Versatile could not wait for an "unsolicited" time for Invictus to return to rectify its "poor workmanship", generally characterised the results on the stairs as being "poor" and indicated that these matters justified the decision to terminate the subcontract. In Mr Maroun's email (6:34pm) in return, Mr Maroun complained. The gist of his message was that he should have been informed of rectification work that needed to be done.
[23]
Mr Maroun's evidence
Mr Maroun deposed in his affidavit to receiving Ms Hussein-Smith's email of 23 February, but (as he had explained at paragraph 28) he was away on another job in regional NSW and deposed to not having access to his emails.
Mr Maroun accepted that he understood that at the time Invictus was requested to perform the work for Stage 4, Versatile was already behind the stage schedule and wanted Invictus to perform that stage as quickly as possible. He also accepted that completion of the stairway for Stage 4 was important itself to enable that Stage to be completed and therefore he treated it as being very important. He was conscious that Versatile was pressing him to complete the job.
On the implications of the defects in the construction of the stairs, Mr Maroun accepted that the stairs were important. He said he was unsure if the need to rectify any defects would result in delay.
Mr Maroun was referred to the email he received from Mr Saha on 21 February 2018 in which complaint was made about defective work regarding the stairs. Following his receipt of the email, Mr Maroun said that he spoke to Ms Hussein-Smith. He accepted that she had told him that she was unhappy with the quality of the work, but doubted whether she had asserted that the work had not complied with the design or code. He confirmed that she had raised concern about the 50mm bow in the stairs and that this could lead to incorrect heights and reinforcement. He also confirmed that she had told him to "fix this" tonight.
Mr Maroun said that he understood that he had received an instruction to assist the tiler (but not the stairs), but recalled explaining or indicating to Ms Hussein-Smith that he would try to 'assist' Versatile. He believed that any issues that there were with the stairs could have been fixed by him and he said he did not agree with Ms Hussein-Smith's proposed method. He complained that Versatile did not give him the opportunity. Whilst he accepted that she issued an instruction under the contract he believed he had 10 days to implement it.
Mr Maroun said he that he travelled to Sofala [11] arriving there, late on 22 February, and that he had taken his work crew with him, to do a job for a friend of his, until 3 March. Although he took his phone, he said that there was no reception where he was. He later said that it was only later, after driving into a town, that he was able to receive an email. He confirmed that in his absence, there was no one to look after the work at Sydney Airport. It was put to Mr Maroun, but he denied, that he was just making up his evidence about not receiving his emails.
Under cross-examination, Mr Maroun was challenged on his evidence about his understanding of Ms Hussein-Smith's instruction. It was insinuated that if all that it amounted to was a direction that he assist the tiler, then Ms Hussein-Smith's email on 23 February (which referred only to the rectification of stairs and no reference to assistance to the tilers) was inexplicable.
[24]
Versatile's submissions
Mr Corsaro SC accepted that Versatile had to establish, at least under the contractual regime, the matter in cl 9.1(a). This it had done. Versatile submitted that on 23 February, Ms Hussein-Smith had given a direction to Invictus to "fix the(se) stairs", being an obvious reference to Stage 4 and to do so that night. The context for this direction was partly Mr Saha's email of 21 February and the discussion between Ms Hussein-Smith, Mr Kreij and Mr Maroun which subsequently occurred on 21 February. Mr Saha's email had emphasised the problem with bowing: that there was a "massive belly in the centre" which had "forced us to pack out every riser to ensure they are laid straight and has now pushed out every tread making them larger. If you see the attached photos, risers are the asked nearly 50mm".
If Versatile's proposed construction of cl 9.1(a) appeared strict, or even harsh, it was to be recalled that there were other provisions which could protect Invictus' position. It could invoke the dispute resolution procedure (cl 15), claim variations or extension of time to perform.
[25]
Invictus' submissions
Invictus submitted that Ms Hussein-Smith's 23 February 2018 direction was invalid: there were no existing defects in actual need of rectification. That submission was premised on a finding that the bowing did not constitute a defect.
Alternatively, it submitted that to the extent that it incorporated reference to the content of the 21 February 2018 email and what was said about bowing, the references were vague: a problem (bowing) was identified, but no methodology was specified as to what to do about it. It was unclear what, if anything, was directed in the 21 February 2018 email; so that did not assist Versatile's reliance upon it.
Invictus submitted that the Court should find that it could not accept any estimate of the extent of the bowing, or at least Mr Grieve's estimate. The Court would reject Mr Grieve's estimate, for the reasons referred to earlier. Nor could Versatile characterise it as an obvious defect or non-compliance with contractual requirements or standards of workmanship. In those circumstances, for Ms Hussein-Smith to direct that the bowing be fixed - assuming that was the proper construction of her direction - was inherently unreasonable. In this, Mr Tiliakos submitted that cl 9.1(a) should be construed as only a reference to a 'reasonable' direction. He argued that, when read with cl 8 (and cl 8.3 in particular), if the subject matter of a direction under cl 9.1 was rectification of a defect, it was necessary for the direction to identify the defect and state a date by which the rectification was to be completed. I understood Counsel to submit that the direction impliedly needed to also stipulate how the bowing was to be fixed, in terms of methodology. Counsel submitted that the evidence was unclear as to what Ms Hussein-Smith proposed in this regard, whether in the meeting on 21 February or the email of 23 February. As to the meeting on 21 February, Counsel pointed out that Versatile did not call the other person, Richard Kreij, who Ms Hussein-Smith identified as attending the meeting, to clarify what was discussed.
In his written submission, Counsel had also submitted that the direction was issued in bad faith: Versatile knew that it could not be physically complied with, within the time stipulated. In this regard, it was submitted that Mr Maroun's evidence should be accepted when he said that the parties had agreed to reconvene after his return from regional travel to progress any alleged defective work. Versatile should be estopped from resiling from that understanding.
Separately, Invictus submitted, in writing, that Versatile was not entitled to terminate the subcontract on the basis of any failure to comply with Versatile direction(s) where that particular breach was not referred to in the termination notice on 1 March.
In oral argument, Invictus submitted, in the alternative (if it was found that there was a breach of cl 9.1(a)) that the express right to terminate was not enlivened since, for the purposes of cl 9.3(b), Invictus was not in "substantial" breach of the obligation. This was evident from the emails of 21 and 23 February 2018, in which Versatile had not foreshadowed termination but, to the contrary, had raised a far less severe consequence, being the back charging to Invictus after Versatile attended to rectify the problem. As I understood Invictus' Counsel to submit, it was relevant to the matter of the substantiality of the breach that (assuming the Court accepted his evidence) Mr Maroun told Ms Hussein-Smith that he was going away; and that they had left the question of how to rectify stairs in an uncertain state. It was also relevant that the relevant context extended well beyond Stage 4 to the progress of the whole construction program more generally. Although the instruction to proceed with Stage 4 was only received in August 2017, and although anticipated to be completed by 5 December 2017, for reasons not within Invictus' control, the works could not progress until approximately 2 months later.
Invictus also argued that the same facts were an answer to Versatile's claim to terminate through the exercise of its common law rights.
[26]
Versatile's submissions in reply
Versatile argued that Invictus' recourse to cl 8, as a matter relevant to the construction of cl 9, was beside the point. No Defects Liability period commenced unless practical completion (of the 'separable part') had occurred. Clause 6 had to be complied with, but no notice had been given by Invictus as that provision stipulated; and even if such notice had been given, the presence of the bowing would prevent practical completion from having occurred. Clause 8.4 was irrelevant where the Defects Liability Period had not yet commenced.
Versatile also argued that cl 9.1(a) could not be construed to import a requirement of reasonableness in the content of the direction. As it happened, this clause already did provide for reasonableness, but only as to the aspect of the time for compliance with the direction (and then only where the time was not stipulated). The context for the provision explained why this was so. It may not be obvious to a contractor in Versatile's position as to what was reasonable, according to Invictus' requirements. But Invictus was not bereft of protection: it could raise a variation, even under sufferance, if it did work which Mr Maroun did not believe in. At any rate, Senior Counsel argued that Invictus' construction of cl 9.1(a) would emasculate the right given to Versatile.
Versatile argued that the direction on 23 February was not vague. It was to fix the stairs. It should be found that Mr Maroun had a different view from Ms Hussein-Smith as to the appropriate methodology to doing so. Mr Corsaro SC forcefully argued that what it could not do was what, he submitted, Mr Maroun had done: to choose to ignore the direction and go on to work on another job or worse, refrain from complying for personal reasons; despite his awareness of time pressures on Versatile on the project overall.
[27]
Consideration
I will address first the constructional argument regarding cl 9.1(a). There was no express definition or delineation in the subcontract about what constituted a direction, or the permissible ambit of a direction, for the purposes of that provision.
In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, French CJ, Nettle and Gordon JJ said (at [47]-[50) [12] that:
"47. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
48. Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning..
49. However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
50. Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations."
I do not find persuasive the submission that, for the purposes of cl 9.1(a), there should be read in the word "reasonable" as a qualifier of the concept of direction. As is plainly indicated in the provision itself, the word 'reasonable' already appeared as a descriptor of time for the performance of a direction, where that had not been stipulated by the contractor.
It is fair to say that any direction could not be entirely unlimited in relation to subject matter. It seems to me obvious that generally it relates to the performance of Invictus' obligations consistent with the objects to be secured by the contract. The various matters in cl 9 speak of time and progress in the works, the standard of workmanship and cross-references Invictus' "obligations".
I do not consider that cl 8 generally, or clause 8.3 and 8.4 in particular, assists Invictus with its constructional argument about the requirements for a direction, for the purposes of cl 9.1(a), with its specification or requirement for identification of a particular defect (cl 8.3). Clause 8 is directed to the period covered by the Defects Liability Period. The operation of the subcontract had not reached that stage by 23 February 2018, generally, of by reference to the completion of Stage 4, in particular.
Other provisions in the subcontract have greater salience. These include the provisions made for variations (cl 7) and for dispute resolution (cl 15). I accept Versatile's submission that if there was some insuperable obstacle in the way of Invictus complying with a direction, these other provisions conferred some protection upon Invictus.
I accept that there is a requirement of some clarity, but do not accept that a contractor is to be taken as needing to supply specificity. An inherent feature, or perhaps underlying assumption, of the subcontract is the subcontractor's special skills and knowledge base in identifying a problem and devising solutions. In interpreting a direction, the subcontractor will be doing so in the light of the circumstances known to it at the time of the direction. A problem with Invictus' constructional argument, that the word 'reasonable', if applied to cl 9.1 in any further way, is that it would be a descriptive term of indeterminate reference.
I am unable to accept that a direction in cl 9.1 was diluted, or as Mr Corsaro SC described it, 'emasculated', through a process of construction, or implication, that it be 'reasonable'.
Applying these views, the problem of bowing had been pointed out to Invictus in the 21 February 2018 email and the subsequent discussion between Ms Hussein-Smith and Mr Maroun that day. This email not only referred to the existence of bowing, but also had identified certain consequences from it, as they had appeared to that date. The ("massive") bowing may not have been the only problem, but it was a "big" problem. Further, that subsequent discussion included reference to the methodology for dealing with the problem of the bowing. It is clear that Mr Maroun had proposed, and obviously believed, that the solution was to cut back the stairs. It is equally clear that Ms Hussein-Smith indicated that this proposed methodology was unacceptable to Versatile.
The matters in the last paragraph were contextual matters relevant to the interpretation of a reasonable subcontractor in Invictus' position (and circumstances) upon receipt of Ms Hussein-Smith's email of 23 February.
The direction in Ms Hussein-Smith's email of 23 February to "fix these stairs" would reasonably have been understood by a subcontractor in Invictus' position as a direction to fix, amongst other things, the bowing problem that had been clearly identified. More than that, it amounted to a direction to fix that problem in a way that inhibited Invictus from repairing it in the way Mr Maroun had preferred and had suggested. It was not incumbent upon Invictus to spell out precisely how the problem should be rectified.
It was also open to Ms Hussein-Smith to specify the time that she did. Although reading the direction in isolation, might arguably have given a narrow period of time (subject to what I will shortly say), It was a period in which the contractor was under time pressure (a matter which Mr Maroun acknowledged). The earlier exchange on 21 February, according to Mr Maroun in his affidavit, contained an expression of confidence by Mr Maroun that the problem could be fixed reasonably promptly. To the extent, if at all, Versatile personnel indicated a contrary methodology, Mr Maroun said nothing to suggest that doing repair work in the way that Versatile favoured would take a significant period of time.
I accept Versatile's submission that in view of the way Invictus' put its case, that the problem was a quick fix, it was inconsistent with that position to contend that the time requirement in Ms Hussein-Smith's email was unreasonably narrow.
It should also be regarded as being implicit from earlier findings that I reject Invictus' submission that the requirement was invalid on the basis that there was no defect that could give rise to the issue of a direction.
I find that the direction made by Ms Hussein-Smith in her email to Mr Maroun on 23 February 2018 was valid.
It is, I think, common ground, that on the basis of the last finding, it is but a short step to make the further finding that Ms Hussein-Smith's direction was not complied with.
It is yet another short step to find, as I do, that by 1 March 2018, Ms Hussein-Smith's direction could not be remedied since the time for its performance had come and gone.
[28]
Versatile's submissions
Versatile submitted that the rights for termination under cl 9 did not exclude the right to terminate in common law.
But if Versatile was not entitled to terminate under cl 9, it could rely upon its right to terminate in the common law. In this regard, Mr Corsaro SC cited the authority of the High Court's decision in Koompahtoo Local Aboriginal Land Council v Sanpine (2007) 233 CLR 115, where, at [47]-[52], the plurality noted two bases for termination in common law. He argued that cl 9.1(a) was an 'essential term' which had been breached: it was a term which a promisee, as recipient of professional services, would consider essential. If that is right, then it was unnecessary to consider whether or not substantial performance had been rendered of an intermediate term. It was no answer to Invictus to say that he had disagreed with what Ms Hussein-Smith had proposed, or perhaps insisted, as the methodology to fix the issues, and allowed the problem to fester pending further discussion: meaning that there was a 'temporary disconformity' to be addressed. Citing authority [13] , Mr Corsaro SC argued that although such an argument might be relevant to mitigation of damages, it was not a defence to breach.
But alternatively, if the term was intermediate, then the problem with the bowing was sufficiently serious as to warrant termination for non-compliance with the direction to rectify it, having regard to Mr Maroun's failure to attend. It did not matter that on 21 February 2018, Mr Saha had proposed another method of dealing with the issue, involving Versatile 'back charging' Invictus.
[29]
Invictus' submissions
In the absence of express definition, Invictus submitted that the expression 'substantial breach' under cl 9 had to take its meaning in the common law. Invictus' Counsel drew the Court's attention to certain Victorian decisions, of the Supreme Court (Ilija Stojanovski v Australian Dream Homes Pty Ltd [2015] VSC 404) and that State's Civil and Administrative Tribunal (Serong v Dependable Developments Pty Ltd [2009] VCAT 760).
In his closing oral argument, Counsel for Invictus argued that, on the premises that there was a non-compliance with a direction to fix the bowing within the stipulated time, it was not so significant as to justify termination under cl 9.3(b) (or in common law). Counsel referred to Versatile's conduct, manifested principally in Mr Saha's email of 21 February, but also Ms Hussein-Smith's email of 23 February 2018; neither email of which gave a hint of any contemplation of termination but, to the contrary, flagged another sanction for non-compliance - being the withholding of payment to Invictus (or 'back charging'). Reference was made to cl 8.5, which spoke about the latter method. Counsel also repeated his criticisms as to the vagueness of the requirement.
Further, Invictus submitted that Versatile terminated the subcontract only by reason of Invictus' alleged breach of the subcontract; not by reason of any alleged repudiation by Invictus. It submitted that this reflected the position that Invictus had not repudiated the subcontract in the circumstances.
Thus, it was submitted, Versatile unlawfully terminated the contract.
[30]
Consideration
Following on from earlier findings that (a) Ms Hussein-Smith's direction on 23 February 2018 was valid (b) Versatile did not comply with it, and (c) the direction could no longer be complied with, the next question is the consequence of that lack of compliance to Versatile's express right to terminate under cl 9.3 of the subcontract; or under the common law.
For the purpose of cl 9.3, the question was whether Invictus was in substantial breach of the obligation to comply with the direction.
Amid the passage from Koompahtoo Local Aboriginal Land Council v Sanpine (2007) 233 CLR 115 referred to above, the plurality addressed the issue about the 'essentiality' of a term of a contract as follows:
"47...where the obligation with which there has been failure to comply has been agreed by the contracting parties to be essential. Such an obligation is sometimes described as a condition. In Australian law, a well-known exposition was that of Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd .. who, in comparing conditions and warranties, employed language reflected in many statutory provisions. The widespread statutory adoption of the distinction between conditions and warranties, or essential and inessential terms, is an established part of the background against which the common law has developed. The Chief Justice of New South Wales said (references omitted):
"In considering the legal consequences flowing from a breach of contract, it is necessary to remember that (i) the breach may extend to all or to some only of the promises of the defaulting party, (ii) the promises broken may be important or unimportant, (iii) the breach of any particular promise may be substantial or trivial, (iv) the breach may occur or be discovered (a) when the innocent party has not yet performed any or some of the promises on his part, or after he has performed them all, and (b) when the innocent party has received no performance from the defaulting party, or has received performance in whole or in part; and to remember also that the resultant rights of the innocent party and the nature of the remedies available to him may depend upon some or all of these matters.
The nature of the promise broken is one of the most important of the matters. If it is a condition that is broken, ie, an essential promise, the innocent party, when he becomes aware of the breach, has ordinarily the right at his option either to treat himself as discharged from the contract and to recover damages for loss of the contract, or else to keep the contract on foot and recover damages for the particular breach. If it is a warranty that is broken, ie, a non-essential promise, only the latter alternative is available to the innocent party: in that case he cannot of course obtain damages for loss of the contract.
The question whether a term in a contract is a condition or a warranty, ie, an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor. If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight. If he contracted in reliance upon a substantial performance of the promise, any substantial breach will ordinarily justify a discharge. In some cases it is expressly provided that a particular promise is essential to the contract, eg, by a stipulation that it is the basis or of the essence of the contract; but in the absence of express provision the question is one of construction for the Court, when once the terms of contract have been ascertained. In general, Courts of common law have been more ready than Courts of Equity to regard promises as essential. This is in part due to the fact that Courts of common law are in the main concerned with ordinary commercial contracts in which it is common to find provisions which are intended to be strictly and literally performed. It is now provided by s 13 of the Conveyancing Act, 1919 (taken from the Judicature Act, 1873, 36 and 37 Victoria, Chap 66, s 25(7)) that stipulations in contracts, as to time or otherwise, which would not before the commencement of the Act have been deemed to be or to have become of the essence of such contracts in a Court of Equity shall receive in all Courts the same construction and effect as they would have heretofore received in such Court. This serves to make equitable liberality of construction supersede common law strictness, so far as is consistent with apparent intention, in fields where equity and common law overlap; but it does not affect the principle that effect must be given to the apparent intention of the parties as disclosed in the contract."
48. What Jordan CJ said as to substantial performance, and substantial breach, is now to be read in the light of later developments in the law. What is of immediate significance is his reference to the question he was addressing as one of construction of the contract. It is the common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract and (in a case such as the present) the commercial purpose it served, that determines whether a term is "essential", so that any breach will justify termination".
On the matter of intermediate terms, the plurality in Koompahtoo said:
"49. The second relevant circumstance is where there has been a sufficiently serious breach of a non-essential term. In Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, the English Court of Appeal was concerned with a stipulation as to seaworthiness in a charterparty. Breaches of such a stipulation could vary widely in importance. They could be trivial or serious. The Court of Appeal held that to the accepted distinction between "conditions" and "warranties", that is, between stipulations that were in their nature essential and others, there must be added a distinction, operative within the class of non-essential obligations, between breaches that are significantly serious to justify termination and other breaches. This was a recognition that, although as a matter of construction of a contract it may not be the case that any breach of a given term will entitle the other party to terminate, some breaches of such a term may do so. Diplock LJ said that the question whether a breach by one party relieves the other of further performance of his obligations cannot always be answered by treating a contractual undertaking as either a "condition" or a "warranty". Of some stipulations "all that can be predicated is that some breaches will and others will not give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend upon the nature of the event to which the breach gives rise".
50. In this way Diplock LJ set the policy of the law favouring certainty of outcome through the classification of terms as conditions against that which encourages contractual performance and favours restriction of the right to terminate to cases where breach occasions serious prejudice. As it is put in the eleventh edition of Treitel:
"[T]he policy of leaning in favour of classifying stipulations as intermediate terms can be said to promote the interests of justice by preventing the injured party from rescinding on grounds that are technical or unmeritorious."
Perhaps the adoption of other taxonomies for contractual stipulations might achieve similar outcomes. However, Hongkong Fir was decided in 1961 and has long since passed into the mainstream law of contract as understood and practised in Australia."
The onus of proving a consequential right to terminate under a term of a contract rests on the promisee: J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116 at 126.
[31]
Essential term?
In my view, it is not correct to say that cl 9.1(a) is an essential term whose breach, of whatever kind, would generate a contractual right to terminate. In other words, mere non-compliance, per se, with a direction given by Versatile's Representative is not enough. It would be inherently surprising that non-compliance with any direction, however serious or trivial, could lay the foundation for a right to terminate even if it related to the objects of the contract. That could generate unreasonable results. The context, relevantly the inclusion of cl 9.3(b) suggests that it is an intermediate term, of the Hongkong Fir Shipping variety.
[32]
Breach of intermediate term?
I am not persuaded in the circumstances that breach of the requirement to comply with the direction on 23 February 2018 was sufficiently serious to generate a right to terminate. I accept Invictus' submission that in the email that featured the direction Versatile relied upon, following on from and consistent with Mr Saha's email of 21 February 2018, Versatile had not emphasised the seriousness of Invictus' conduct. It had, to the contrary, signalled a different sanction, of withholding payment from or 'back charging' Invictus. This was after offering salutary warning "we cannot have the same things occurring in ITB stairs"; which implicitly evinced Versatile's continued desire to work with Invictus (to that point). Overall, the email on 21 February conveyed both Versatile's displeasure and at the same time, administered a rebuke to Invictus. But Ms Hussein-Smith accepted that by the completion of her meeting with Mr Maroun on 21 February, she was awaiting a further proposal from Mr Maroun as to the methodology he might deploy to fix the stairs: all that she emphasised was what she did not want.
I also accept the force of the submission that part of the assessment of the seriousness of the breach involves looking at the contract as a whole. Invictus had performed earlier stages. Although during the hearing, for a time (that is before the experts had conferred), Versatile had complained about some features of the work on Stage 1, ultimately, that complaint fell away. Versatile had paid Invictus for its work on those earlier stages. Relevant also is that the commencement of stage 4 had been delayed for reasons other than anything Invictus had done. Whilst it may be accepted that Mr Maroun was conscious of certain time pressures upon Versatile, given the impact of the work Versatile had to do 'downstream' of the stairs in a general sense, on the evidence before the Court, I do not consider that any suggestion was made that completion of the work within the narrow time stipulation made by Ms Hussein-Smith actually was "critical". Although Mr Corsaro SC sought to obtain an admission from Mr Maroun to that effect, it was not explained by Ms Hussein-Smith to Mr Maroun, and Mr Maroun did not admit that that which made it 'critical', in terms of it having to be fixed "tonight" [14] .
In a general sense, Versatile may have become disenchanted with the quality of workmanship, or delay, but Versatile ultimately hitched its case on a right to termination for non-compliance under cl 9.1(a) - not any of cl 9.1(b) or (c) of the subcontract.
It may be accepted that Mr Maroun adopted a less than responsible position in leaving the job and going to Safala. But although I have generally expressed caution in accepting uncorroborated evidence from Mr Maroun, on balance, I consider it not only plausible but also likely that he had mentioned to Ms Hussein-Smith his intention to go to do a temporary job elsewhere and that he was, in fact, inaccessible by phone and email for a period coinciding with the issue of the 23 February direction. He was unshaken in this regard in cross-examination. I note two other things. Given the significance of this matter on Versatile's case concerning its entitlement to terminate and the clear conflict between Mr Maroun and Ms Hussein-Smith in what the former said to the latter about notice to go to complete another job, I think a Jones v Dunkel inference can be drawn by Versatile's omission, without explanation, to call Mr Jreij, to give his account what was said in the discussion.
If I am wrong in this, I would add that it is another thing to say however, that I should reject his evidence that, from 22 February to 2 March, he was both away in Safala and had made himself deliberately inaccessible. I accept, prima facie, that he did not have phone or even email reception. Versatile was more than capable of using court process that might have falsified Mr Maroun's evidence, by acquiring phone records. It did not do so, despite generally mounting a vigorous case. It was also curious that although Mr Saha was capable and had texted Mr Maroun during the works (the latest one being 1 February 2018 [15] ), he sent no text to Mr Maroun about the imperative of Mr Maroun attending the site after he had not attended the site after the email of 21 February; or seeking explanation why Mr Maroun had not responded to either of the emails of 21 or 23 February.
There was, to adopt what was said in Koompahtoo at [50], an absence of 'serious prejudice' in what Versatile had articulated, or brought home to, Invictus in the lead up to 1 March, relative to the delays that had previously arisen in relation to the completion of stage 4. That was not apparent in Ms Hussein-Smith's affidavit. Indeed, it was notable that among the list of 'non-conforming workmanship' and 'defects' which (at paragraph 36) she had identified in her first affidavit as "serious" and which generated her concern about reputational damage (paragraph 37), the bowing problem was not referred to, in terms [16] .
I find that Versatile had no right to terminate the contract under cl 9.3 of the contract.
[33]
Repudiation?
In Koompahtoo, the plurality said the following about repudiation:
"The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words."
Repudiation is a "serious matter and is not lightly to be found or inferred" [17] , or, as alternatively described, it is "a drastic conclusion which should only be held to arise in clear cases of refusal, in a matter going to the root of the contract, to perform contractual obligations" [18] .
The situation, after the meeting on 21 February 2018 was that there was a general problem with the stairs on stage 4, which included, amongst other things but prominently, bowing. The bowing problem had been brought to Mr Maroun's attention at least by Mr Saha's email, but Mr Saha had pointed out that the consequence of Invictus not rectifying it was that Versatile would fix it itself and charge Invictus later. There was debate about a methodology to fix the problem. Ms Hussein-Smith expected Mr Maroun to propose something different to what he had previously proposed; which she had rejected. Mr Maroun did promise to attend the next day, and did not do so. But even if, by the time he left for his trip, he had a sense that Versatile wanted to get on with the repair work for stage 4 expeditiously, I have accepted that he had conveyed that he was going to be away, for a relatively short period of time and I have rejected the notion that he had deliberately made himself inaccessible by means other than actually appearing on the site.
Perhaps he might have made someone else available to assist with the work in his absence. But it is a long way short of finding that by reason of his being inaccessible, he is reasonably to be taken to have renounced his obligations. He did not make himself deliberately inaccessible. He took his phone with him to Safala. It was not put to him, and he did not admit, that he anticipated that he would not have phone, or email, reception there. Even if Mr Maroun and his workers were accessible, it is particularly relevant to note that, by 23 February, Ms Hussein-Smith had foreshadowed the consequence for a lack of conformance was vastly different than the action to terminate that was taken on 1 March. Even if Mr Maroun and his workers were accessible, had they received an indication of just how seriously Versatile had viewed the importance of compliance, then the issue may have taken on a different complexion for them.
I am not persuaded that Invictus repudiated by failing to comply with the direction issued under an intermediate term of the contract.
In the absence of an express right to terminate, and its failure to establish repudiation by Invictus, I find that Versatile's termination on 1 March 2018 to be unlawful. I will address the consequences of that finding for Invictus' rights later in these reasons.
Given that I have found that the direction was lawful, and was not complied with, Invictus was nevertheless in breach of the term and that entitled Versatile for damages arising from such breach.
[34]
Lay evidence
At paragraph 49(c) of her first affidavit, Ms Hussein-Smith deposed that Versatile had to engage tilers for triple the expected hours over 6 extra nights.
She acknowledged that SAC did not raise any point about delay. She also acknowledged that she had not exhibited to her affidavit any documents to substantiate the assertion of payment for these tilers, or generally for the rectification works identified by Mr O'Donnell in the latter's report.
In her second affidavit (7 September 2022), Ms Hussein-Smith deposed to Versatile engaging a related entity, Absolute Tiling Solutions Pty Ltd (t/as Absolute Tiling Solutions) to do the rectification works. Absolute Tiling Solutions shared the same directors and shareholders with Versatile. An invoice from Absolute Tiling Solutions was annexed to the affidavit (Annexure 'D').
It was dated 10 May 2018. The description of the work and the amount was as follows:
Rectification of ramp Pier C completely out of level: $18,778 (excl GST)
Rectification of stairs incorrect level to existing surfaces Pier C: $41,554 (excl GST)
Balance due $66,365.20 (incl GST)
In cross-examination, it was put to Ms Hussein-Smith that in response to a requirement for production (a notice to produce to Court), Versatile did not produce documents answering the description of proof of payments, or tax invoices for rectification of the stairs. It had not been referred to in Ms Hussein-Smith's first affidavit either, or was it apparently supplied to either of Versatile's experts. It was put to Ms Hussein-Smith that the document was a fabrication. She rejected that proposition.
Ms Hussein-Smith was also referred in cross-examination to an email she had sent to Mr O'Donnell, Versatile's quantity surveyor, on 7 April 2022. There were statements in the email which included:
"In the documents provided, some rectification methods were discussed but we do not know what was actually done and who did it …. We have information on what was wrong but not how it was fixed.
We had to scabble back all stars (sic) and ramp and apply a bond cement, this was then topped with ardit to ensure that we had the right falls, this was caaried (sic) out by out Stone Contractor and as well our demolition contractor."
Ms Hussein-Smith said that the Stone Contractor was the tiling company referred to. In re-examination, she said that she instructed the rectification works to be verified by an independent quantity surveyor, (presumably) Mr O'Donnell.
[35]
Mr O'Donnell's evidence
In his estimate of costs for rectification, at item 3.04 and 3.05, under the sub-heading '3. Rectification of Stairs', Mr O'Donnell relevantly wrote:
Item Trade Description Qty Unit Labour Materials Rate Amount Assumptions
3.04 Tiler rectified stairs by applying a bond cement, and then topping with Ardit to ensure right levels and falls to correct the bow due to formwork failure 1.00 Item 13, 487 13, 487 13, 487 3 men extra 6-night shifts Refer 49(c) in Rhonda affidavit
3.05 Martial to rectify stairs 668 Kg 31,826 48 31, 826 Allowed for Ardit filler and bonding agent. Assumed average thickness 20mm. $47.50/20kg at Bunnings
[36]
Although he was on notice of Mr O'Donnell's costs estimate generally and that expert's reference to work performed to rectify the bowing, Mr Xue did not give any opinion in his report as to the costs of rectification. That reflected his position that if there was bowing at all, it was not defective, or substantially so.
[37]
Versatile's submissions
After some uncertainty about its claim for damages in the hearing, on the premise that Versatile sustained loss or damage exclusively from the presence of bowing, the parties were given the opportunity to raise supplementary submissions, inter alia, on Versatile's claim for damages. Submissions were also invited into aspects of Invictus' claim for damages. To some extent, the supplementary submissions from Invictus (addressing the question of whether any of the works it supplied were defective [19] ) went beyond the grant of leave to the parties and have not been considered [20] .
Versatile settled upon a 'mathematical' exercise based on a breakdown set out in Dr O'Donnell's report, which comprised:
1. Item 3.03 - correction of protrusions or bowing in the stairs $2,248;
2. Item 3.04 - installation of Ardit to correct the bow, $13,487;
3. Item 3.05 - for the Ardit material itself, $31,826;
4. 10% margin - being 10% of $47,461, $4,756;
5. 10% GST - being 10% of $52,317, $5,231.
This made for a sum of $57,548.
[38]
Invictus' submissions
Invictus criticised the invoice of Absolute Tiling in various respects. Although she annexed it to her second affidavit, Ms Hussein-Smith did not depose to its being paid. There was nothing, objectively, to suggest that it was paid, despite court process issued to Versatile (which focussed on the belly issue) indicating a requirement to prove payment. If the bowing issue, and the rectification of the stairs generally was so material, it is difficult to conceive why the tiling company would wait until 10 May to issue the invoice.
[39]
Consideration
Invictus presented no effective answer to the quantum of damages to repair the defect of bowing. Although the earlier non-production of a document in answer to court process was troubling, the fact remained that an independent expert, Mr O'Donnell, quantified as reasonable the cost of the works performed by the related third party in a way that was unchallenged.
The damages award for the defect is $57,548.
[40]
The pleading
The following section proceeds on the premise that Versatile unlawfully terminated the subcontract.
To reiterate, Invictus claimed in its statement of claim (as amended):
1. Payment of the sum of $17,116, being the amount on the unpaid invoice (2324) for the Stage 4 works;
2. Payment of the sum of $2,127.83 retained by Versatile under the subcontract; and
3. Damages of $128,915.07 for Versatile's unlawful termination of the subcontract.
[41]
Mr Maroun's evidence
At paragraph 32 of his first affidavit, after referring to the email correspondence he had with Mr Saha on 2 and 3 March 2018, Mr Maroun deposed that he was disappointed that Versatile had terminated the agreement and explained that he "really could not do anything else but accept that choice and move on."
The invoice upon which Invictus sues was at Annexure L to Mr Maroun's first affidavit. It was emailed to Versatile on 26 March 2018. The sum claimed was $17,116.00. No point was raised by Versatile about the accuracy of the content of the invoice.
On 21 February 2020, a letter of demand was sent on Invictus' behalf by its solicitors to Versatile, asserting a debt arising from the unpaid invoice.
On 30 September 2020, Invictus commenced the proceeding by filing a Statement of Claim. That iteration of its pleading alleged (paragraph 12) that Invictus had "elected" to terminate the subcontract. Particulars to paragraph 12 were supplied, but they were only directed to the 'loss and damage' which Invictus alleged had been caused by the repudiation. No particulars were supplied of the election.
Mr Maroun was referred to Ms Hussein-Smith's evidence that (negative) variations were made during the Stages 1A, 1B and 2, in relation to demolition of stair bedding and rectification of stair bedding. Mr Maroun was reluctant to accept that this amounted to a form of costs saving for Invictus arguing that this was work that Invictus would have had to perform and that Invictus went along with the variation for the sake of goodwill. Nevertheless, he accepted that its consequence was a downward adjustment on the amount to which Invictus was entitled under the contract.
[42]
Ms Hussein-Smith's evidence
At paragraph 24 of her first affidavit, Ms Hussein-Smith referred to variations reducing the amount paid to Invictus were applied to their work during Stages 1A, 1B and 2 and asserted that this reduced the amount payable to Invictus. She deposed that these were:
1. demolition of stair bedding, including rubbish removal and site supervision ($1,440)
2. rectification of stair bedding ($2,750).
The aggregate sum for these two amounts is $4,190.
[43]
Parties' submissions on Invictus' claims in debt and damages
[44]
The unpaid invoice
Invictus submitted that it was common ground that the Stage 4 work was a variation. By reason of cl 7.1, Versatile was entitled to and did instruct Invictus to execute the work. The provisions for variations in the contract were fulfilled. Invictus performed the work by 13 February 2018. After doing so, it was entitled to have the agreed price for the variation, being the sum of $16,500 (excl GST) added to the original contract sum. Invoice 2324 reflected the price of the Stage 4 work, with additional expense. In breach of cl 3.2 of the subcontract, which required it to release payment at the end of the month, Versatile refused to pay the amount invoiced. That now constitutes a debt (sourced in contract) due and owing.
[45]
Retention sum
Invictus submitted that Versatile has no entitlement to hold the Retention Sum where the subcontract has been terminated, there are no defective works and the Retention Sum derived from construction work had been previously undertaken by Invictus.
[46]
Claim for damages
This claim arises from Versatile's unlawful termination, in the circumstances previously indicated. Invictus accepted that conduct as amounting to a repudiation and terminated the subcontract. It contends that it suffered loss and harm. As to the last submissions, it relies upon paragraph 37 of Mr Maroun's affidavit, however, that paragraph was admitted only as a submission.
[47]
General
Versatile submitted that even if it had unlawfully terminated the subcontract, and that this conduct had thereby amounted to a repudiation, Invictus had not 'accepted' the repudiation, and in such way terminated the contract itself. On this analysis, the contract was abandoned.
Alternatively, on other aspects of the claim, Versatile did not dispute an action in debt for the non-payment of the invoice; subject to two qualifications. The first is that it was sourced in contract, not in statute. I will address Invictus' claim under the Security for Payment legislation separately. The second qualification concerned what Versatile characterised as being 'negative variations'.
[48]
The negative variations
Mr Corsaro SC observed that a variation under cl 1.1 included a decrease or omission in the plaintiff's scope of works and any change in the character of quality of the plaintiff's works. Cl 7 permitted Versatile to instruct Invictus to 'execute' a variation. In the context of an omission or decrease in works, the only way that this might be 'executed' is by the particular work not being done, or a reduced scope of the work.
Mr Maroun had accepted that this work originally formed part of the original scope for works and that Invictus was not required to do it because of Versatile's instruction. Mr Maroun accepted the fact and value of the deductions for 'goodwill'. The evidence of the value of the negative variations was neither objected to nor challenged and was the only evidence of value.
The damages claimed by Invictus were for the full contract value, even for work which was not done; and were 'wrapped up' in its damages claim. But because there was no basis for any damages claim, Versatile ultimately submitted that the negative variations were rendered irrelevant.
[49]
Retention sum
Versatile submitted that the parties agreed to a 10% retention from each progress claim to a maximum of 5% of the revised subcontract sum. If the contract was lawfully terminated, cl 9.4(d) provided that the retention would not be repaid. But the contract was otherwise silent on if the retention was to be repaid and, if so, when it was to be repaid.
If the contract was not lawfully terminated, Versatile's right to deduct retention from any amount paid was an accrued right surviving termination. Invictus did not submit any legal basis for its claimed entitlement to the amount deducted. That omission was telling particularly where there was no express term envisaged its return.
[50]
Claim to damages
Versatile submitted that even if a right to damages did arise in Invictus' favour, it could not extend to the recovery of damages in respect to works not performed under the subcontract as a whole. There was no claim brought for a loss of opportunity to perform the balance of staged works; or any indication of loss of profit or savings foregone.
[51]
'Negative' variations
On this point, Invictus submitted that the two sums referred to by Ms Hussein-Smith (paragraph 24) had already been deducted from Invictus' earlier claims for Stages 1 and 2. This had been recognised by Ms Hussein-Smith in the earlier part of her affidavit where she had deposed (at paragraphs 21-23) to Versatile having received claims for stages 1A, 1B and 2 from which the sums in paragraph 24 had been deducted. In other words, any appropriate deductions had already been dealt with.
As Ms Hussein-Smith had explained, the negative deductions were really sums representing the costs of rectifying defects. Although cll 8.4 and 8.5 entitled Versatile to pass on to Invictus deductions for these earlier stages, that was conditional upon Invictus failing to comply with a direction by Versatile or by its being notified of Versatile's intention to accept the defect or omission. There was no evidence of Versatile providing any such direction or notification. There was no basis for Versatile to make any deduction now.
Without such direction or notification, consistently with cl 8.2, Invictus was entitled to rectify defects in Stages 1 and 2. Versatile effectively overrode that right when it engaged a third party to rectify those defects. As Mr Maroun had explained, had Invictus been given the right, the cost would have been a quarter of the price of the two amounts deducted by Versatile, as referred to by Ms Hussein-Smith at paragraph 24 of her affidavit, being a sum of $1,047.50 (a quarter of $4,190). The difference between Versatile' deduction ($4,190) and what would hypothetically have been the cost of repair for the Stage 1 and 2 works ($1,047.50) is $3,142.50. Invictus is entitled to receive payment for that difference.
The sums deducted were not negative variations within the meaning of cl 7 of the subcontract. There was nothing to prove that the works the subject of the deduction formed part of the scope of works for Invictus: all that it was contracted to do was to install stairs and ramps; not demolish or rectify them.
[52]
The retention sum
Invictus argued that cl 9.4(d) of the subcontract that entitled Versatile to deny repayment of the retention sum if the subcontract was lawfully terminated was not reflected in the text of the provision. If the contract was not lawfully terminated, the circumstance that the right accrued and therefore survived termination did not alter the analysis.
Versatile had no right to withhold repayment of the retention sum. Although the parties agreed on the percentage reduction to a progress claim (up to a cap of 5% of the contract price), they did not agree that Versatile was permanently entitled to withhold repayment of the sum. It was a matter of common knowledge that retention was a form of security provided by a subcontractor to a head contractor for the subcontractor to rectify defects. Where there are no defects, the contractor must repay the amount.
[53]
The claim for damages
Versatile correctly conceded that if, as I have found, its termination of the contract was unlawful, Versatile repudiated the contract. It also correctly argued that Invictus' acceptance of it was necessary for it to terminate the contract itself. [21] . An unaccepted repudiation does not terminate a contract. The onus falls upon a promisee who claims to have terminated the contract for repudiation to establish an effective election. In the absence of an express right in Invictus, it would have to establish effective election by proof of unequivocal words or conduct evincing such election [22] . It is unnecessary, however, for an election to terminate to be expressed as such: any words or conduct are sufficient if the election is manifest to the other party [23] . What needs to be clear is an indication that the innocent party treats the contract as being at an end.
But all that Invictus was required to do was to accept what Versatile had sought to accomplish by the service of the termination notice; namely, to discharge the parties from further obligations under the sub-contract. Although, Mr Maroun complained to Mr Saha, that was to do with the underlying reasoning behind Versatile's conduct. Not the result. And although the invoice Invictus subsequently issued referred to it being issued under the Security for Payment legislation, that was a standard reference in that document. There was nothing in Invictus' conduct manifesting any continuing entitlement to perform its obligations under the subcontract. As Mr Maroun deposed in his first affidavit (at paragraph 32), he never returned to the Airport since, to his mind, he had no choice but to move on. By its conduct, Invictus elected to terminate the subcontract.
However, I agree with Versatile that Invictus is not entitled to receive the balance of the unpaid price under the contract. It would be entitled to be placed in the position it would be if the breach (or repudiation) had not occurred, but that would have entailed its own performance of the remaining stages of the subcontract. Issues would arise about what profit it would have made, including consideration of the costs incurred. There was no evidence of this.
Invictus' claim for damages for Versatile's repudiation in contract therefore fails.
[54]
The unpaid invoice
Subject to the two considerations of what may be set off against the sum, concerning the negative variations and the retention sum, I did not understand Versatile to dispute the debt claim arising from an unpaid invoice for performance of stage 4 works; given Invictus' right survived termination of the subcontract [24] . Subject to those potential offsets, Invictus is entitled to the quantum on that invoice, plus interest.
[55]
The 'negative' variations
In my view, Versatile has no basis to withhold from Invictus amounts reflected in paragraph 24 of Ms Hussein-Smith's affidavit additional to its general assertion of a right to maintain the retention sum. To do so would amount to double counting. What she deposed to at paragraph 24 is not to be read in isolation but viewed against the other circumstances at paragraphs 21-23 and 25 of the same affidavit. According to Ms Hussein-Smith's own evidence, prior to terminating the contract, Versatile had already "applied" the variations as part of the retention sum.
I would also add that it would be inappropriate to accept Invictus' submission as to its entitlement to receive a further $3,142.50, which was not pleaded, as it would be procedurally unfair to make an order conferring an entitlement based upon a lost opportunity to repair defective works.
[56]
The retention sum
To reiterate, I have found that Versatile did not terminate the contract pursuant to its express right under cl 9.3 and also found that Versatile was not entitled to terminate the subcontract because of any repudiation by Invictus.
That being so, Versatile did not accrue any right under cl 9.4 which survived termination. The provision for a retention sum was intended to provide effective security to Versatile [25] against all of the sub-contractor's breaches, by pooling the costs of defects to be rectified by Invictus, prior to payment of the balance owing to Invictus after the end of the defects liability period. The amount kept by Versatile as retention sum, as security, could be utilised by Versatile to assist it to partly enforce its judgment for $57,548 (for example, if Invictus becomes unable to pay the whole or part of the judgment sum on the cross-claim after a set-off), but Versatile is not entitled to receive the full payment of that judgment on its cross-claim and thereafter to keep the retention sum; as that would amount to a form of 'double recovery.'
[57]
INVICTUS' CLAIM UNDER THE SECURITY OF PAYMENT LEGISLATION
[58]
The parties' submissions
Invictus submitted that its claim in debt may be viewed as being sourced in contract, by reason of the provisions of the SOP Act. In particular, by ss 8 and 9 of the SOP Act, Invictus was entitled to receive a progress payment, calculated in accordance with the contract for the work it carried out under the subcontract. Thereafter, Invictus served a payment claim on 26 March 2018, being the next calendar month after it had completed the Stage 4 work, which had occurred by at least 13 February 2018. Although Versatile purported to serve a payment schedule on 10 April 2018, that was invalid, in two respects. First, it did not indicate why the scheduled sum was less and it did not indicate reasons for withholding payment. Secondly, it was not provided within the 10-day period from service of the invoice. In the absence of a valid payment schedule, Versatile became liable to pay the payment claim on the due date. That date has long passed. By s 15(2)(i) of the SOP Act, Invictus is entitled to recover the debt in Court and, further, s 15(4)(b)(ii) precludes Versatile raising a cross-claim or defence in relation to matters arising under the subcontract.
Versatile submitted that the statutory regime dealt with the making of interim payments, whilst preserving the rights of parties to a construction contract in a final determination by the Court. It was antithetical to the statutory regime for the Court to make what is in substance an interim order when, at the same time, the Court is pressed to make a final determination of the parties' rights.
[59]
Consideration
In circumstances where I have determined that Invictus had a good claim for payment of its unpaid invoice, it was not obvious to me what the further utility was of a claim under the SOP Act where the subject invoice was treated as a 'payment claim' under the Act. Even if the Court was to make an award to reflect the statutory debt, under s 32 of the SOP Act, that would not affect Versatile's rights under the subcontract or in law. In a de-facto sense, at least, under the statute only an interim order will be made [26] , before the parties rights are finally determined, and if appropriately adjusted, at a final hearing.
If I am wrong in finding such implication, the only difference that would be made would be a sort of provisional or contingent finding of the action for the statutory debt to be then adjusted to meet allowance being made for Versatile's Cross-Claim.
[60]
Parties' submissions
In the alternative to its claim in contract, Invictus relies on a quantum meruit for work performed (and/or a quantum valebat). It submitted that it did the Stage 4 work, Versatile received the benefit of it and has been unjustly enriched at Invictus' expense.
Versatile submitted that there was no basis for such a claim. At best, the invoice itself evidenced only the cost of the work. It did not prove the value of the work rendered. That had to be determined from the perspective of the contracting party who had validly terminated. Versatile, of course, submitted that it had validly terminated, but if that was wrong, it could not be found that Invictus had terminated the subcontract, as it had not accepted any repudiation found against Versatile.
[61]
Consideration
There is an inadequacy in the evidence to establish what the proper value was of the work performed, in a way that might indicate that Invictus was entitled to anything more than its unpaid invoice. To repeat, Invoice 2324 reflected the price of the Stage 4 work, with additional expense. Even if Invictus did accept Versatile's repudiation and terminated the contract, and even if restitutionary relief was available as a concurrent remedy for any award of damages for work performed prior to termination, the quantum of any available restitutionary relief would not exceed the amount recoverable for the work performed for stage 4 that was charged for in accordance with the contract price [27] .
[62]
summary & orders
To summarise my findings, they are:
1. Invictus did not comply with a valid direction made under the contract;
2. Versatile was not, however entitled to terminate the subcontract in accordance with the terms of the subcontract, nor was entitled to terminate the subcontract for repudiation by Invictus;
3. Versatile's termination was unlawful and amounted to a repudiation of the subcontract;
4. Invictus did elect to terminate the subcontract, but did not establish that substantial loss or damage was caused to it following Versatile's repudiation, so therefore does not succeed on its claim for substantial damages;
5. Invictus succeeds on its claim in debt, arising under the contract, for the unpaid invoice, for the sum of $17,116;
6. Versatile's rectification costs for Invictus' non-compliance with the direction concerning the bowing may offset its liability on the unpaid invoice;
7. It is unnecessary to determine Invictus' claims in restitution or under the Security for Payment legislation, as such claims, as quantified, do not confer upon Invictus' rights to any additional monetary claims beyond its entitlement under the invoice giving rise to Invictus' successful action on the debt sourced in contract.
The parties are to prepare short minutes of order to reflect these reasons; including consideration of the issue of costs. I direct them to confer within 7 days and, if agreement can be reached, the plaintiff can supply my Associate with short minutes, which can be ordered in chambers.
If the parties disagree on orders to dispose of the proceeding, my Associate should be notified and directions will be made for the parties to make further short submissions with a view of final orders being made on the papers.
[63]
Endnotes
Versatile conceded that it could not rely upon an entitlement to sue under cl 9.3(c) as there was no 'Default Notice' served which fulfilled the requirements of cl 9.2.
Court Book, pp 676-677
These were in Ex 2, (CB 674,676)
T 125-126
This was CB 179
This was CB 177 ('photo 2'), 676, 758 (photo '15')
CB 177
CB 179
CB 179
This was CB 180
Sofala falls within the Bathurst Regional Council
Also Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 at [16], [73]
Owners of SP 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304 per Hammerschlag J (as his Honour then was) at [173]-[209]
T 38.47 and T 70.25. Note that the admissions that were made by Mr Maroun were responsive to multi-faceted questions (albeit not objected to) so were not free from some ambiguity
Annexure F to Mr Maroun's first affidavit (CB 130)
Paragraph 10 of Versatile's cross-claim distinguished bowing from the other matters raised in paragraph 36 of Ms Hussein-Smith's affidavit.
Shevill v Builders Licensing Board (1982) 149 CLR 620 at 633-4
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 per Ward JA (as her Honour then was, McColl JA agreeing) at [128]
Section 3 of Invictus' supplementary written submissions
When inviting supplementary submissions, the parties' attention was drawn to an exchange with Senior Counsel for Versatile at T 234-235, but that was plainly to do with Versatile's case on its damages' claim following any finding of a defect i.e. bowing; not whether there was any defect.
Visscher v Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]
J Carter, Breach of Contract, (2011) Articles 10.2 -10.3, 10.7
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at [155]
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 per Dixon J at 476-7
N Dennys and R Clay (eds) Hudson's Building and Engineering Contracts (14th ed, Sweet and Maxwell) (2020), [s - 069] p g83
See Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [39] - [40].
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at [172]-[176]
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: 17 October 2022
Parties
Applicant/Plaintiff:
Invictus Development Group Pty Ltd
Respondent/Defendant:
Versatile Fitout Pty Ltd
Legislation Cited (3)
Building and Construction (Security of Payment) Act 1999(NSW)ss 8, 9, 15, 32