252 Furthermore, the conduct of Multiplex in seeking the bank guarantees at the stage that it did (December 1997) suggests that it believed that legal relations had already been created or were to be created in advance of the execution of any contract document. This is matched by JRK then providing those bank guarantees in accordance with the agreement [Ex P2, docs 5 & 6].
253 As the defendants' submit, the appropriate way to view the chronology is shortly as follows [the following extract taken from the Defendants written submissions is essentially complete with the omission of one or two sentences]:
· JRK submitted a tender on 12 February 1997 [which] conditionally offered to do the permanent hydraulics works for the price of $8,524,000 on certain terms. JRK's offer was conditional in the sense that it excluded certain items and proposed terms different from the Multiplex tender conditions. However, it expressly incorporated the documents referred to in the Invitation to Tender. By that letter JRK advised Multiplex that it could not determine a final price for the design of the permanent hydraulics works for the project until briefed on the overall design.
· A number of post tender interviews between the parties and Multiplex's consultants followed to clarify the design brief in connection with the works [Ex D14, para 15; Ex D8, paras 10-15]. By tender letter dated 4 March 1997, JRK revised its price to $7,816,000 while still advising Multiplex that the price should not be considered as final as it still needed to be briefed on the design details.
· JRK revised its tender price to $7,560,000 by letter dated 10 March 1997. The 10 March 1997 tender letter should be viewed as a step towards a better tender price. It suggests a practical way out of resolving the question of design details. Its starting point is the hydraulic services price based on the tender plans and specifications of $7,560,000, which price would remain provisional until JRK completed the design. The arrangement proposed by JRK was that JRK would prepare a design which could be submitted for approval and on which JRK would be in a position to price the works on a final basis.
· In the meantime, Multiplex was assessing its position on the permanent hydraulics works based on the preliminary price referred to in the 10 March 1997 tender letter. That could only be made final on a design that was to be completed by JRK. JRK became Multiplex's preferred tenderer [Ex D14, para 17-20].
· JRK then commenced doing the work in connection with the permanent hydraulic services. Mr Twiss of JRK worked with Multiplex's design consultant, Sinclair Knight Merz to develop an hydraulic design on which JRK could then base its final price for the design and construction of the works required [Ex D10, paras 7-12 and Mr Twiss at T281/9-T292/15].
· On 27 May 1997, JRK submitted a Quality Assurance Manual . Submission of such a document had been stipulated for in clause 10 of the Special Conditions [Ex DY, vol 1, tab 3, pages JK02-041-JK02-042]. The matter had been specifically treated with in the Plaintiffs letter of 27 May 1997 earlier referred to. [Ex DY, vol 2, tab 11];
· Further discussions with Multiplex and Sinclair Knight Merz followed and then on 4 June 1997, JRK submitted a further revised tender price of $12,326,850 [Ex DY, vol 2, tab 7]. That tender identified revised drawings and specifications upon which the tender price was based. That tender letter is a 'tender adjustment', adjusting the price but not the fundamental conditions. What it sought to do was to explain why the tender price had increased from the preliminary price of $7,560,000, which is expressly referred to in the tender letter. It cannot be treated as a separate tender price divorced from the rest of the formal documents. It merely goes to explaining that, having carried out the exercise that was proposed in the tender letter of 10 March 1997, JRK was now closer to a final tender price.
· That was followed by a letter dated 27 June 1997 in which JRK identified savings of $960,000, reducing the overall tender price to $11,366,850 [Ex DY, vol 2, tab 14]. This is consistent with a Design and Construct contract where the contractor in the course of the design work looks for and proffers any savings that are capable of being made to the works.
· JRK revised the tender price again by letter dated 18 July 1997. The price now became $11,411,264 with work to an amount of $606,756 identified as falling outside the scope of the works. This letter incorporated expressly the tender letters of 10 March 1997, 4 June 1997 and 27 June 1997 and impliedly (via the 10 March 1997 letter) the material forming a part of the Invitation to Tender. By this letter JRK represented that it '[had] investigated all aspects of the hydraulic services with the view of obtaining a final tender price…" [Ex DY, vol 2, tab 22].
· JRK's letter of 18 July 1997 became the basis of further negotiations between the parties and led to a further revised final tender dated 12 August 1997 for $12,408,020 [Ex DY, vol 2, tab 21; Ex D10, paras 17-19]. This later revised tender was a re-engrossed form of the 18 July 1997 tender that was the subject of discussion and acceptance by Multiplex on or about 18 July 1997. Consequently, the 12 August 1997 letter stated, "Further to our discussions with yourself we have pleasure in submitting our contract price…". Mr Twiss gave unchallenged evidence that he was asked to submit the final contract price and he did so by this letter [Mr Twiss at T278/51-T279/12].
· From that time on, until 8 May 1998, the parties were moving forward as though they were bound by a contract. JRK made progress claims in accordance with the terms and conditions of the subcontract. Multiplex administered and paid those progress claims in precisely the manner it would be expected if the 5 December version set the terms and conditions of the subcontract. JRK made variation claims. Up to that date, Multiplex had paid and JRK had received $7,776,113.80 [Ex DX, Blue Folders, PAB.01.697. Mr Twiss gave clear evidence that he prepared the progress claims, "we had to get John to sign a form" (the statutory declaration) and that the first time he had done that was on this project should be preferred and accepted [Mr Twiss at transcript page283/13-55]. Mr Keith agreed that he contemplated that the general conditions that would apply if the parties agreed to a subcontract, were the conditions that contained Schedule 5, clause 2(c) [Mr Keith at transcript page 223/39-46].
254 A not insignificant pointer, as it seems to me, supporting the inference that the annotated 18 July 1997 letter was a letter by which the parties intended to be bound in terms of a concluded bargain is the circumstance that the second form of sub contract sent by Mr Cooksley to the plaintiff included as an annexure, albeit not given an annexure number, a copy of the annotated 18 July letter. There is no doubt that the evidence proved this occurrence. It was accepted by both counsel that a document in this form on the evidence had indeed been included at the end of this version of subcontract [see transcript pages 96, 339, 340]. The very communication of this letter at this important point in time highlights its significance as a contractual document.
255 When pressed in argument to identify where the annotated 18 July 1997 letter (incorporating by express or implied reference (1) the plaintiffs letter of 10 March [which in turn incorporated other documents and plans by reference], (2) the plaintiffs letter of 4 June 1997 which expressly incorporated certain plans and specifications and (3) the plaintiffs letter of 27 June 1997) failed to throw up certainty in terms of the scope of work which the plaintiff was engaging to carry out, Mr Gray of counsel for the plaintiff was forced to submit that it was the entirety of the enumerable detailed terms and conditions usually to be found in a sub contract which were missing. [See transcript pages 369-371 and in particular 371.54]
256 The detailed transcript of argument particularly where Mr Gray addressed submissions repays careful reading. The Court endeavoured to elicit from Mr Gray an answer to the question of whether the annotated 18 July 1997 letter read together with those materials which are incorporated by reference in it, if read in isolation from any other document, was sufficiently precise as to scope of work and price as to leave no question of uncertainty. As I understood Mr Gray's responsive submissions the answer was generally in the affirmative although Mr Gray repeatedly sought to make the point that the problem would be inhere in the fact that the whole of the usual 'inch and a half' of terms and conditions to be found in the detailed forms of sub contract which were the norm in the industry, would by definition be absent. And Mr Gray then travelled through, again and again, those areas of dissension which later were evident in the negotiations following the submission of the November form. Looking at the later forms of dissension does not assist in the determination of the particular question which the Court had put to Mr Gray which endeavours to address the important question of certainty in terms of the scope of work to be provided by the plaintiff. Looking at the later forms of dissension of course does play a material part in the determination of whether or not the objective assessment of all the communications evidence an intention to make a concluded bargain.
257 Whilst I confess that my mind has wavered in terms of assessing a most curious set of circumstances, at the end of the day I have reached the clear conclusion that Multiplex is correct in its contention that a binding and enforceable agreement exists between the parties. Insofar as the agreement is in writing it is comprised of the following documents:
(a) Multiplex's Invitation to Tender dated 5 December 1996, including the documents incorporated by reference [Ex DY, vol 1, tab 3], namely:
(i) The Multiplex Subcontract Deed of Agreement;
(ii) Annexures A to O;
(ii) Hydraulics Specification Revision 0 dated November 1996;
(iv) Documentation Register;
(v) Special Conditions;
(vi) Site Safety Instructions;
(vii) Design Brief;
and
(b) JRK's 18 July 1997 letter, as amended, incorporating by express or implied reference the plans and documents [Ex DY, vol 2, tab 20], namely:
(i) JRK's letter dated 10 March 1997, which incorporates other documents and plans by reference [Ex DY, vol 2, tab 7];
(ii) JRK's letter dated 4 June 1997, which incorporates expressly plans and specifications [Ex DY, vol 2, tab 12];
(iii) JRK's letter dated 27 June 1997 [Ex DY, vol 2, tab 14]
258 The agreement was formed between the parties on or about 18 July 1997, but before 12 August 1997, when Multiplex accepted JRK's final tender price of $12,408,020 as contained in JRK's letter dated 18 July as amended in the contemplation that the parties would make a further contract containing additional or other terms in substitution (Masters v Cameron class four type of agreement). Neither party addressed submissions suggesting that there were any material differences in the terms of the 12 August 1997 letter as opposed to the terms of the annotated 18 July 1997 letter.
259 On my findings either the 5 December 1996 letter [generally referred to in this judgment as 'the 5 December 1996 version"] had annexed to it each of the documents referred to in sub-paragraph (1)(a)(i)-(vii) of paragraph 11 above or those documents were available for inspection by the plaintiff at the time. The evidence in relation to and position in relation to Parts E and F of the Design Brief is referred to below.