20 It put that the Certificate of Practical Completion was invalid or vitiated because:
a clause 42.3.5 which authorises the Superintendent to issue such a Certificate of Practical Completion has no operation unless and until the matters "called-up and the steps mandated" by cl 42.3.1, cl 42.3.2 and cl 42.3.3 have been satisfied or there has been a failure on the part of the Contractor to give the notices under cl 42.3.1 and cl 42.3.3 and the Superintendent has formed the requisite opinion under cl 42.3.5;
b in purporting to give and issue respectively the Notice of Variation to Works and Certificate of Practical Completion the defendant, in breach of cl 23.1(a), did not exercise its functions, or failed to ensure that in the exercise of its functions it acted fairly because it acted for an impermissible purpose and in its own interests without regard for those of the plaintiff.
21 In the alternative, it put that the Certificate of Practical Completion should be set aside under the provisions of s 87 of the Trade Practices Act 1974 (Cth) ("the Act") on the grounds that in issuing it the defendant engaged in unconscionable conduct in contravention of s 51AA of the Act, which provides that a corporation shall not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.
22 Mr I G B Roberts of counsel appeared for the defendant.
23 The defendant put firstly that it was entitled to call on the Guarantees even if the Certificate of Practical Completion was of no effect or vitiated, because the Guarantees reflect an unconditional right on the part of the defendant to make demand. It put that the Contract contains no express or implied negative stipulation to the effect that the defendant would not do so even if the Advance Payment was not repayable. It put that the Contract evinces an allocation of risk that in the event of a dispute it would be the Contractor who would be out of pocket.
24 Secondly, the defendant put that:
a under cl 40.1.3 the Superintendent is empowered to vary the Works by deleting therefrom any part of them and that what was left then became the Works within the definition of that term in cl 2;
b the Notice of Variation to Works was a valid exercise of that power;
c upon that Notice of Variation to Works being given the Works were fully complete and full completion must comprehend and include Practical Completion which was thereby achieved;
d the Certificate of Practical Completion was validly given;
e 21 June 2010 was the date of issue of the Certificate of Practical Completion for Stage 3 under cl 42A.4(d)(i);
f the whole of the balance of the Advance Payment then unrepaid became a debt due and payable by the plaintiff to the defendant so that the defendant became entitled to call on the Guarantees.
25 The submission that the defendant was unconditionally entitled to call upon the Guarantees even if the Advance Payment was not repayable was, it appeared to me, ultimately only faintly pressed. It is nevertheless necessary to deal with it.
26 Whether the Contract contains a negative stipulation to the effect contended for by the plaintiff is a matter of the proper construction of cl 42A in the context of the whole of the Contract: see Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2008] FCAFC 136 at [77] and the authorities cited there.
27 For the following reasons I consider that the Contract contains an implied negative stipulation binding the defendant not to call on the Guarantees to effect repayment of the Advance Payment at a time when it is not repayable.
28 Firstly, although cl 42A.4(a) commences with words "[w]ithout limiting or otherwise affecting the Principal's right to have recourse to any Advance Payment Bond (including in accordance with clause 42A.5(b))" and cl 42A.5(b) commences with the words "[w]ithout limiting or otherwise affecting any other right the Principal may have to have recourse to any Advance Payment Bond", cl 42A.4(d) legislates in express terms for only three instances in which the outstanding balance of all Advance Payments becomes a debt immediately due and payable. One is the issue of a Certificate of Practical Completion for Stage 3.
29 Secondly, cl 42A.4 and cl 42A.5 refer to the Principal's right to have recourse to any Advance Payment Bond. They do not refer to circumstances where such a right is only asserted, rather than established.
30 Thirdly, there is no provision in the Contract which indicates that payment must be made notwithstanding the pendency of a dispute. The only obligations which cl 47.1 (which was amended by the Deed in respects not presently relevant) requires the parties to continue to perform notwithstanding the existence of a dispute are that the Contractor continue with the Work and that the Principal comply with cl 42.1 (payment of certified claims): cf Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd at [54]-[57].
31 Fourthly, an Advance Payment Bond is provided only when an Advance Payment is made and then to the same value. This reflects an intention that security is being provided for the repayment of an Advance Payment when it is due and not otherwise, rather than an intention temporarily to allocate risk.
32 The plaintiff having put the question of the defendant's entitlement in issue by taking these proceedings to enjoin its claim on the Guarantees, the question of its entitlement in fact is to be addressed in the proceedings: Reed Constructions Services Pty Ltd v Kheng Seng (Australia) Pty Ltd (1998) 15 BCL 158 at 166.