Kennedy Taylor (Vic) P/L v Crown Ltd [2001] VSC 343

Kennedy Taylor (Vic) P/L v Crown Ltd [2001] VSC 343 - VSC 2001 case summary — Zoe

[18]

"11.1 Further, the Defendant says that the parties agreed the price of many of the variations referred to in Annexure 1 to the Statement of Claim, and the Defendant paid to the Plaintiff and the Plaintiff accepted the agreed amounts set out in Schedule 1 hereof.

PARTICULARS

The agreements were partly oral, partly in writing and partly to be implied. Insofar as the same were oral they were constituted by conversations at the site offices of Hudson Conway or on the telephone between John Holland on behalf of Hudson Conway and Ron Begbie and/or James Craige of the Plaintiff. Insofar as the same were in writing they were constituted by notations, comments, initials, signatures and dates written by John Holland on behalf of Hudson Conway on documents entitled Report on Contractor's Variation Notice on diverse dates most of which appear on the said documents. Insofar as the same were implied such implication arose from the following: (a) the notification to the Plaintiff of the adjustment to the agreed contract price made by the Defendant in respect of the relevant variation in Contract Price Adjustment Advice forms and/or Contract Price Adjustment forms, (both of which are hereinafter referred to as CPA's) copies of which were sent to the Plaintiff in the course of the contract;" (b) progress payment claims made by the Plaintiff, and progress payment certificates and cheques made by the Defendant to the Plaintiff from time to time reflecting assessments of work completed to date and calculated upon the adjusted contract price (as recorded in the CPA's) as at the date of the progress payment which reflected adjustments contained in the CPA's referred to in (a) above; (c) the acceptance of progress claim certificates and the presentation for payment of the cheques referred to in (b) above without complaint; (d) the delivering of the Defendant by the Plaintiff of its final claim under the contract which was premised upon and reflective of an acceptance by the Plaintiff of the contract price adjustments, progress payment certificates and payments referred to above. The agreement was oral and was constituted by conversations at the site offices of Hudson Conway between John Holland on behalf of Hudson Conway and Ron Begbie and James Craige of the Plaintiff. Particulars of the variations, the corresponding amounts agreed and the corresponding dates on which agreements were was reached are set out in Schedule 1 hereto."

[21]

"11.1 Further, the Defendant says that the parties agreed the price of many of the variations referred to in Annexure 1 to the Statement of Claim, and the Defendant paid to the Plaintiff and the Plaintiff accepted the agreed amounts set out in Schedule 1 hereof.

PARTICULARS

The agreements were partly oral, partly in writing and partly to be implied. Insofar as the same were oral they were constituted by conversations at the site offices of Hudson Conway or on the telephone between John Holland on behalf of Hudson Conway and Ron Begbie, Jim Paneras and/or James Craige of the Plaintiff. Insofar as the same were in writing they were constituted by notations, comments, initials, signatures and dates written by John Holland on behalf of Hudson Conway on documents entitled Report on Contractor's Variation Notice or Contract Price Adjustment Advice (both of which are hereinafter referred to as `assessment reports') on diverse dates most of which appear on the said documents. Insofar as the same were implied such implication arose from the following: (aa) the conduct of the Plaintiff in submitting a quotation, claim or invoice (which was paid in full by the Defendant) and the Plaintiff's conduct in accepting such payment without demur particulars of which are set out in Schedule 16 hereto (in relation to Schedule 1 items) or the conduct of the Plaintiff in submitting a claim in this proceeding (which had been paid in full by the Defendant) and the Plaintiff's conduct in accepting such payment without demur particulars of which are set out in Schedule 17 hereto (in relation to Schedule 1 items); (bb) the notations, comments, initials, signatures and dates written by John Holland on behalf of Hudson Conway on assessment reports on diverse dates most of which appear on the said documents made contemporaneously with or immediately subsequent to the oral agreement referred to above; (a) the notification to the Plaintiff of the adjustment to the agreed contract price made by the Defendant in respect of the relevant variation in Contract Price Adjustment Advice forms and/or Contract Price Adjustment forms, (both of which are hereinafter referred to as CPA's) copies of which were sent to the Plaintiff in the course of the contract; (b) progress payment claims made by the Plaintiff and progress payment certificates issued and cheques drawn by the Defendant in favour of the Plaintiff from time to time reflecting assessments of work completed to date and calculated upon the adjusted contract price (as recorded in the CPA's) as at the date of the progress payment which reflected adjustments contained in the CPA's referred to in (a) above; (c) the acceptance of progress claim certificates and the presentation for payment of the cheques referred to in (b) above without complaint; (d) the delivering to the Defendant by the Plaintiff of its final claim under the contract which was premised upon and reflective of an acceptance by the Plaintiff of the contract price adjustments, progress payment certificates and payments referred to above. The agreement was oral and was constituted by conversations at the site offices of Hudson Conway between John Holland on behalf of Hudson Conway and Ron Begbie and James Craige of the Plaintiff. Particulars of the variations, the corresponding amounts agreed and the corresponding dates on which agreements were was reached are set out in Schedule 1 hereto."

[25]

"11.1 Further, the Defendant says that the parties agreed the price of many of the variations referred to in Annexure 1 to the Statement of Claim, and the Defendant paid to the Plaintiff and the Plaintiff accepted the agreed amounts set out in Schedule 1 hereof.

PARTICULARS

The agreements were partly oral, partly in writing and partly to be implied. Insofar as the same were oral they were constituted by conversations at the site offices of Hudson Conway or on the telephone between John Holland on behalf of Hudson Conway and Ron Begbie, Jim Paneras and/or James Craige of the Plaintiff. Insofar as the same were in writing they were constituted by notations, comments, initials, signatures and dates written by John Holland on behalf of Hudson Conway on documents entitled Report on Contractor's Variation Notice or Contract Price Adjustment Advice (both of which are hereinafter referred to as `assessment reports') on diverse dates most of which appear on the said documents. Insofar as the same were implied such implication arose from the following: (aa) the conduct of the Plaintiff in submitting a quotation, claim or invoice which was paid in a lesser sum by the Defendant and the Plaintiff's conduct in accepting such payment without demur particulars of which are set out in Schedule 16 hereto (in relation to Schedule 1 items); (a) the notification to the Plaintiff of the adjustment to the agreed contract price made by the Defendant in respect of the relevant variation in Contract Price Adjustment Advice forms and/or Contract Price Adjustment forms, ( both of which are hereinafter referred to as CPA's) copies of which were sent to the Plaintiff in the course of the contract; (b) progress payment claims made by the Plaintiff and progress payment certificates issued and cheques drawn by the Defendant in favour of the Plaintiff from time to time reflecting assessments of work completed to date and calculated upon the adjusted contract price (as recorded in the CPA's) as at the date of the progress payment which reflected adjustments contained in the CPA's referred to in (a) above; (c) the acceptance of progress claim certificates and the presentation for payment of the cheques referred to in (b) above without complaint; (d) the delivering to the Defendant by the Plaintiff of its final claim under the contract which was premised upon and reflective of an acceptance by the Plaintiff of the contract price adjustments, progress payment certificates and payments referred to above. The agreement was oral and was constituted by conversations at the site offices of Hudson Conway between John Holland on behalf of Hudson Conway and Ron Begbie and James Craige of the Plaintiff. Particulars of the variations, the corresponding amounts agreed and the corresponding dates on which agreements were was reached are set out in Schedule 1 hereto."

[27]

(a) After Kennedy Taylor submitted its variation claims the parties negotiated and settled them at meetings between Mr Holland on behalf of the agent of Crown and Mr Begbie and Mr Paneras and Mr Craige on behalf of Kennedy Taylor on specified dates in 1997.

(b) In the case of certain variations, the Crown witnesses had no recollection of agreeing the amount payable but agreement was to be inferred from the fact that the parties met and that Mr Holland, the Hudson Conway representative, noted a sum beside the variation on his list. This sum was paid and accepted by Kennedy Taylor.

(c) In the case of certain variation claims an analysis of them shows that they are duplications of other claims which have been agreed and paid.

(d) After Kennedy Taylor submitted its variation claims some were paid in full by Crown and the payments were accepted by Kennedy Taylor. Kennedy Taylor's present variation claims included enlarged claims which had previously been paid in this way. These enlarged claims should be dismissed because the earlier payment and acceptance determined this matter.

(e) After Kennedy Taylor submitted variation claims some were assessed by Crown or its consultants and the amount so assessed, being less than the amount claimed, was paid by Crown and accepted by Kennedy Taylor. Kennedy Taylor's present claims included claims which had previously been part paid in this way. Again, it is said that the payment and acceptance determined the entitlement of Kennedy Taylor.

(f) In August 1997 Mr Holland on behalf of Crown and Mr Begbie on behalf of Kennedy Taylor agreed that variations should be paid at rates set out in a certain price measurement document plus a 75% loading to compensate Kennedy Taylor for the difficulty of the work. Certain of the variation claims in which a greater difficulty factor loading was sought by Kennedy Taylor were reduced by Mr Holland to reflect the August 1997 agreement and Crown paid the reduced sum. Another change to the Kennedy Taylor variation claims which Mr Holland consistently and unilaterally adopted was the refusal to pay the sum of $50, $60 or $100 for drawings, manuals or references provided by Kennedy Taylor. He did this because he said these items were included in the original contract work and he had previously agreed this with Kennedy Taylor. These reductions, likewise, were not discussed and agreed with Kennedy Taylor as the claims were processed, but Crown consistently paid and Kennedy Taylor accepted the reduced payments and were accordingly bound by this.

[37]

At the conclusion of argument, I said that I was minded to use this occasion to make some general observations on the dangers attending the trial of preliminary questions and what the Court might expect of practitioners if this procedure is to play a useful role in the determination of building cases. On reflection, I will postpone these observations to another occasion. I will, however, say one thing. Where, in a managed list, a case is set down for trial, counsel for the parties expressly or impliedly assure the Court that the case is ready for trial and that they are satisfied with the state of the pleadings and particulars and with discovery. They will also be asked to provide an estimate of the likely duration of the trial. These are but minimal requirements for the proper arrangement of the Court's business. Where the trial is a trial of a preliminary question there is the further requirement that the question be formulated in a satisfactory way, that the evidentiary basis for the trial is understood and, further, that the resolution of the question is likely to assist the parties in the resolution of the litigation[6]. The judge managing the case is, to a very large extent, in the hands of the parties and their legal representatives in making an order for trial, for they are more familiar with the state of preparedness of the proceeding, with the issues which are really in controversy and with the evidence which is expected to be available. The Court is entitled to and does expect that counsel are sufficiently instructed to fulfil these responsibilities and that they do so. Where the trial date is lost or the trial aborted by reason of any failure by one party to fulfil these responsibilities and costs are thrown away as a result, it will not come as a surprise that the delinquent party should, in any event, bear those costs. Experience shows that an order for party and party costs will, even so, leave the innocent party bearing some burden of these costs thrown away. This being the case, there is much to be said for a costs order directed to remedying this deficiency, such as an order that they be taxed on a solicitor and client basis. I express no view as to whether such an order would be appropriate in the present case. It was not the subject of any argument before me.

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties