(8) The events in the period mid-March 2003 to 8 May 2003
81 Mr. Mowle attended in early 2003 to the preparation of bills of quantities and tender documents. He said he received instructions from Mr. Miller to do so in mid-January 2003, that is, approximately 27 days after Hopkins Consultants had received the construction certificate. He agreed that he prepared the bill of quantities for Stage 6 in late January 2003 - Stage 6 works representing a much larger portion of work than the "5A works" - some 10 times greater. The time that would have been taken to produce the bill of quantities in this period would plainly have been mainly devoted to the more extensive Stage 6 works. The bill of quantities for the Stage 5A was not at all extensive or complex and the evidence indicated that it would have required about two hours to prepare.
82 The bills of quantities and the tender documents for both stages were sent to Mr. Miller on 10 February 2003.
83 Mr. Mowle was asked in cross-examination whether the instructions to prepare the bills of quantities were given at a meeting in mid-January 2003, as Mr. Miller and Mr. Mowle stated, or later, after the receipt of the construction certificate dated 16 January 2003 for Stage 6. Mr. Mowle conceded that the meeting could have taken place at a later date.
84 Mr. Mowle was unable to offer an explanation, on the basis of instructions having been received by him on 15 January, why the bill of quantities for Stage 5A was not prepared until 5 February 2003. It was in late January 2003 that he prepared the bill of quantities for Stage 6 which, as earlier observed, was a considerably larger undertaking. Mr. Mowle agreed that the value of Stage 6 works was many times that of Stage 5A works.
85 The bill of quantities for Stage 5A was clearly delayed whilst the bill for Stage 6 was prepared, even though the latter was a much larger exercise (it was estimated to have taken a day to prepare the bill of quantities for Stage 6). Mr. Mowle conceded that, having received the construction certificate for Stage 5A on 15 January 2003, it would have been possible for him to have prepared the bill of quantities for that stage at any time after 15 January 2003 and, accordingly, there could have been a saving of time between about 15 January 2003 and 10 February 2003, the latter being the date the bills of quantities were sent to Mr. Miller.
86 The tender documents were in evidence (an exhibit to Mr. Mowle's affidavit, MSM-1, pp.38 and following). They related only to Stage 6 works. There were no tender documents produced for Stage 5A works.
87 By early 2003, the contractual time specified in special condition 2.1 was becoming tight. A party in the defendant's position, bound to act with "due despatch", would have had to consider providing instructions to those working for the defendant on Stage 5A to prioritise the works associated with that stage. These included Mr. Hopkins, Mr. Edwards, the surveyor and Mr. Lindsay, the sub-contractor.
88 Whilst Mr. Miller stated that he always requested Mr. Mowle to undertake Tebran's work as quickly as possible, the evidence indicates that he did not inform or instruct Mr. Mowle, Mr. Edwards or Mr. Lindsay of the time constraints arising under special condition 2.1. There was no reference in Mr. Miller's two affidavits to him having issued instructions to prioritise Stage 5A works over Stage 6. He made no reference to any requirement being made for Stage 5A works to be performed and completed before Stage 6 works or any other works were undertaken. Mr. Miller, however, contended in cross-examination that he in fact issued instructions to prioritise Stage 5A. Mr. R.D. Wilson of counsel, who appeared for the defendant, provided and relied upon transcript references: tt.155.30, 161.58 and 162.35. I consider Mr. Miller's evidence on the issue of instructions, in this respect, unsatisfactory. He, like Mr. Mowle, failed to provide any explanation as to why he had not referred in his affidavit to having given such instructions. On this important aspect of the matter, I am unable to accept Mr. Miller's oral evidence on this point as reliable.
89 Whatever be Mr. Mowle's reason for adopting the detention basin proposal, it cannot be said that the defendant pursued it with the required diligence or with due despatch.
90 The defendant had received a quotation for the Stage 5A works from Haire Civil Constructions Pty. Limited. Mr. Mowle conceded that that company had more heavy machinery and staff than was available to Mr. Lindsay, who was awarded the contract. Haire, he conceded, had the greater capacity to undertake the work for the Stage 5A detention basins. Haire's tender was a competitive one and, further, that contractor was immediately available to undertake work on the construction of the detention basins. It, however, was not in a position to immediately proceed thereafter with the Stage 6 works. It would appear from the evidence that this was probably the reason G.H. Lindsay was chosen over Haire.
91 The original Development Application approval contained Clauses 61 to 64. Clause 63 provided:-
"Stormwaters flow from the development site are to be controlled by structural measures such as stormwater detention systems to match the pre-development stormwater flow."
92 I have earlier referred (paragraph [54]) to the fact that Mr. Mowle conceded that, when attending to the detention basin proposal in respect of Stage 5A following upon Mr. Davies' facsimile of October 2002, that in the period October to December 2002, he was mindful of the requirement under Clause 63.
93 I consider that the following evidence in cross-examination by Mr. Trebeck reveals that the detention basin proposal was substantially driven by an opportunistic factor associated with the need to attend to the requirement under Clause 63 and which favoured the defendant, but which was not necessary for meeting Council's requirements for Stage 5A:-
"Q. And when the suggestion from the Council in their facsimile of 10 October 2003 came through in paragraph 6, that you might have to consider putting fill over the sewer pipe, it occurred to you that a little dam a metre high would be constructed as a result of those words, if you carried out the alternative suggestion proposed by Council? A. That is what I said earlier today in response to your question.