Plaintiff v Defendant

Plaintiff v Defendant - [2007] VSC 409 - VSC 2007 case summary — Zoe

[15]

11 The written notification dated 2 August (but faxed on 6 August) refers to previous "verbal advice" (a statement which is not disputed). In such circumstances I consider the giving of the written notice to have been "forthwith" as contemplated by the contract: BMD became aware of something, gave prompt oral notification, invited the Superintendent and VicUrban itself (through Mr Leonard) to assess the situation themselves, was required to undertake further investigations, made those investigations, and then sent the formal written notification. Provisions like clause 12.2 must be construed in accordance with business common sense: see McCann v Switzerland Insurance Ltd;[6] Pacific Carriers Ltd v HBP Paribas;[7] Toll (FGCR) Pty Ltd v Alphapharm Pty Ltd;[8] Maggbury Pty Ltd v Halfele Australia Pty Ltd.[9] A stricter construction would encourage, if not compel, contractors to be more concerned with anxiously satisfying a formal temporal requirement of notification rather than to explore the underlying needs and circumstances of the situation. The learned authors of Building and Construction Contracts of Australia[10] suggest that the word "forthwith" strictly means "immediately". The dictionary definition of "forthwith" does give "immediately" as one meaning. In many circumstances "forthwith" may be used to mean "immediately", but the task of construction of contracts is not that of determining what meanings words could have but, rather, which of the possible meanings of a word is the one which the parties intended.[11] The dictionary definition of "forthwith" also includes "without delay" as a meaning, and I think this better conveys the sense in which the word was used in this contract.[12] Whether the notices were sent "forthwith" in this sense, is, of course, dependent upon the facts and context. The notice dated 2 August 2002, on the facts and in the context in which it was sent, as I have set out above, was, in my view, sent "forthwith"; that is, was sent without delay and as soon as reasonably practicable or as soon as reasonably possible in all the circumstances.

[30]

20 I am unable to accept BMD's argument that the 2 August 2002 notification was a sufficient notification of latent conditions in the Northern, the Avenue and the Eastern Stockpiles. Those three stockpiles are not as close to the Southern Stockpile as were the Central Stockpile and the Lake Base Stockpile, nor is the contention open on the pleadings. The latent conditions said to have been encountered were pleaded in paragraph 28 of the statement of claim more broadly than, and without reference or limitation to, the Southern Stockpile. The same is true of the pleading in paragraph 29 about the time and place of encountering the latent conditions. That is to say that those paragraphs are consistent with a contention that the notification of 2 August 2002 was relied upon in the pleadings to extend beyond the Southern Stockpile into what might fairly be understood to come within the "quarry floor". The particulars in sub-paragraph (b)(i) of paragraph 29 in the statement of claim, for example, refer to the Quarry Floor Stockpile and not to the Southern Stockpile. Paragraph 34 of the statement of claim, however, is the only paragraph in the pleading which purports on its face to identify the written notifications. Written notification of a latent condition is a material pre-condition to entitlement under the latent conditions provisions of the contract. The particulars to paragraph 34 identify the correspondence relied upon as written notice under the contract. Paragraph 36 of the pleading is to the same effect in relation to written notice of the number of days extension claimed under the contract. It is clear from the pleading that the latent conditions claimed in the areas known as the Northern Stockpile, the Avenue Stockpile and the Eastern Stockpile were not contended to have been incorporated in the notification of 2 August 2002. The evidence of Mr Waterson also shows that he sought to give separate notices in respect of latent conditions in the Northern Stockpile, the Avenue Stockpile and the Central Stockpile. His evidence may not, of course, determine the proper construction of the statement of claim, but it may have the effect of there being no evidence to support the pleading as counsel for BMD suggested in final submissions that it should be construed.

[31]

21 It is not necessary for me to consider whether, in any event, VicUrban is now estopped from relying upon strict compliance with the contract. However, if it were necessary for me to do so, I would find that it was estopped in respect of the description of the extent of the latent condition. A meeting occurred on 6 August 2002 between Mr Waterson, representing BMD, and Messrs Taber and Leonard, representing VicUrban. Mr Taber was VicUrban's General Manager and General Manager of Business Operations, and Mr Leonard was VicUrban's Constructions Operations Manager. Mr Waterson made notes of the meeting and recorded Mr Taber as assuring BMD, in effect, that the strict terms of the contract were to be put aside (at least in respect to the issues then under consideration). Mr Waterson's notes were prepared to report to, and to inform, others within BMD and I accept the notes to have been a faithful statement of his recollection of the meeting. The notes were contemporaneously made and were not undermined by the evidence of the other participants at the meeting or by the cross-examination of Mr Waterson. Mr Taber said that he had called the meeting and that one of the reasons why he had done so was to invite a renewed spirit of co-operation after some complaints had been made by BMD senior management and hopefully to get improved co-operation throughout the site. Another reason given by Mr Taber was to emphasise to BMD that the quality criteria in the specification was absolute and would not be compromised. His evidence concerning Mr Waterson's contemporaneous notes was certainly not that of rejection of accuracy or such as to cause me to doubt that Mr Waterson's was a faithful account of the matters recorded and conveyed. I am confident that Mr Waterson would, in an internal BMD memorandum, have been more forthright and blunt if the meeting had gone less favourably than he recorded. I am also satisfied that the outcome of the meeting, and the assurances given to BMD through Mr Waterson in the context of the meeting, were relied upon by him and by BMD. It would be wrong in such circumstances for VicUrban to rely upon strict compliance with the notification provisions if I had not found that notification had been given beyond any strict boundary of the Southern Stockpile.[14]

[57]

32 The test to determine what BMD should reasonably have anticipated is to be judged by what a competent and suitably qualified contractor would expect to encounter by way of physical conditions in the execution of the works: Ryde City Council v Transfield Pty Ltd.[18] Mr Clark's opinion was that a reasonable contractor would (after examining the Boral file) have been alerted to the possible differences in the natural surface level from those shown on the maximum extent of excavation plan. Mr Raisbeck, on the other hand, an experienced geotechnical engineer also called by VicUrban, said in cross-examination that a contractor would need to have had reasonable expertise in geotechnical engineering or to have hired a technical engineer to analyse the contents of the Boral file, to have found something of geotechnical significance. He said that a contractor looking at the Boral file would have been unable to find something of geotechnical significance but that a contractor who engaged a geotechnical engineer to look through the file may have found something of geotechnical significance. He accepted that the reason that two engineers with knowledge of earthworks projects (namely, Messrs Waterson and Hawkins) would not be expected to find anything of geotechnical significance in the file was because they were not geotechnical experts. The material in the Boral file itself does not contain information in a form that, without more, would make a reader realise or apprehend that the information on the plan of maximum extent of excavation was wrong or needed to be re-examined. The evidence of Mr Raisbeck is, in my view, significant as an expert in the relevant field of expertise and knowledge giving evidence to the effect that a reader of the information in the Boral file would need to have that expertise and knowledge to realise the potential significance for an earthworks contractor of the information in the Boral file. It is telling that a person with specialised knowledge (Mr Raisbeck) believed that it is necessary to have that expert knowledge to appreciate and evaluate the significance for an earthworks contractor of the information in the Boral file. VicUrban was not able to point to any particular fact or matter on the face of the Boral file which would cause a non-expert in the position of a contractor to seek the assistance of a geotechnical engineer. As against this BMD had information which pointed to different natural surface levels from those actually encountered. With all the caveats and qualifications which that information may have had, it is information which had probative value to an earthworks contractor: it was detailed, professionally prepared and honestly proffered by VicUrban as being of assistance. Accordingly I do not consider that BMD should reasonably have anticipated the information which might be found in, or deduced from, the Boral file after expert investigation. More particularly, I do not consider that BMD should reasonably have anticipated that the natural surface levels were different from those shown on the maximum extent of excavation plan even allowing for the qualifications of accuracy and cautions in the materials and reports conveyed to them to assist them in their tender.

[98]

59 BMD claims $87,350, as reasonable costs under clause 40.5(c), as a result of what is described in its submissions as the change in topography in the area of the Northern Stockpile. This sum was calculated by Mr Waterson as the addition of $49,950 for additional bulldozing and handling, plus $37,400 for additional screening operations of 93.5 hours. These appear to be his estimates based upon the actual costs incurred as a result of the latent condition notified by letter dated 4 June 2003. That letter notified the Superintendent of a latent condition described as being that the extent of excavation required to expose the natural surface in the area defined as the Northern Stockpile was shown to be significantly lower than the levels anticipated at the time of tender. The additional work said to be required in the letter was additional excavation of overburden material and additional benching and access operations due to the steep nature of the excavation face compared to the design levels. By letter dated 15 August 2003 the Superintendent was notified by Mr Waterson that the additional excavation and fill in the Northern Stockpile was complete and submitted a basis and quantification of time and costs associated with the additional work. The additional costs claimed in that letter were for an amount different from that stated above. It claimed $82,319 for what was described as additional earthworks operation utilising dozers to push the additional material across a steep face to an area where it could effectively be excavated and processed. The explanation given for this methodology was that the topography of the area where the additional material was located was narrow and very steep and did not allow excavation and processing in situ as anticipated. This resulted in double handling of the material which was more costly than the bulk earthworks rates calculated using the lump sum price. The additional works calculated by BMD in its letter of 15 August 2003 involved an additional 60,977 cubic metres of materials. On that day the Superintendent directed BMD to remove some further material as a brick had been found in the exposed surface of material previously identified as natural material under the stockpile indicating that there was some additional overburden that needed to be removed.

[108]

68 I do not consider this claim to arise from the latent condition constituting the over excavation. It may be that the over-excavation resulted in a need to deal with the additional material but it does not follow that the additional material needed to be dealt with as Type A. Even if I were to accept that the percentage of oversized material may have been greater than had been anticipated and also that the compaction rate may have been higher than could reasonably have been anticipated (both matters which I will consider later), it does not follow that the additional material needed to be dealt with as Type A material. It is incumbent upon BMD to establish the causal and necessary link between the over excavated amount and the additional cost said to arise from its processing. There is nothing about over excavation as such that would necessitate its processing as Type A material. BMD's argument appears to be not so much that the over excavation required production of Type A material, but that the quantity of the over excavated material which was oversized led to it having, in the circumstances (and in particular in the context of its screening operations), no option other than to process the additional material as Type A material. I am not satisfied that this follows, or has been established, as a consequence of, and as flowing from, over excavation. If BMD is entitled to this claim it must be as a consequence of the separate latent condition which it has claimed relating to oversize material. The management and processing of the material was always an obligation of BMD under the contract. Mr Waterson's witness statement contained detailed analyses designed to show that both the volume and type of excavated material had a direct impact on methodology, or, as he also put it "the need to use crushing material to produce Type A material". Whilst I can see how the combined effect of "volume" and "type" may, on his analysis, lead to a need to produce Type A, I am not persuaded that the crushing is a necessary consequence of over excavation alone: that is, without what was being over excavated also being oversize. Especially since (as I explain later) BMD had allowed for the risk of the need to crush, was contractually obliged to crush (at its expense if required by the Superintendent), had taken that into account in its tender, and had a positive obligation to manage and process the material. Accordingly, I do not allow this claim unless it is to be allowed as part of the claimed latent condition for oversize rock considered below.

[116]

75 The contractual obligation imposed upon BMD by the second paragraph in clause 35.5 was, in respect of each of the four latent conditions notified, to make a written claim for an extension of time for practical completion within 28 days after the delay occurred. That claim (namely for an extension of time for practical completion) could, but need not, also give notice of the number of days extension claimed. That is made clear by the sixth paragraph in clause 35.5 which expressly provides that with any claim for extension of time for practical completion, "or as soon as practicable thereafter", the contractor was to give to the Superintendent written notice of the number of days extension claimed. I have, for the reasons set out above, concluded that the four letters relied upon are each fairly to be read as making a claim for an extension of time. The next issue is, then, whether written notice of the number of days extension claimed was made either in each of the letters or as soon as practicable thereafter. It is plain that the number of days extension were not claimed in each of the first three notices relied upon but that the letter of 17 November 2003 plainly claimed 0.83 months extension of time for delay and disruption costs. The written notice of the number of days extension claimed in respect of the three earlier latent condition claims were, however, given as soon as practicable after the making of the claim for an extension of time for practical completion in the circumstances which existed at the Niddrie Quarry site. 4.1 months extension was the period of time claimed in respect of the Quarry Floor Stockpile by letter dated 16 June 2003. 1.1 months extension was claimed for delayed practical completion by letter to the Superintendent dated 15 August 2003 in respect of the latent condition notified for the Northern Stockpile. 0.32 months extension for the date for practical completion was claimed by letter dated 28 July 2003 to the Superintendent in respect of the latent condition notified in respect of the Avenue Stockpile. I accept Mr Waterson's evidence concerning the notification of the periods of delay claimed. The evidence establishes that the Superintendent was informed of the progress of works, of the discovery of the conditions promptly as they were discovered, and that the periods of delay claimed for practical completion were notified as soon as the periods of time were sufficiently ascertainable by a process that made the quantifications reliable.[25]

[128]

87 The first Golders report was a review of the site to assess "the likely percentage of basalt rock available in the stockpiles" that would be suitable for crushing and use within the site. Table 1 to that report (at p 2) identified the fill by categories in which "cobbles" were defined as material between 60mm to 200mm in size and "boulders" were defined as material greater than 200mm in size. The summary to the report referred to conclusions drawn by MPA Williams & Associates ("MPA Williams") from 1989 site investigations that stockpile fill material, comprising a high percentage of basalt, cobbles and boulders, was likely to comprise about 40% of the overall available stockpile volumes at the site. The summary in the first Golders report went on to state that investigations for the Eastern Stockpile indicated that the cobbles and boulders category comprised about 42% of the overall stockpile thickness investigated. Table 8 to the report set out a summary of expected proportions of cobbles and boulders in each stockpile comparing them with the proportion of cobbles and boulders as an average of the MPA Williams estimate. It showed a variation which the author of the first Golders report estimated in general terms as overall "about 35% of the fill material" in stockpiles A to E being likely to comprise basalt cobbles and/or boulders (as defined). The first Golders report concluded by noting that Hyder Consulting (Australia) Pty Ltd had assumed for the project design "then" in contemplation (that is, at the time of making the statement) that 40% of the available site stockpile fill would comprise cobbles and boulders, of which 20% would be suitable for crushing into product suitable for the project requirements. Golders themselves concluded that they would expect that at least 60% of the basalt, cobbles and boulders would be of sufficient hardness to be suitable for crushing. The first Golders report, therefore, has some significant variation of the expected percentages of cobbles and boulders (as defined) expressed to range from between 35% to 40%.

[135]

90 It was submitted by BMD that a reasonable contractor was entitled to rely upon the conclusion, which is confidently described in its written submissions as "unequivocally" arrived at by Golders in Table 8 of the first Golders report, as to the likely composition of the fill material in the stockpile, namely, that "it appears that overall, about 35% of the fill material in stockpiles A to E is likely to comprise basalt, cobbles and/or boulders" without (as the submission contended) being required to undertake further enquiries or to engage geotechnical engineers to seek "to second-guess that conclusion". I do not agree. BMD relies upon the pre-eminence of Golders and their unique position in relation to the site as, I think, may be accepted. Mr Raisbeck gave evidence that Golders had been progressively conducting geotechnical investigations on the site since 1994 and were in possession of geotechnical investigations conducted by other well-respected geotechnical engineers as, indeed, was disclosed in the first Golders report. Golders had been engaged by VicUrban by the time of tender as part of the team of consultants working on the project for some 12 months. The first Golders report was an extensive document and had been provided to the tenderers for the stated purpose of assisting them in their "pre-tender activities". The report had been internally reviewed by others within Golders before it was published. Mr Goad, a civil engineer and Victorian Manager of Golders, said in cross-examination that the first Golders report was provided to tenderers as "a convenient reference point". The second Golders report had also been provided as part of the tender information and had been prepared after Golders had decided that further investigation was warranted in relation to material in excess of 600mm particle size. Golders had formed the opinion by the time of the second Golders report that it had prepared all of the geotechnical investigation that it considered was required for the project to go ahead. Mr Bollen accepted in evidence that Golders had been retained because of its recognised position in the industry as a leader and expert in its field and having developed a bank of knowledge in relation to the site which other possible consultants did not have. He also accepted that it was made clear to tenderers that this extensive information had been prepared by reputable consultants, was provided for their assistance and was all part of an endeavour on the part of VicUrban to achieve the lowest contract price and to remove risk to the contractor.

[136]

91 BMD also draw attention to the information expressly contained in the two reports. The covering letter to the first Golders report stated that the purpose of the compilation report was to provide information in support of tender documents for the proposed construction contract for the development. The first Golders report included a report of the stockpile material types dated 2 November 1998. The "stockpiles material types report" was expressed as a review by Golders of "material types expected within the stockpiles located on the site of the former Niddrie quarry". No other report summarised the geotechnical investigations and made conclusions about the expected grading of materials in the stockpiles. The review included reference to the results of stockpile investigations prepared in a number of reports, including various reports prepared by Golders and the report prepared by another geotechnical consultant, MPA Williams to which I have previously referred. The review defined cobbles to be "rocks of 60mm to 200mm" and boulders to be "rocks of greater than 200mm". It noted in relation to stockpile C that "if the stockpile comprises overburden materials from the adjacent eastern quarry extension area as expected, then the fill stockpile materials may become finer with increasing depth". Mr Raisbeck accepted that this could indicate to a tenderer that Golders considered it possible that the actual percentage of cobbles and boulders would become less with increasing depth. The results of the review were then said to have been presented in a concluding table headed "Summary of Expected Proportions of Cobbles and Boulders in Each Stockpile". Under that table Golders stated that it appeared to them that an overall percentage of 35% of the fill material in stockpiles A to E is likely to comprise basalt cobbles and/or boulders. Under the classification system used in the report cobbles were materials between 60mm and 200mm and boulders were materials of 200mm or more which meant that some 35% of the materials were expected to be 60mm or greater. This conclusion, as BMD noted, was not expressly qualified in any way. Mr Raisbeck accepted that on the basis of this conclusion "it would not be unreasonable to assume that something less than 35% of overburden contained particles less than 100mm". The first Golders report was of limited value in the assessment of the amount of overburden material that would be greater than 600mm, being the maximum dimension for Type B material, because the particle size classification system used specified all rock over 200mm in size as a single percentage and did not provide further information identifying the percentage of material smaller or larger than 600mm. The purpose of the second Golders report was to assess qualitatively the percentage, size and range of, oversize material greater than 600mm. The second Golders report did not expressly withdraw or qualify any of the conclusions stated in the first Golders report.

[140]

95 Expert evidence was also led about what a reasonable contractor might conclude or do in the circumstances of BMD. Neither Mr Clark nor Mr Raisbeck considered that a reasonable contractor would simply accept the conclusions of the reports constituting the Golders compilation report as accurately and reliably describing all of the material in the stockpiles and the distribution of materials throughout them. Mr Raisbeck was of the opinion that a reasonable geotechnical engineer would have correlated the data on particle size distribution in the Golders compilation and assessment reports and would have provided BMD with an overall interpretation. In his opinion the variability of the various fill categories would have provided an opportunity to estimate the amount of scalpings from the fill material and whether these could be used in other areas at the site or whether they needed processing to meet the specified fill-type gradings. Mr Raisbeck undertook such a task for the purposes of the trial and, after interpreting the combined MPA Williams and Golders test pit data, concluded that an indicative average cobbles and boulders content (that is, greater than 60mm) would be 45.7% of the Eastern Stockpile compared with the 35% said to have been adopted by BMD. Mr Mostyn, an expert witness called by BMD, disagreed with some of the conclusions arrived at by Mr Raisbeck. He was prepared to conclude that about 35% of the fill material in stockpiles A to E was likely to comprise basalt, cobbles and boulders as defined. I found both Mr Mostyn and Mr Raisbeck to be impressive witnesses, each respecting the other and, whilst disagreeing with each other's conclusions, acknowledging that a reputable expert in the same field held a contrary view. It is not uncommon for experts to differ in their conclusions. It is perhaps also common for experts to believe that a contrary view was not tenable notwithstanding that it was held by a reputable member of the expert's discipline. Such differences are not uncommon amongst lawyers. In any event the contractual tests of what should reasonably have been anticipated by BMD, or what could reasonably be expected to be associated with the site, et cetera, as provided for in clause 12.1A, are ones for me to decide, albeit with the benefit of such expert opinion on matters that may assist in the conclusion that do not, of course, amount to impermissible evidence of the ultimate issue. I do not think I need to reject Mr Mostyn's views about the reliability of the Golders reports in order for me to conclude that a reasonable contractor in BMD's position could not reasonably have anticipated (and as it happens did not reasonably anticipate) the precision which the Golders reports are now said by BMD to contain. Putting aside the expert evidence that the parties have put on at trial, the contemporaneous expert opinion on oversize was consistent with the evidence of Mr Raisbeck rather than Mr Mostyn. Mr Finlayson, a geotechnical engineer and Golders project manager, was asked in September 2003 by the Superintendent to investigate BMD's allegation of greater than reasonably anticipated oversize. He reported to the Superintendent that the percentage of rock that could be inferred from the tender data to be greater than 600mm was 16% to 17% and to be greater than 100mm and greater than 600mm was 42% to 44%. During the project, the parties agreed to get a joint, albeit non-binding, assessment of the percentage of oversized rock that could reasonably have been anticipated in the stockpiles of overburden on the site at the time of calling tenders. The parties agreed to retain a geotechnical engineer, Coffey Geosciences Pty Ltd, whose senior principal (Dr Ian Johnston) reported on 21 August 2003 that the percentage of rock that could reasonably have been anticipated as oversize was 42%.

[155]

99 The Superintendent's evidence was that by March 2003 work was being undertaken by both Golders and BMD in relation to the possible redesign of the finished surface level. Concerns had been raised about the balance of materials on site to complete the works to the anticipated design finished surface level and in particular the requisite amount of Type A fill which was shown in the drawings as being at least five metres in most areas but six metres in some. The issue was discussed at a site meeting on 7 March 2003 at which the Superintendent instructed BMD to commence stockpiling Type A material in the cul-de-sac area pending the finalisation of a review of materials balance and any redesign of the site. Mr Hawkins' evidence is that the instruction to stockpile the material related only to material that could have been placed on the existing Type A pads in the cul-de-sac and the "overflow" natural surface area adjacent to the cul-de-sac. Mr Hawkins' evidence in his witness statement was that the direction to stockpile Type A material was not a "necessity" (contrary to what he says was BMD's assertion) but a precautionary measure taken to preserve the Type A material being produced by BMD's screening process at the time in the event that there would be inadequate material to produce Type A to complete the project. It was also his evidence that at the time that BMD was stockpiling Type A material in the cul-de-sac (namely, early March to mid and late April 2003), areas of completed Type B fill existed where Type A could possibly have been placed. The decision to stockpile rather than to place Type A in those areas was made pending the finalisation of the redesign as the areas ready to take Type A material were potentially affected by the redesign that was being considered at the time. Mr Hawkins explained in his witness statement that part of his reasoning behind the instruction was a reluctance to instruct BMD to place the Type A in those potentially affected areas at that time and then, if the redesign did not lower the Type A layer in that area, later need to direct BMD to rework the areas by scraping up to two metres of Type A from the finished surface.

[173]

113 It is not strictly necessary for me to consider the many other interesting factual disputes in relation to this variation, but it may be of assistance if I make one or two general observations about some of them. The terms of the specification appear clear to me but, if it be accepted that there was some ambiguity about the matter, the proper course was to pursue the process provided for in clause 8.1 of the contract for the resolution of ambiguities and discrepancies. That process might have resulted in BMD having an entitlement under clause 40.5, but it was not pursued. The process not having been followed, it is, I think now not open to BMD to seek as a variation something which, on my view, requires the resolution of what must either be described as an ambiguity or a discrepancy within the meaning of clause 8.1: James Cook University v Walter Construction Group Ltd.[32] Secondly, a requirement that the compacted lift did "not exceed" a one metre thickness did permit a tolerance below one metre. Thirdly, I accept the evidence of Mr Clark and Mr Raisbeck that whatever might be "best industry practice" in general it has not been established to apply to the work done at this site because of its particular features and its intended purpose of residential development. I accept that this site presented a specific set of standards and requirements for achieving a higher quality of fill than might normally be achieved of lesser fill thicknesses and lower design standards for filling works such as embankments and roads. Accordingly, I do not regard BMD's recourse to "best industry practice" as being a sufficient answer in this case. The design brief for the project was to provide a foundation to allow construction of standard footing systems for a residential development. This requirement was endorsed by the Moonee Valley Council which required confirmation of compliance with the specification since it was the council which was to assume control and responsibility for the infrastructure areas located within the final development precinct. Stringent requirements for compaction were required to meet these aims. In any event, BMD has not discharged its burden of showing that "best industry practice" was appropriate in a project such as this: the evidence of Mr Clark and Mr Raisbeck that it was not appropriate was not displaced by BMD. Fourthly, I do not regard the requirement for 3-D digital terrain modelling as being a relevant variation. Clause 5.4.4.1 required verification and the Superintendent could, I think, choose what to accept as verification. Furthermore, surveys of placed fill and preparation of the digital terrain models were performed by BPD, not BMD, at VicUrban's expense and there seems no evidence that these surveys delayed BMD's ongoing work. Fifthly, the claim for delay and extra costs was some 15 months after the alleged direction and BMD has not discharged its burden of proof that it gave notice within 28 days "after the delay occurs".

[207]

131 Mr Waterson hand delivered BMD's progress claim 21 dated 5 December 2003 to the Superintendent on that day. It claimed $11,733,796.66 (inclusive of GST) for works completed to 30 November 2003. Mr Waterson asserted in his written statement that the Superintendent failed to issue a payment certificate to BMD within 14 days after 5 December 2003 but that BMD only received from the Superintendent's office Payment Certificate No. 22 for $1,931,699.80 on 13 January 2004 (for BMD's progress claim 21) albeit that it was dated 19 December 2003. BMD's submission on this point depends, in part, upon an asserted failure by the Superintendent to provide the payment certificate by 29 December 2003 not to BMD but, rather, both to BMD "and to the principal". The facts enable me to infer that the Superintendent issued a payment certificate to the principal by 29 December 2003 but there is dispute about whether it was issued also to BMD by then. In that regard, I have considerable reservations that the proper construction of clause 42.1 be that the entitlement to payment on a Superintendent's certificate requires the issuing of the certificate both to the payee and to the payer. There is certainly an obligation for the payment certificate to be issued to both and it is desirable that both payee and payer should be informed by the Superintendent of a decision about the quantum to be paid, but the obligation to pay arises "within 14 days [as defined] of issue" of a payment certificate and, on one view, that occurred when received by the party obliged to pay. The contract is expressed in terms of the issue of a certificate as if it was one act only. In reality the Superintendent is required to "give" (to use a neutral word) a certificate to both parties. It is, in my view, a natural reading of the words that the Superintendent is required to effect the issue of two separate, but identical, certificates and that the issue of one is complete when received by the person who becomes liable by its receipt. The contrary construction advanced for BMD as contractor may be convenient on this occasion but would in many cases produce unfairness to the party entitled to receive payment. This construction assumes that the issue of a payment certificate does not occur until two (not one) pieces of paper are received by two different people. It would carry the curious consequence that the party otherwise obliged to make a payment, and who has received the piece of paper purporting to be a certificate to that effect, is able to avoid liability by showing that the person entitled to receive payment had not also received the piece of paper to that effect. I am not persuaded to construe clause 42.1 in that way and conclude that the certificate was issued by the superintendent in time.

[230]

143 There were two oral representations affirmatively pleaded and relied upon by BMD. The first of them was a colourful statement attributed to Mr Bollen at a meeting on 18 January 2002. Three of the many people who attended that meeting gave evidence on behalf of BMD and two said that the statement was made. Mr Tuttiett, who at the time had the task of preparing the tender, did not recall Mr Bollen making the colourful statement alleged. The two VicUrban representatives who attended the meeting, and who gave evidence, positively said that the statement was not made. The two BMD witnesses who asserted that it was made did not make a diary note or any other record of the statement and the lack of any recollection by Mr Tuttiett, coupled with the denial of the other two witnesses, leaves me with substantial doubt about whether it was sufficiently accurately remembered for the evidence of it having been made to be reliable. More importantly, however, is that it seems an improbable statement to make on the terms remembered in view of the many qualifications and cautions and the trouble which the parties went to in defining precisely what would constitute a latent condition for their contract on this project. The confidence which the statement seeks to attribute to VicUrban about the correctness of the quantities is inconsistent with the very terms of the contract which seeks to leave the risk with BMD rather than with VicUrban, and which provides an objective measure if those very quantities prove sufficiently inaccurate as to constitute a latent condition. It also seems unusual that there is no evidence of anyone at BMD asserting the statement soon after it became clear that a disagreement had arisen. Finally, in respect of this oral representation, I think VicUrban correctly relies upon Jones v Dunkel[47] in noting that there were two other BMD representatives who attended the meeting neither of whom were called to give evidence about that matter and that in those circumstances an inference can be drawn from their absence that their evidence would not assist BMD in respect of what in this proceeding had been maintained as an important plank in its case. The second of the oral statements relied upon, said to have been made on 28 February 2002, does not appear to go to a representation of a kind that could meaningfully be regarded as false or misleading and, indeed, no submissions were made in respect of that statement in BMD's written or oral submissions.

[238]

147 In light of the observations in Seltsam, and the cases referred to, I would have admitted paragraph 14 in evidence but do not think I could confidently have placed much reliance upon the statement in the terms made. The proposed evidence about a hypothetical which might, but did not, occur, will often require more than its being said for it to be probative. There is nothing in the way in which paragraph 14 of Mr Fogarty's statement was couched which gives me confidence that it was more than what he had convinced himself might have been the case if events had been other than as they were. There is, for example no objective fact, matter or circumstance which gives confidence in adopting the view that his subjective belief is likely to be what would have occurred had events been different. The assertion that BMD would not have tendered at all is not given weight or substance by reference to facts which enable me to evaluate independently of his subjective statement whether the conclusion he asserts is one which I should accept as likely, probable or independently supported by objective facts. Indeed, the hypothetical assertion that BMD might have submitted a "conditional tender" to the effect that it would have a right to "further payment should the natural ground levels provided by VicUrban prove to be inaccurate" is inconsistent with the evidence that such a tender would not have been a valid tender. The evidence in issue in Seltsam was given orally rather than through a written witness statement which had had the benefit of preparation, reflection, legal assistance and, perhaps, advice from counsel. In such circumstances a Court should expect, at very least, that statements of a state of mind such as that proffered by paragraph 14 in Mr Fogarty's witness statement, have objective reference points which give confidence that weight should be given to the subjective evidence. The statement may be admissible, but if it is to have weight (that is, if the statement is to persuade a decision maker, with all the consequences which may flow to the rights, duties and obligations of other people) then it is desirable that the assertion of what "someone would have done" should be supported upon objectively verifiable evidence that gives the assertion force and substance.

[239]

148 It is also unnecessary for me to consider the alternative basis for the claim of loss and damage sought by BMD under the Trade Practices Act.[53] Paragraph 116 of the statement of claim pleaded, simply, that by reason of the alleged misleading and deceptive conduct, BMD had suffered loss and damage in the amount either of $6,301,816 or, alternatively, $5,565,787. The particulars relied upon were said to have been set out in amended schedules 2 and 3 to the statement of claim although, as became clear only on the last day of the proceedings, those particulars provided details of only the first of those two amounts. Late on the morning of the last day of the proceeding, day 36, counsel for BMD gave, for the first time, particulars of the alternative quantum of the claim. On 8 October 2007 a letter was sent to my associate for my attention seeking to substitute, without leave, the particulars which had been given for the first time on the last day of the proceeding (day 36) of something first pleaded some two years previously. It is inappropriate for particulars, evidence or submissions to be given by a unilateral communication other than in open court or as directed by a judge. The proper time and place to present evidence or argument is at the hearing.[54] Further material should not be filed without leave;[55] although some judges might not wish to deter the practice of putting in further written submissions which are delivered expeditiously, and are of substance, after the hearing.[56] The 8 October 2007 letter to my associate from BMD's counsel, perhaps predictably, produced a response from VicUrban's solicitors dated 11 October 2007 which, in my view, was also undesirable. They wrote requesting that they be kept advised about how I proposed to deal with the earlier letter. The 11 October 2007 letter concluded with the statement that "[s]hould His Honour be minded to take the plaintiff's letter and amended particulars into consideration when deciding the proceeding, the defendant would wish to be heard on the matter, particularly in regard to the lack of primary evidence supporting the particulars." It is undesirable for litigation to be conducted in this way and particularly undesirable for there to be any suggestion of an onus to be placed upon the judge, or the judge's associate, for any advance indication of any aspect of a reserved decision. If a matter arises after the conclusion of a hearing that is of sufficient importance it may be necessary for formal application to be made by one of the parties to resume the hearing before judgment.[57] It is not appropriate for the parties to seek advance or conditional indications from the judge, or the judge's associate, of a reserved decision, but for them to evaluate risks and to take such action, or make such application, as they may be advised to make. The 11 October 2007 letter prompted, again, perhaps predictably, a letter dated 15 October 2007 this time from the plaintiff's Brisbane solicitors, purporting to explain the "Amended Particulars" and concluding with a denial of any "alleged" "lack of primary evidence" "as asserted" "giving rise to any entitlement to the defendant to be heard further on the matter." In any event, it has not become necessary for me to decide either whether leave to file the substitute particulars should be given (notwithstanding that no leave was sought by counsel for BMD and that no explanation or reasons have been given in support of leave being granted), or whether VicUrban should be heard on the asserted lack of primary evidence (notwithstanding that no application to be heard was made), or whether it is appropriate for damages to be awarded under one or either of the bases sought under s 52.

[252]

156 VicUrban does not dispute that a site variation was made, but contends that it was made necessary because BMD had failed in its various obligations or warrantees bearing upon its duty to manage the resource so as to ensure that the minimum five metre layer of Type A fill would be available for the finished capping layer as evidenced in the drawing attached to the contract and the discussions at the commencement. However, I am unable to conclude in VicUrban's favour either that BMD failed in its duties or that any failure was the cause of the contractual variation effected by the Superintendent's site instruction numbered 122. The factual circumstance primarily occasioning the need for a redesign of the finished surface levels, and which I find relevantly to be its cause, was the shortfall of materials available to be placed. There may have been some material dealt with other than as VicUrban, or the Superintendent, might ultimately have wished, but the primary cause for the need to redesign the surface levels was that there was not sufficient material for placement. Essential to that circumstance was the compaction factor achieved on the site. It was important to the project that no additional fill material be brought onto the site from outside sources. Clause 5.2.2.1 in the general description of works in Appendix 8 to the contract provided that the importation of additional fill material from outside the site was not allowed without the prior written approval of the Superintendent and no additional fill was ever imported onto the site. The design of the works had assumed a compaction factor in the order of 0.925 or 7.5% whilst that actually achieved was in the order of 0.77 being a difference of some 23%; that is, that the effect of the compaction factor achieved meant that there was less material available when placed. Mr Hawkins accepted in cross-examination that the difference between the assumed compaction factor and the compaction factor achieved was "around" 23%.

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