Sides Engineering Pty Ltd v Energetech Australia Pty Ltd

Paragraphs 11(c) and (d) of the Amended Statement of Claim 9 Paragraph 11 of the Amended Statement of Claim claims: '11. Within 1 week of the event pleaded in paragraph 9, the Applicant satisfied the notification requirements of Clause 30.1.3 of the Contract pleaded at paragraph 8(c). PARTICULARS (a) Letter dated 29 October 2004 from Jim Polizos to David Hann read with the report of David Hann to which it refers. (b) Email sent 3 November 2004 from Graham van Damme to David Hann and others. (c) The information in the notification required by clause 30.1.3 was given expressly, or alternatively expressly and by necessary implication. (d) The Respondent by its representative acknowledged at the time of the suspension that it was not then possible to predict the extent of the delay.' 10 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: 'We assume that the Applicant relies entirely upon the email from David Hann dated 2 November 2004 referred to in the Affidavit of Van Damme dated 17 June 2005. If not, we ask that you confirm that you do not, and Please provide full particulars of the Respondent's alleged acknowledgement. Was the acknowledgment written or oral or partly written and partly oral? If it was written or partly written, please identify the writing by reference to the documents described in answer to the request. If it was oral or partly oral, please identify the parties to, date and location of, and substance of, any alleged conversation.' 11 In its response, Doyles, on behalf of Sides Engineering, responded: 'It is not appropriate to request the Applicant to detail by way of particulars the extent of the evidence on which it intends to rely in prosecuting its claim. The pleading herein is sufficiently clear and sufficiently particularised. In an effort to avoid an unnecessary motion as a consequence of the inefficient use of the Court's time however, please find attached copy email from David Hann sent on the 3rd November 2004 at 12.02pm to Graham Van Damme (Sides) and Mr. Jim Polizos (Sides) and copied to Mr. David King (JPK), Mr. Bharat Joshi (Energetech) and Mr. Kevin Boatwood (Sides).' 12 Apart from the sentence: 'Please provide full particulars of the Respondent's alleged acknowledgement', which is not now pressed, the requests contained in the consolidated request of 4 October 2005 are entirely proper requests for particulars and Sides Engineering must provide the best particulars it can in response to these requests. Because the abovementioned sentence is not now pressed, the second request should be read without the words '… by reference to the documents described in answer to the request', so that it reads: 'If it was written or partly written, please identify the writing'.

Paragraph 20 13 Paragraph 20 of the Amended Statement of Claim claims: 'It was a term of the Contract that the Applicant would be entitled to an extension of time within which to complete the works under the Contract for such reasonable period and on such reasonable terms as the Respondent reasonably directs if the Applicant: (a) demonstrates to the reasonable satisfaction of the Respondent that the delay was caused by, among other things, a suspension of the Contract pursuant to Clause 13 of the Contract; and (b) demonstrates to the reasonable satisfaction of the Respondent that the delay affects the critical path as shown on the Contract Program.' 14 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '20. You say that paragraphs 20 / 21 are to "be read together". You seem to allege that it is a "term" of the contract that there is no requirement that the Applicant give notification to the Respondent under Clause 30.1.3 of the Contract, which is equivalent to saying that it is a "term" of the Contract that the sub term 30.1.3 and the provisions therein do not apply. The pleading does not, with respect, make sense. We therefore repeat the requests again: Was the term pleaded in paragraph 20 of the Statement of Claim: (a) Express; or (b) Implied? If it was express, was it: (c) Written; (d) Oral; (e) Partly written and partly oral. If it was written or partly written, please identify the writing by reference to the documents described in answer to the request above. If it was oral or partly oral, please identify the parties to, date and location of, and substance of, any alleged conversation. If the term was implied, please provide full particulars of the facts, matters and circumstances the Applicant asserts give rise to that implication.' 15 In its response, Doyles, on behalf of Sides Engineering, responded: 'The pleading is sufficiently clear and the meaning of same is obvious.' 16 Whether or not the claim in par 20 of the Amended Statement of Claim is sufficiently clear and its meaning obvious, the requests contained in the consolidated request of 4 October 2005 are entirely proper requests for particulars and Sides Engineering must provide the best particulars it can in response to these requests. Again, I would strike from the third request the words '… by reference to the documents described in answer to the request above' because there is no relevant request above. The third request would therefore read: 'If it was written or partly written, please identify the writing'.

Paragraph 29 17 Paragraph 29 of the Amended Statement of Claim claims: 'At various times and during various periods between 11 September 2004 and 28 October 2004 and 28 October 2004 and 13 April 2005, inclement weather and, or alternatively, sea conditions, within the meaning of Clause 30.1.1.2 of the Contract, occurred. PARTICULARS (a) Conditions whereby waves were greater than 1.5 metres in height. (b) Hazardous weather and sea conditions. (c) Conditions whereby pursuant to an express term of the Contract the Applicant was obliged to cease or not proceed with any work which it considered would place the health and safety or property of any person at risk: Clause 21.2 of the Contract.' 18 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '29. We press requests 29(a), (b), (c) in their current form. We repeat the requests: Please provide particulars of and for each time and period within the dates pleaded when: (a) Weather and, alternatively, sea conditions with[in] the meaning of clause 30.1.2 of the Contract occurred; (b) Waves were greater than 1.5 metres in height; (c) Weather and sea conditions were hazardous and provide particulars of the hazards; and We amend request of paragraph 29(d) to read as follows: (d) (i) What conditions of the weather and sea does the applicant maintain comprised a hazard? The Respondent assumes that the allegation of the state of weather and sea conditions comprising an "hazard" are intended to refer to a potential danger to the health and safety or property of the applicant or its employees. Please let us know if that assumption is incorrect and the applicant is intending to refer to some other standard allegedly comprising the "hazard" referred to in paragraph 29(b) of the Statement of Claim. (ii) We assume that the allegation that there were conditions within the periods alleged in paragraph 29 where the applicant had to cease work because of some danger to the health and safety of its property or employees to be the same conditions which occurred in the same periods during which the Applicant maintains as relevant to the allegations in 29(a) and 29(b) of the Statement of Claim. Is this assumption correct? (iii) If that assumption is incorrect please provide particulars of the conditions, and each time and period within the dates pleaded in which the conditions occurred, which the Applicant will maintain as coming within the terms of clause 21.2 of the Contract.' 19 In its response of 31 October 2005, Doyles, on behalf of Sides Engineering, responded: 'Paragraph 29(a), (b), (c) We note that in our Replies dated 15th September 2005 and 27th September 2005 we referred you to the relevant sections of the Adjudication Application and the Affidavits filed in support of same which set out in detail the weather and/or sea conditions referred to in paragraph 29 of the Applicant's Statement of Claim. The said further and better particulars were provided notwithstanding that same are within your client's possession and knowledge. Given that sufficient particulars have been provided, the Applicant considers that this request is pressed simply for the purposes of delaying the Applicant's claim. To facilitate the Court however, the Applicant has prepared a Schedule of the weather and/or sea conditions referred to which the Applicant trusts will resolve any outstanding queries the Respondent might have and thereby avoid unnecessary argument in Court. Paragraph 29(d) The details sought in this request are clearly for evidence. The definition of "hazard" in your letter is noted but the Applicant asserts that it also covers conditions that are unpredictable or dangerous.' 20 The requests made in pars 29(a), (b) and (c) are entirely proper requests for particulars and Sides Engineering must provide the best particulars it can in response to these requests. In this regard, I do not think the Schedule that has recently been provided by Sides Engineering to Energetech is a sufficient response, although it will undoubtedly assist in the provision of proper responses to the requests. 21 The first request made in par 29(d)(i) effectively replicates the request in the second limb of par 29(c) and, if only for that reason, I am not prepared to direct that Sides Engineering should respond to it. On the other hand, the other requests made in par 29(d)(i) and the requests made in pars 29(d)(ii) and (iii) are entirely proper requests and Sides Engineering should provide the best particulars it can; in the case of par 29(d)(iii), only if the assumption in 29(d)(ii) is incorrect.

Paragraph 30 22 Paragraph 30 of the Amended Statement of Claim claims: 'Delay was thereby caused to the execution of the works under the Contract.' 23 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: 'We assume that the delay alleged to have been caused to the execution of the works as alleged in paragraph 30 of the Statement of Claim is the same period and the same times which are alleged in paragraph 29 of the Statement of Claim. If we are incorrect in that assumption, please provide the following further and better particulars: (a) the date or dates on which the applicant maintains the works were delayed by one or more of the conditions referred to in paragraph 29; and (b) which item, trade, or activity in the works was allegedly delayed on each date or for each respective period.' 24 In its response, Doyles, on behalf of Sides Engineering, responded: 'The pleading herein is clear. This paragraph obviously refers back to paragraph 29.' 25 Whether or not the pleading is clear, I see no utility in Sides Engineering responding in the way it has to what is an entirely proper request for particulars. If the assumption upon which the request in par 30 is predicated is incorrect, then Sides Engineering should provide the best particulars it can of the matters referred to in pars (a) and (b).

Paragraph 31 26 Paragraph 31 of the Amended Statement of Claim claims: '31. Within 1 week of each of the events pleaded in paragraph 29, the Applicant satisfied the notification requirements of Clause 30.1.3 of the Contract to the extent that such knowledge was ascertainable at the time. PARTICULARS (a) Frequent updated drilling logs and other reports and communications. (b) The information required by Clause 30.1.3 was given expressly, or alternatively expressly and by necessary implication.' 27 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '31. Paragraph 31 of the Statement of Claim is an allegation that the applicant satisfied the "notification requirements" of clause 30.1.3. It follows that the allegation in the paragraph is an allegation that the Applicant provided notice to the Respondent not later than one (1) week after the start of the various events referred to in paragraph 29 of: (c) the event having occurred; (d) the reason why it occurred; (e) why the event necessitated an extension of time; and (f) the length or expected length of delay. We understand that paragraph 31 alleges satisfaction of those requirements by reference to "the extent that such knowledge was sustainable at the time". Provide the following further and better particulars of paragraph 31 by reference to each of the "events" to which paragraph 29 refers: (a) when does the applicant allege the event commenced? (b) did the Applicant give the Respondent written notice by providing a "drilling log", "report" or some other form of communication? (c) If the answer to (b) is no, by what matters and circumstances does the applicant allege that it provided notice to the Respondent of the event in question; (d) what part or parts of any drilling log, report or other written communication are alleged by the applicant to comprise either expressly or by implication notice of the reason which [sic] the event occurred, why the event necessitated an extension of time and the length or expected length of delay; (e) if it is not alleged that any part of a drilling log, report or other communication served to give express notice of the event, the reason why it occurred, why the event necessitated an extension of time or the length or expected length of delay, what then are the circumstances which are alleged to give rise to an implication of notice of each of those matters? (f) in so far as the Applicant alleges an oral communication as comprising either express or implied notice of one or other of the start of the event, the reason why the event occurred, the reason the event necessitated an extension of time or the length or expected length of the delay, please indicate: (i) when the communication occurred; (ii) identify the speakers; and (iii) provide the substance of the communication which the applicant alleges as the relevant part of the communication.' 28 In its response, Doyles, on behalf of Sides Engineering, responded: 'The pleading and particulars combined with the additional particulars herein are sufficient. These are otherwise matter for evidence and argument.' 29 Again, I do not agree that Sides Engineering is entitled to respond in this way to what are, in my view, entirely proper requests for particulars. Sides Engineering should provide the best particulars it can of the matters referred to in par 31 (a) - (f).

Paragraph 87(b) 30 Paragraph 87 of the Amended Statement of Claim claims: '87. By: (a) making the Co-operation Representation and the Notification and Extension Representation; (b) continuing to accept and acknowledge the informal arrangement whereby the Applicant kept the Respondent fully informed of all relevant matters and developments and continuing to deal with the Applicant on that basis; and (c) subsequently seeking to resile from the Co-operation Representation and the Notification and Extension Representation, the Respondent has engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the TPA [Trade Practices Act].' (Sub-paragraph (c) was inserted by the Amended Statement of Claim.) 31 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '87(b) This global allegation is not otherwise a subject of specific paragraphs which contain the material facts on which the Applicant sets up basis for allegation of this type. We require the following further and better particulars. As to the "informal arrangement": (i) does the applicant allege that an arrangement arose as a result of some communication or communications between the parties? If YES, was the communication oral, written, or partly oral and partly written? If oral, who were the parties of the conversation, what was the substance of each conversation, and when did the conversation(s) … occur? If written, provide copies of all documents which form the written communication. (ii) If NO, what are the facts, matters and circumstances which the applicant alleges gave rise to the informal arrangement? (iii) The only term of the "informal arrangement" that appears in the pleading is one where it is maintained that the Applicant kept the Respondent "fully informed" of "all relevant matters and developments". With respect, the generality of this assertion makes it impossible to understand the case that the Applicant is seeking to make. It would be surprising that the Court would allow such an allegation to move forward without its full elaboration by allegations of the material facts. Unless we receive particulars that assist us in appreciating the case that is sought to be made we will move to strike out paragraph 87(b) and will amend the Notice of Motion accordingly. In an attempt to avoid further dispute your client may wish to reconsider its position and the answer that it has provided. The Respondent is entitled to know what "relevant matters" is said to encompass. The Respondent is entitled to know what "developments" is intended to refer to. The Respondent is entitled to know how the applicant maintains it "kept the Respondent full[y] informed" of these matters. Please provide the necessary information that we sought to expose by our original request for further and better particulars without delay, and which we repeat: In relation to each of the alleged acceptance and acknowledgment referred to in paragraph 87(b), was the acceptance or acknowledgment respectively: (iv) Express; or (v) Implied? If it was express, was it: (A) Written; (B) Oral: (C) Partly written and partly oral? If it was written or partly written, please identify the documents and provide copies. If it was oral or partly oral, pleases identify the parties to, date and location of, and substance of, any alleged conversation. If the alleged acceptance and acknowledgement was implied, please provide full particulars of the facts, matters and circumstances the Applicant asserts gives rise to that implication. (vi) As to paragraph 87(c) and (d), please provide full particulars of the facts, matters and circumstances forming the basis upon which you allege that the Respondent formed an intention to resile from its alleged position, and then intentionally conceal that intention.' 32 In its response, Doyles, on behalf of Sides Engineering, responded: 'The informal arrangement arose by way of oral and written communications between the parties details of which are matters of evidence. Generally, the relevant matters and developments of which the Respondent was kept informed relate to the repair of the barge and anticipated return to work. Evidence of how the Applicant kept the Respondent fully informed is not a proper matter for particulars. Notwithstanding this please refer to the Affidavit of Graham Van Damme dated 17th June 2005 filed in support of the Adjudication Application. The remainder of this Request has been replied to. See Replies to Particulars dated 15th September 2005 and 27th September 2005, and the further particulars herein.' 33 Again, I am not satisfied that Sides Engineering's response is adequate. It is not a proper response to what, in large part, are proper requests for further and better particulars. This certainly applies to the requests made in (i), (ii), (iii) (iv) and (v) of 87(b) and Sides Engineering must provide the best particulars it can of these matters. 34 The request made in (vi) has its own problems of comprehension. First, there is no sub-par 87(d) in the Statement of Claim and sub-par 87(c) was only inserted by the Amended Statement of Claim. Second, the request seeks particulars of matters going to Energetech's intention, but sub-par 87(c) does not contain any allegations going to Energetech's intention - whether to resile from a position or to conceal that anterior intention. I will not direct Sides Engineering to respond to this request.

Paragraphs 88, 149 and 153 35 Paragraphs 88, 149 and 153 of the Amended Statement of Claim claim: '88. By the conduct of the Respondent the Applicant has suffered or is likely to suffer loss and damage within the meaning of section 82 of the TPA and unless an order is made under section 87 of the TPA. … 149. By reason of the Respondent's breaches of the Contract the Applicant has suffered loss and damage. … 153. By reason of the Respondent's breaches of the Contract, the Applicant has suffered loss and damage. 36 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '88. Provide full particulars of the "loss and damage" which the applicant alleges it suffered, providing those particulars by reference to itemised heads of claim together with relevant calculations. … 149. Provide full particulars of the "loss and damage" which the applicant alleges it suffered, providing those particulars by reference to itemised heads of claim together with relevant calculations. 153. Provide full particulars of the "loss and damage" which the applicant alleges it suffered, providing those particulars by reference to itemised heads of claim together with relevant calculations.' 37 In its response of 31 October 2005, Doyles, on behalf of Sides Engineering, responded: 'Paragraph 88 Please see Paragraph 115 of the Statement of Claim. The Applicant also claims interest on all monies payable by the Respondent under the Contract together with costs and management time particulars of which will be furnished in due course. The above particulars of loss and damage are not exhaustive and the Applicant reserves the right to provide further particulars. … Paragraph 149 Costs and management time particulars whereof will be provided in due course. Paragraph 153 Costs and management time particulars whereof will be provided in due course.' 38 Energetech is clearly entitled to particulars of how each of the amounts in 1 - 5 inclusive of the table in par 115 of the Amended Statement of Claim has been calculated and Sides Engineering should provide the best particulars it can of such calculations.

Paragraphs 131 and 132 39 Paragraphs 131 and 132 of the Amended Statement of Claim claim: '131. It was a term of the Contract that either party would be excused from the performance of an obligation under the Contract to the extent of and for so long as the failure to perform was directly caused by a Force Majeure Event within the meaning of the Contract. PARTICULARS (a) Clause 30.3 of the Contract. 132. In the alternative to paragraphs 8 - 130, by reason of the facts pleaded in paragraph 9, a Force Majeure Event within the meaning of the Contract occurred on 28 October 2004.' 40 In its consolidated request of 4 October 2005, Clark McNamara, on behalf of Energetech, wrote: '131. What does the Applicant allege are the characteristics of an event within the meaning of the term "force majeure event" under the Contract. 132. What is it about each of the facts referred to in paragraph 9 which the applicant alleges: (a) had the characteristics required to bring that event within the meaning of the term "force majeure event" under the Contract; (b) which excused the Applicant from performance of its obligations under the Contract; and (c) what period of time and on what dates between 28 October 2004 and 17 February 2005 did the event directly cause the Applicant to fail to perform its obligations under the Contract. (d) In what way is it alleged that each event referred to in paragraph 9 directly caused the Applicant to fail to perform its obligations under the Contract. What obligation under the Contract does the Applicant allege each of the events referred to in paragraph 9 directly caused the Applicant to fail to perform.' 41 In its response of 31 October 2005, Doyles, on behalf of Sides Engineering, responded: 'Paragraph 131 This is not a proper request for particulars. This is a matter of legal argument. Paragraph 132 (a) This is a matter of evidence and legal argument. (b) This is a matter of evidence and legal argument. (c) Please refer to Paragraph 133 of the Applicant's Statement of Claim. (d) The Applicant was excused of its obligations to execute the works which is a matter of evidence and legal argument.' 42 I agree that par 131 is not a proper request for particulars. It seeks Sides Engineering's view on a matter of construction of a term of a contract. It is a matter for argument or submission, and perhaps evidence. 43 I also agree that par 132 is not a proper request for particulars. It seeks Sides Engineering's view on matters going to argument or submission, and perhaps evidence. 44 I will not direct Sides Engineering to respond to the requests referred to in [42] and [43]. 45 As Energetech has been substantially successful on the motion, Sides Engineering must pay Energetech's costs of the motion. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 22 November 2005 Counsel for the Applicant (Respondent on the Motion): Mr R Carruthers

Solicitor for the Applicant (Respondent on the Motion): Doyles

Counsel for the Respondent (Applicant on the Motion): Mr F C Corsaro SC

Solicitor for the Respondent (Applicant on the Motion): Clark McNamara

Date of Hearing: 8 November 2005

Date of Judgment: 22 November 2005