Discussion of evidence of Skywalk Capital Expenditure
105Having considered the proper construction of clause 13.7 and the relevant principles of evidence, it is now necessary to determine whether the plaintiff has established that it has incurred Skywalk Capital Expenditure in excess of $5 million.
106CB413 was a spreadsheet prepared for the purposes of identifying capital expenditure. The defendant makes a number of criticisms of the document. In final submissions, I should observe however, the plaintiff tendered a schedule of invoices which were available and which totalled $5,891,005.26. There were about 438 invoices analysed. I will return to this item in due course. It was accepted by both sides that CB413 may well prove that monies were expended and/or incurred in relation to items described in the spreadsheet. It did not follow however that each of the items in relation to which there was the purported expenditure fell within clause 13.7 (TT 73-75).
107The plaintiff called a Mr Kevin Bush who provided three statements. Mr Bush is a chartered accountant who for a time from May 2007 became the CEO of the plaintiff, which role involved him overseeing all of the work undertaken by the Company. Previously, from about July 2005 until January 2009, he had been employed in other roles within the group.
108In his July statement, Mr Bush gave evidence of a number of reports which were supplied to the defendant from time to time setting out amounts allegedly owed to the group. He described (at [36] - [49]) in broad terms the process undertaken in relation to expenditure.
109He said (at [37]) that the accounting system of the plaintiff had a special general ledger code specifically for the Skywalk project. When an invoice relating to the project was received it was coded by a Mr Paul Sexton (or a person working under his management) as specific to the project. It was then entered into the general ledger. The general ledger account recorded costs relevant to capital expenditure as referred to in clause 13.7 of the Deed. The invoices were allocated under various sub-headings through spreadsheets. Hence, in due course, the creation of CB413.
110He made plain (at [39]) that the accounts did not include office expenditures (for example salaries for himself, the managing director or other persons not related to the project). He then described (at [49]) what he said were brief details of the various categories, which involved summaries of costs incurred in what he asserted was the development of the "Skywalk Project". In broad terms he then described various amounts which had been incurred.
111His second statement dealt in slightly more detail with communications between himself and Mr Silber and the defendant and demands made upon them. He also dealt (at [23]) with the construction of Skywalk and ultimately the conduct of the Skytour and Skywalk businesses.
112In a third statement from Mr Bush, he gave evidence about invoices received by the plaintiff or the Company and how they were passed on to managers from the plaintiff's marketing operations or maintenance department, whereupon the invoices would in some way or other be separated out as relating to the construction of Skywalk and the operation of the Skywalk business and were marked with a code and entered in the ledger accordingly for Skywalk expenses and capital expenditure. Again, the invoices were allocated under various sub-headings and Mr Bush conducted spot checks in conjunction with the auditors every half year.
113Mr Bush gave evidence orally in chief that the main managers who were involved in allocating the invoices to the Skywalk general ledger were Paul Sexton, Dean Cambridge, Katherine Foreman, James Fulford and Ravini Perera. A Mr Brian Owles, the CFO, had been preparing and maintaining a spreadsheet in relation to what was said to be the Skywalk capital expenditure project. Mr Bush had asked a Mr Regan Cheriton, the financial controller at the time in July 2005, to print off a general ledger report and provide it to Mr Bush with a copy of the material invoices in large amounts for Mr Bush to check against the general ledger.
114Mr Bush, in conjunction with Mr Cheriton, on a monthly basis, printed off the general ledger code for the Skywalk capital expenditure and allocated the new general ledger entries in the spreadsheet to make sure that the spreadsheet agreed back to the general ledger code at the end of each month.
115Every month the finance team reported to Mr Bush by providing complete reconciliations of all the major balance sheet accounts in the general ledger, including the Skywalk capital expenditure account, and Mr Bush would review the work papers that substantiated the general ledger balances. He described CB413 as a summary page of an Excel worksheet which had detailed workings contained in a separate tab which sat behind the summary page.
116Importantly however in cross-examination Mr Bush made a number of important concessions. First at T113.35 where the following evidence was given:
Q: So far as you are aware there was never any document given to any employee of the plaintiff or of Sydney Tower Observatory Pty Ltd setting out the approach they should take in deciding whether a cost should be allocated to the Skywalk Cap Xex account, correct?
A: Documentation in terms are written? No. In terms of verbal it was self-explanatory for the managers in charge of their functions of what related to Skywalk capital expenditure because it was different to anything we were operating or constructing at the time.
117However, Mr Bush appears to have proceeded upon the assumption that the managers would be able to work out for themselves whether a cost should be allocated to the Skywalk capital expenditure account or not, with a review done by Mr Bush based on some sampling method (T114.03). Mr Bush did not check anywhere near most of the invoices himself (T111.39 - 111.43). Further, someone other than Mr Bush would decide whether invoices received from a contractor were a cost of the Skytour refurbishment works or the Skywalk works and there was never any document given to whoever it was who made that decision setting out the approach that they should take.
118The defendant further submits that there is no clear evidence as to who made the allocations of the amounts in the line items contained in CB413. It is submitted, and I agree, that the evidence seems to suggest that the initial allocation of invoices to the Skywalk capital expenditure ledger was made by one of five managers and the detailed allocation of expenditures into the line items on CB413 was made either by Mr Owles, Mr Bush and/or Mr Cheriton.
119The defendant submits, and again I agree, there appears to be a complete lack of criteria (if any) to be applied by any of those persons in determining what expenditures were to be allocated into the Skywalk capital expenditure ledger and what expenditures were to be allocated into the particular line items in CB413.
120The plaintiff did not adduce any evidence of contracts it or its subsidiary made with the contractors and consultants (recording agreed scopes of work and agreed prices for the work) or the variations to those contracts as agreed and the invoices it received and paid concerning the performance of the contracted works. Those contracts and invoices might have enabled a determination to be made as to the true amount of the clause 13.7 expenditure.
121Apart from Mr Bush, none of the relevant employees was called to explain the methodology adopted and approach they took in allocating expenditures incurred in the various line items in CB413. The absence of contracts made with contractors and consultants recording potentially agreed scopes of work and agreed prices for work and/or variation are particularly important in this context because of at least the three applications to modify the development consent initially obtained. In particular, the third application to amend was made as late as 2007 and approved by the Council on 5 October 2007. There is also no doubt that the plaintiff's post-Deed decision to amend the podium level arrangements caused considerable delay.
122There were other works being undertaken by the plaintiff concurrently with the Skywalk works including works at Skytour, Sydney Wildlife World and Sydney Aquarium. The evidence would tend to suggest that there were contractors who were working on more than one of the projects. In the absence of contracts or at least materials which might prove the basis upon which either quotations were given or work was undertaken there is no way of knowing to what extent the contracted scopes of work included works or services wholly unrelated to the construction and completion of Skywalk.
123The evidence of each of the construction experts underscores the absence, on the part of the plaintiff, of cogent evidence establishing the true cost of the clause 13.7 Skywalk Capital Expenditure.
124Professor Carmichael reviewed the evidence including the Court Book and other documents and expressed the opinions set out in paragraphs 26 to 37 of his report. Professor Carmichael is a highly qualified engineer and a Professor at the University of New South Wales with special areas of expertise in project management, construction management, construction, building and structural engineering. In summary he stated at paragraph 38:
Based on the documents viewed it is not possible to establish the true costs of the skywalk capital expenditure. However it can be said that the true cost is less than the $7,900,407 claimed. This is so because expenditure on construction work outside the Skywalk capital expenditure scope of work both in type and timing has been included in the claimed amount.
125This opinion was not challenged in cross-examination.
126The plaintiff's expert, Mr Barrow, is also an engineer. He is the principal of a firm, Evans and Peck, which has been involved in a number of large engineering projects. In his report (at paragraph 119) he indicated that he was unable to determine whether the calculation of "Skywalk Capital Expenditure" contained in Schedule 1 to the letter of Sydney Attractions Group dated 31 July 2008 was correct according to the records available. He, however, expressed a view in his report that he thought capital expenditure was of the order of $6,766,501.
127On the materials, however, he was simply unable to make an assessment of the true costs of the works undertaken within the scope of clause 13.7 (T521-528). Perhaps more importantly he gave the following evidence (at T510.19-510.26):
Q: You certainly agree that you have been unable to make an assessment of the true costs of the works undertaken within the clause 13.7 scope?
A: No. as I have said, I have stated I have not been able to relate the scope as I have seen in the development consents to this final claim.
Q: So you agree with the proposition I have just put to you?
A: I agree with the fact that I have not been able to relate the DA and the Section 96s to the claim.
128Mr Barrow made it abundantly clear that the lack of contractual documentation made his task very difficult. Further, he was simply unable to relate plans with the actual expenditure undertaken (T510.15).
129The plaintiff tendered approximately 438 invoices. As I have earlier observed, it made in final submissions a very detailed submission and analysis of those invoices. The first thing to observe about them however is that they do not total anywhere near the $7 odd million claimed to have been involved in the capital expenditure.
130The defendant submits, and again I must say I agree, that the invoices themselves do not support a finding that the clause 13.7 capital expenditure was in fact the $5,783,371.27 or any other amount exceeding $5 million. A number of reasons are given for this.
131First, it is submitted by the defendant that it is not evident from many of the invoices that they relate to the construction and completion of Skywalk. Whilst it is true that some of the invoices specifically refer to Skywalk (e.g. using the schedule of invoices, documents 2, 6 and 15), the great proportion depend upon a code attributed to them and in turn decisions made by members of staff along the lines already described which, for the reasons already described, do not provide a clear and cogent relationship between the invoice and the capital expenditure in clause 13.7. This is particularly underscored by the absence of contractual documentation to which the invoices could relate.
132Secondly, for many of the invoices, it is clearly not possible to know whether the words or products supplied related to works under the section 96 modified development approvals or works in performance of the design variations or works relating to the Skytour refurbishments.
133Thirdly, some of the invoices are dated before 5 July 2004 (being the date of completion of the Deed) and others are dated after the Skywalk Launch Date. In either case they arguably fall outside clause 13.7 expenditure.
134The defendant also submits that very few of the invoices include evidence of actual payment and there is no other evidence from which the court could conclude that the 438 invoices have been paid. It seems to me that the better view is that the invoices do amount to some proof of payment, the question really though is in respect of what.
135I already have given reasons sufficient to dispose of the plaintiff's claim for reimbursement of excess Skywalk Capital Expenditure. However, I wish to make two further general observations in relation to the plaintiff's schedule of invoices.
136First, it is necessary to bear in mind the undenied fact that at the time the plaintiff was carrying out works for the development of Skywalk, it had, and was undertaking works in relation to, other attractions, including Skytour, Sydney Wildlife World and Sydney Aquarium. It will therefore be necessary for each invoice that the plaintiff relies on to display such a degree of specificity as to allow me to make a finding that the invoice is attributable to Skywalk and not another project. Secondly, it is also necessary to bear in mind that not merely any capital expenditure attributable to Skywalk is relevant, because Skywalk Capital Expenditure is defined in clause 13.7 as a particular type of capital expenditure (previously discussed). Again, the information derived from the invoices must enable me to be satisfied that the capital expenditure attributable to Skywalk is indeed "Skywalk Capital Expenditure".
137In submissions, the defendant observed that there were five managers involved in the allocation of invoices to what was described as a Skywalk general ledger. This is perhaps the ledger on which the quantum of the plaintiff's claim for excess Skywalk Capital Expenditure is based. As the defendant noted, it emerged in cross-examination that Mr Bush never personally checked most of the invoices allocated to the ledger and that there was no evidence of a universal document circulated to the five managers responsible for the allocation of invoices to the Skywalk ledger setting out criteria, guidelines or rules they should follow when deciding whether an invoice belonged to the Skywalk Capital Expenditure account or not.
138The critical column in the schedule of invoices prepared by the plaintiff appears to be the column headed "whether invoice relates to Skywalk". Most of the invoices itemised in the schedule are said to bear a code, numbered "106701" (subject to a few exceptions mainly at the end of the schedule). There was no direct evidence of what this code signified. The plaintiff submitted that, whatever the code meant, the consistent coding of "106701" at least shows that the invoices were coded in accordance with a business practice described by Mr Bush, namely, that five managers allocated the invoices to a Skywalk account (and presumably "106701" refers to that Skywalk account, though the evidence on this is imprecise) (T649.5-T649.19 and T84.10-T84.30).
139There are difficulties with that submission. Even assuming, perhaps not unreasonably, that "106701" refers to a Skywalk account internally maintained by the plaintiff, that assumption does not overcome the plaintiff's fundamental difficulty of proving that the sum recorded in each invoice is Skywalk Capital Expenditure within the meaning of clause 13.7. The mere fact that an invoice is assigned a code or allocated to a particular internal account by an employee of the plaintiff does not prove that the sum referred to in that invoice is Skywalk Capital Expenditure within the meaning of clause 13.7 (on its proper construction).
140A number of the invoices expressly refer to "skywalk". Although, in some respects, this is better evidence for the plaintiff (as these invoices expressly refer to the relevant project and presumably the reference to "skywalk" was written by an external contractor), it still does not overcome the plaintiff's fundamental problem of establishing that the expenditure should properly be characterised as "Skywalk Capital Expenditure" within the meaning of clause 13.7.
141In any event, the total sum of the invoices in the plaintiff's schedule of invoices is only $5,891,005.26, not some $7 million or $8 million as contended. Further, when one sums only the value of the invoices containing a reference to code "106701" and those containing an express reference to "skywalk", and those containing an express reference to both, the total figure is $4,982,447.16. Again, that figure is below $5 million.
142For at least the reasons just stated, the schedule of invoices prepared by the plaintiff does not assist to substantiate its claim for reimbursement of its alleged excess Skywalk Capital Expenditure. The plaintiff's contractual right to obtain a reimbursement of excess Skywalk Capital Expenditure under clause 13.7 was plainly dependent on it obtaining material to satisfy the relevant counterparty to the Deed of the fact of such expenditure. The evidentiary material suffered from a number of defects, many of which have been identified. One would have thought, especially given the amount of money potentially involved, that the parties would have had in place by consent some kind of mechanism to ensure a clear and binding identification of what expenditures were Skywalk Capital Expenditures within the meaning of clause 13.7, and what were not. For example, the parties might have managed the risk by inserting provisions in the Deed requiring the plaintiff to periodically submit invoices of relevant expenditures, together with relevant explanations, to a particular individual nominated by the defendant, who would be required to either approve the characterisation of the expense as Skywalk Capital Expenditure from time to time (thereby binding the defendant), disapprove that characterisation (leading to further discussion perhaps), or request further information. This contractual risk management tool would, I think, have forestalled the present dispute. In the absence of any such contractual mechanism or other procedure accepted by the parties, the party on which the risk falls will ultimately be selected by a simple application of the legal rules relating to onus of proof.
143There are further difficulties however associated with this purported expenditure. For example, the amounts in CB413 include amounts being costs of the works comprised in and necessitated by the modified development consents and design changes. For these amounts to be capital expenditure for the purposes of clause 13.7 they either have to fall within the clause per se or for example be necessary upgrades required by the plans for the Skywalk business. For reasons for which I will come to in a moment, in my view, this has been a particularly troublesome issue for the plaintiff.
144The amount of expenditure must exclude all expenses incurred prior to December 2003. CB413 purports to do this in a fashion, but it is by no means clear that they are all the expenses incurred prior to this period. Again it is not clear that CB413 excludes all costs incurred after the Skywalk Launch Date on 19 October 2005. Nor have they been shown to exclude costs incurred in refurbishing the Skytour area on the podium level.
145The defendant makes a number of submissions in relation to these items.
146It is not in dispute that after the Deed was entered into the plaintiff applied for and obtained approval to modify the development approval referred to in clause 13.7(a) of the Deed. Approvals were granted in January 2005, March 2005 and October 2007.
147It is submitted by the defendant, in my view correctly, that the proper interpretation of clause 13.7 means that the cost of and incidental to the carrying out of the works the subject of the section 96 approvals are not part of clause 13.7 Skywalk capital expenditure unless they were "necessary upgrades required by the plans for the Skywalk business" under clause 13.7(c).
148The defendant submits, which again I think is correct, that there is simply no material upon which the court could conclude that the January 2005 and March 2005 development modifications were necessary upgrades required by the plan as opposed to ones that might be regarded as merely desirable.
149Mr Barrow for the plaintiff who has had regard to all relevant documents concerning modifications, expressed the opinion that he was unable to determine whether the proposed works covered by the March 2005 modification approval were a necessary upgrade and therefore he was unable to determine whether or not they should be included in the calculation of the Skywalk Capital Expenditure under clause 13.7. He also expressed the view that the March 2005 modification approval replaced the earlier January 2005 approval. So far as the October 2007 approval was concerned, Mr Barrow described the modifications as comprising the construction of two staircases to replace the moving platform between the upper and lower walkways. As far as he was concerned, the construction of the two staircases became necessary because of management's decision to disuse the moving platform. That in turn seems to have been a decision taken by management in order to reduce payroll and maintenance costs. There is certainly no suggestion however that the modifications were made as a result of any legal requirement rather by reason of a commercial judgment made by the plaintiff in order to minimise its operating costs. On that basis I am certainly of the view that it could not qualify as a necessary upgrade. It was an upgrade, as it were, taken by the plaintiff in its own commercial interests.
150Mr Barrow also described changes to the existing unirail in the October 2007 approval. There is simply no evidence to explain why this was done. Mr Barrow has no idea and said so. Again, apart from it being a unilateral decision, it does not appear to be based on what might be described as some notion of necessity.
151Similarly Professor Carmichael expressed the view that there was insufficient material to enable a conclusion to be made as to whether the modification work the subject of either the January or March 2005 approvals fell within the scope of clause 13.7.
152Insofar as the modifications to the approvals were concerned, they in turn involved a larger number of design changes. These were made after the Deed was entered into. At CB360-366 one finds the variation register. There is a reference to a drawing number, a description of the change and the reason for the change all given in very brief and broad terms. However, it is not possible from that register to determine whether the variations were necessary or were purely for aesthetic, cosmetic or other reasons lying outside the scope of Skywalk Capital Expenditure.
153Professor Carmichael in paragraph 28 of his report suggests that the variation register does not indicate whether the work is within the scope of clause 13.7, simply by reason of the lack of specific details. He observes in passing that the reasons given for many of the variations are "very broad descriptions and tell nothing of the specific work involved". This evidence was not the subject of challenge in cross-examination.
154Mr Barrow gave evidence to the effect that he was unable to determine the extent of the changes listed in the variation register and was equally unable to determine the cost of performing those changes.
155Mr Bush gave evidence that the works the subject of the January/March 2005 section 96 approvals were carried out by the same contractors and consultants who had carried out works under the original development application. This of course adds to the confusion when one tries to disentangle precisely what might relate to clause 13.7 and what might not. He further gave evidence that he understood that invoices from contractors and consultants were allocated to a single Skywalk Capital Expenditure general ledger and therefore that all costs associated with all of the section 96 modifications were included in the claimed amounts which totals $7,009,407. Again, that only compounds the problem. In his report (at paragraphs 73 - 78) Mr Barrow, even upon the assumption that such works were considered by the plaintiff to be enhancements to the Skywalk business, identified an amount of $427,504 which he thought may have been for "Skywalk Enhancements". He, however, observed that there was insufficient detail in the documents to provide any analysis of that amount. Likewise, Mr Bush gave evidence that he had no idea what was comprised in the $427,504 (T118). On this basis it seems to me that I cannot safely conclude that that amount for example was to be regarded as part of the necessary upgrades for the purposes of clause 13.7.
156Further there are no detailed workings in evidence to enable any determination of what comprises the $427,504. In my view, as the defendant submits, it appears to be entirely unknown whether that amount records the true amount of the costs of and incidental to the section 96 modification approvals and/or the design variations. It is therefore not possible to be satisfied that the costs of and incidental to the section 96 development consents and the design changes, including the costs of carrying out the works to implement those modifications and changes, have been excluded from the costs set out in the claim schedule at CB413.
157As I have already observed when dealing with the construction of clause 13.7, Skywalk Capital Expenditure is defined as comprising expenditure incurred "after completion". Completion took place on or about 5 July 2004 and therefore it follows that any costs incurred before that date could not form part of the Skywalk Capital Expenditure for the purposes of the clause. The schedule at CB413 includes an amount of $397,127 described as "pre December 03 Expenses". Mr Bush did not prepare CB413, rather it was prepared by Mr Owles prior to Mr Bush starting at the Company (T114.40).
158However, the "Skywalk Capex Budget" as at December 2004 (CB266) records the amount paid prior to December 2003 as totalling $543,874. On any view, and on those calculations, the difference (being $146,000) would appear to be expenses incurred prior to December 2003 contrary to the requirements of clause 13.7.
159The defendant makes the point that although CB413 includes a deduction for pre-December 2003 expenses it does not include any deduction for expenses incurred between December 2003 and 5 July 2004. This is apparent from the face of the document.
160The defendant submits that from the management reports sent to the defendant during 2006 the Skywalk capital expenditure ledger includes apparently an amount of approximately $401,774 said to have been incurred between 1 January and 30 June 2004 (CB 372, 393 and 400). Mr Bush agreed that the claim at CB413 in all probability also included at least $401,000 of expenditure incurred in the period January to July 2004 (T116.10). However, as the defendant points out, the Skywalk capital expenditure budget as at December 2004 recorded $549,376 as having been paid in the period January to June 2004. Mr Bush gave evidence that that amount of $549,376 would have been included in the final costs of $7,834,037 in the claim schedule CB413. It is clear from Mr Bush's evidence as a whole that he was quite unsure what was in fact included or excluded in relation to the period January to June 2004.
161The defendant submits, and I entirely agree, that the final cost therefore recorded in CB413 of $7,834,037 includes all costs that were allocated to the Skywalk capital expenditure ledger including all costs incurred in the period January to June 2004. It is also tolerably clear that Skywalk capital expenditure totalling $549,376 was paid in the period January to June 2004 (Column E, CB 266).
162The claim at CB413 certainly does not purport to exclude any expenses incurred between the period January to June 2004. It follows that the $549,376 expenditure incurred in the period January to June 2004 is, it seems to me, more probably than not included in the $7,009,407 in CB413 contrary to the requirements of clause 13.7.
163By reason of clause 5.11(c), the Deed imposes an end date (being the Skywalk Launch Date) for the capital expenditure that is included within the $5 million cap. This is the same cap as referred to in clause 13.7. It is clear to me that clauses 13.7 and 5.11(c) should be read consistently to the extent that the express words used allow. It seems to me therefore, on a proper construction, the capital expenditure in clause 13.7 is, when read with clause 5.11(c), intended to include such expenditure that is incurred up to the Skywalk Launch Date but not thereafter. Capital expenditure incurred after that date on a proper construction of the Deed should in my view be brought to account under clause 5.8(c) integer C in the calculation of the Skywalk Adjusted Payments.
164The defendant therefore submits that the amounts said to comprise the Skywalk Capital Expenditure set out in CB413 should exclude any capital expenditure incurred after the Skywalk Launch Date on 19 October 2005. Mr Bush however gave the following evidence (T85):
Q: What further transactions were shown on the spreadsheet? In other words how did it progress?
A: So what happened is every month Regan Cheraton printed off the general ledger code for skywalk capital expenditure so during every month there were more invoices allocated to that code. What I did was sit down and review those - what was in the general ledger and allocate them in the spreadsheets so updated the spreadsheet every month based on
Q: What you personally did that?
A: I personally did that in conjunction with Regan to make sure that the spreadsheet at the end of every month agreed back to our general ledger code.
Q: How long did that persist, that practice?
A: That persisted to 31 July 2008 when the statement was sent out.
165What is apparent from the above evidence is that, according to Mr Bush, amounts were added to the Skywalk capital expenditure ledger on an ongoing basis until 31 July 2008. However there is simply no evidence which identifies the quantum of capital expenditure which is included in CB413 but which was incurred after 19 October 2005.
166A further complication which arises is that during 2005, Skytour, as distinct from Skywalk, was also undertaking some capital expenditure works involving the refurbishment of the podium areas from which the Skytour business operated as well as works relating to graphics for that business and in and around Centrepoint Tower.
167Many of the contractors and consultants used to carry out the Skytour works were the same contractors and consultants used to carry out the Skywalk works. Mr Bush made that abundantly plain (T93.45). It appears that the Skytour works involved expenditure in the order of somewhere between $300,000 and $500,000. Judgments had to be made as to what parts of the Skytour refurbishment costs were to be allocated to the Skywalk capital expenditure ledger. It appears that Mr Fulford and Mr Perera made those judgments. There is no evidence from either of those persons or from anyone else otherwise describing the approach that should be taken when such decisions were being made in respect of the invoices and what the protocol was intended to be in deciding whether an invoice from a contractor or consultant relating to the podium refit should be allocated to Skytour or Skywalk and indeed why. In those circumstances the defendant again submits, and I think correctly, that the court cannot be satisfied that the cost of the podium fit-out works had been appropriately allocated as between Skytour and Skywalk.
168The defendant submits that the best evidence available as to the true amount of the Skywalk Capital Expenditure is the estimate of the development costs made on 5 April 2005 by the independent quantity surveyor, Rider Hunt (that being the amount upon which the section 61 contribution and development approval fees paid to the Council were assessed). The quantity surveyor estimated the total development costs to be $3,798,820 (including GST) which equals approximately $3,453,373 excluding GST.
169The estimate of Rider Hunt was based upon the detailed costs report given by a registered quantity surveyor, Ms Fiona Doherty, of Apex Consulting Group on 18 March 2005. That detailed cost report estimated the total development cost for the works at $3,582,877 (including GST). The estimate it was, so it seems, based on an assessment of quotations received for the construction of the Skywalk structure as well as a detailed budget estimate of the costs of the podium works and estimate consultants' fees and charges.
170On 5 April 2005 an estimate was made by an independent quantity surveyor engaged by the Council. It was likewise based upon a detailed costs report said to have been certified and estimated in accordance with Schedule 2 of the Contributions (Amendment) Plan 2002 approved by the Council. A construction certificate had been applied for on 16 March 2005 and was obtained on 8 April 2005 following which on site construction works commenced. In the application for the construction certificate made on 16 March 2005, the estimated total costs of development was said to be $3,580,000.