Valmont Interiors Pty Limited v Giorgio Armani Australia Pty Limited

Consideration

1. There are a large number of issues in the proceedings. In order to clarify precisely what was in issue and the respective positions of the parties on each issue, the parties were ordered to prepare a list of issues and to structure their written submissions by reference to this list.
2. Fortunately, the parties were able to resolve a number of the issues during the course of the proceedings. Unfortunately, the written submissions were not structured by reference to the agreed list of issues. In spite of that, it is convenient to structure the balance of these reasons by reference to that list of issues.
3. The list of issues was divided into four segments: construction contract, completion, delay damages and defects.

1.1 Is the Construction Contract wholly contained in the "Works Contract" dated 8 January 2016?

1. The parties agreed that the answer to this issue is "yes". Clause 1.1 provided that the Contract Documents constituted the entire agreement between the parties. In light of that, and the absence of any ambiguity or claim for misleading conduct, the parties' agreement is correct.

1.2 If the answer to 1.1 is yes, are the items described as "Client Supply Items" in the Details to the Construction Contract, namely, light fittings, security equipment and joinery (item 6) to be supplied by the defendant without allowance from the Contract Price?

1. The parties agreed that the answer to this was "yes"; however, the defendant argued that not all joinery items were to be supplied by the defendant, only the joinery items specified.
2. This requires some explanation.
3. Clause 2.1 of the Contract required Valmont to "carry out and complete the Works". "Works" was defined in cl 1.6 to mean "the whole of the work required to be performed by the Contractor pursuant to the Contract as described in the Details and including variations provided for by the terms and conditions".
4. The Details included the following "Description of Works" referring to cl 2: "For the fcomplete construction and fitout works for the proposed design of EA Sydney Airport. The contract sum is a fixed project price inclusive of all items - excluding those supplied by the client. Project Management, site management, security, supply and installation of all items as described in the Contract Design Documents (Schedule 1)." (Without correction)
5. The Details also specified items described as "Client Supply Items" (a term defined in cl 1.6 as the items listed in the Details which Armani was to provide to Valmont): "Client Supply Item: Date available: Light Fittings 10th February 2016 Security equipment 10th February 2016 Joinery (as specified) 27th February 2016"

1. The plain meaning of these terms is that, subject to any variations, Armani was to supply Valmont with the three items specified in the Details as "Client Supply Items" without any deduction from the contract price. As Armani noted, its obligation was only to supply joinery "as specified".

1.3 Alternatively, did the quotation issued by the plaintiff on 9 December 2015 in the sum of $989,810 (exclusive of GST) form part of the Construction Contract or alternatively a collateral contract?

1. The parties agree, and I accept, that the answer to this question is "no".

1.4 If the answer to question 1.3 is "yes"

1. This issue does not arise.

1.5 Was Armani obliged to supply the LED video as part of the "joinery as specified" client supply item?

1. The parties agree that the joinery "as specified" is a reference to the items included in the Furniture Schedule contained in drawing A06.02. [13] The first item in that Schedule was described as: "LED VIDEO SP.6 CONNECT WITH MQUBE SYSTEM (BACK TO 50MM FROM EXTERNAL FRAME); 50MM SUDDEN FRAME. BACK OPENABLE OR REMOVABLE FOR LAMPS MAINTENANCE"
2. There was also a reference to drawing A12.66 [14] which contained details of both the LED screen and the frame in which it was to be fixed.
3. Although the LED screen was contained in the "Furniture Schedule" it did not form part of the joinery as specified and so was not a client supply item. That means that Valmont was responsible for its supply within the contract price.
4. First, the ordinary meaning of joinery includes wooden components of a building. It does not include electronics. Secondly, the Chinese joinery company excluded the LED screen from its scope of work in a quotation provided to Valmont before the Contract, indeed, before Valmont's revised quotation.

1.6 What is the balance of the Contract Price due to the plaintiff?

1. The parties agree that $98,981 (plus GST) is the balance of the Contract Sum that has not been paid to Valmont. The question whether Armani must pay that sum (and interest) may depend on whether it is entitled to any amount from Valmont in respect of defective or incomplete work or liquidated damages: see cl 12.6.

1.7 What sum is due to the plaintiff for variation claims - "in contract" works?

1.8 What sum is due to the plaintiff for additional claims - "out of contract" works?

1. It is convenient to deal with both of these issues together.
2. Valmont adopted the terms "in contract" and "out of contract" to describe different aspects of its claim. It used "out of contract" works to describe the supply by it of joinery, lighting and security that were included in the Client Supply items set out in the Details of the Contract. It argued that, because that supply was "out of contract", it was entitled to recover payment on the basis of an inferred or implied contract. The term "in contract" was used to describe variations requested in connection with work that fell within the terms of the contract.
3. Valmont argued that the distinction is important because the contractual restrictions for payment of variations to the contract (see cl 15) did not apply to "out of contract" work, but did apply to "in contract" work.
4. Valmont's argument relies on the summary of the decision of the High Court in Liebe v Molloy (1906) 4 CLR 347 by Justice Priestley in Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 272: "The High Court … said (at 354), that if the proper inferences from the facts were (i) that the employer had actual knowledge of the extra works as they were being done, (ii) knew that they were outside the contract and (iii) knew that the builder expected to be paid for them as extras then a contract to pay for them could properly be implied. ..."
5. Importantly, the Court in Liebe explained further (at 354): "… Such an implication of course arises from an express request to do work made under such circumstances as to exclude the idea that the work was covered by a written contract. ..."
6. The difficulty for Valmont here is that there was provision within the contract for directions to be given by Armani that expanded the scope of the works to be conducted by Valmont. Clause 15.1 relevantly provided: "15.1 GAA is entitled to direct the Contractor to increase, decrease or change the Works, the sequence in which the Works are performed or the materials or classes of work specified (Variation) …" (Emphasis in original)
7. This clause envisaged that works that were not expressly identified in the contract as part of the works to be carried out under the contract were still to be covered by the terms of the written contract. That clause is part of the circumstances to be considered in determining whether or not the principle in Liebe applies to the facts of this case. I conclude that this clause is determinative of that issue, and that any direction given by Armani that related to the subject matter of the contract (i.e. the fitout of the EA retail store at the Sydney International Airport) was intended to come within the scope of the written contract.
8. For that reason, the works identified by Valmont as "out of contract" work, fall to be considered by reference to the terms of the contract and so both issues may be dealt with together as "variation" claims.
9. Before turning to the details of each claim, it should be noted that these issues, as formulated, involve a number of different questions and require some unpacking.
10. The question, as agreed, is what sum "is due" to the plaintiff in respect of these claims. Leaving aside the right to set off under cl 16.6 of the Contract, Armani says that nothing "is due" because Valmont did not comply with the variation provision in cl 15. That requires some analysis (see [56] - [61] below).
11. Next, Valmont argues that Armani is estopped from relying on cl 15 (see issue 1.9). Armani replies that, even if that is the case, which is denied, the amounts claimed are not reasonable (see issue 1.10).
12. Although each issue raised by Armani may make it unnecessary to deal with the detail of each variation claim, I will deal with them as briefly as each permits. It may be noted that, although I have concluded that there is no "out of contract" work, I make findings as to the value of those claims that may be applied to that work even if I were wrong in that conclusion.
13. The variation claims have been set out in a table by the parties. [15] Each item is described as "CV" (contract variation) followed by a number. This follows the format adopted by Valmont in its variation reports for the project. [16]
14. The starting point for this issue is the Contract. It will be recalled that the Works to be performed by Valmont included "variations provided for by the terms and conditions". Clause 15 provided for variations: "15. Variations 15.1 GAA is entitled to direct the Contractor to increase, decrease or change the Works, the sequence in which the Works are performed or the materials or classes of work specified (Variation) by issuing a written direction to perform a Variation stating the direction is being issued pursuant to clause 15 (Variation Direction). The Contractor must not perform a Variation until the price of the Variation, and any effect on the Contractor's Program, has been confirmed in writing. 15.2 If the Contractor considers that a Direction of GAA is a Variation but GAA has not issued a Variation Direction, the Contractor must give notice of the purported Variation to GAA within 5 Business Days after the Direction by GAA that constitutes the purported Variation and clause 15.1 will apply to the purported Variation. If notice not provided by the Contractor in accordance with this clause 15.2 the Contractor releases and waives any entitlement it may have to a Claim against GAA in connection with, or arising from, the purported Variation. 15.3 Within 5 Business Days of receipt of a Variation Direction or provision of a notice under clause 15.2, the Contractor must provide its price for the value of the Variation. 15.4 The parties must use their best endeavours to agree in writing on a reasonable value of a Variation. 15.5 If the parties fail to agree on a reasonable value of a Variation the Contractor will be entitled to the direct costs reasonably incurred in performing the Variation plus an additional 10 percent. 15.6 If GAA directs a Variation which involves the deletion or omission of any part of the Works, GAA may itself, or have another person, carry out that work and the Contractor shall have no Claim, and releases and waives any entitlement it may have to a Claim arising out of GAA or another person carrying out that work." (Emphasis in original)
15. The scope of the power of Armani to give a variation direction is very broad and is only limited by its context and purpose. The context of the Contract as a whole limits that scope of work to "fit out works" for the Emporio Armani shop at Sydney International Airport.
16. The ability to give a direction about the "materials or classes of work specified" is also very broad. There is a requirement that the power be exercised in writing and to state that it is being given pursuant to cl 15.1. However, given the provision in cl 15.2, a direction that does not comply with those requirements remains a valid direction.
17. If there is a direction that complies with cl 15.1 there is a prohibition on Valmont performing the variation until the price of it, and the effect on the Contractor's program have been confirmed in writing.
18. Clause 15.2 deals with a direction by Armani that does not comply with the requirements of cl 15.1 but which Valmont considers is a variation. Importantly, if no notice is given under this provision, Valmont is not entitled to make any claim against Armani in connection with the variation. I will return to the breadth and effect of that clause later in these reasons.
19. At this point it may be noted that, while there were a number of written directions given by Armani to Valmont, none of them complied with the formal requirements of cl 15.1 in that they did not state that they were being given pursuant to that provision. Accordingly, in order to be able to make any claim for payment in respect of these variations, Valmont was required to comply with the provisions of cl 15.2 of the Contract. It did not. Subject to Valmont's argument that Armani is estopped from relying on cl 15.2 of the Contract, there is no amount due in respect of any variation.
20. I then turn to each of the variation claims.

a. CV1: Disconnection and removal of electrical and plumbing

1. Mr Zalloua's evidence was that, in February 2016, he was asked by Ms Brown to remove all the existing plumbing and electrical cabling from the existing store. [17] Without giving any notice under cl 15.2 Valmont proceeded to have the work done. The variation cost $2,450 in total [18] and was approved in writing by Ms Brown on 16 March 2016. [19] This amount was subsequently paid.
2. There is no issue about this claim.

b. CV3: Façade certification

1. The re-designed façade of the store required additional steel support. This, in turn, required certification. Valmont was asked by Armani to obtain this. Valmont obtained the certification using a contractor who charged $1,200 (inclusive of GST). This amount was included in a variation schedule and approved by Ms Brown on 16 March 2016. This amount was paid.
2. There is no issue about this claim.

c. CV9: Glass shelving design and post-construction review by Inhabit Engineering

1. This shelving was originally to have been provided by Sun Bright. Valmont was directed to provide it, and in doing so, incurred additional costs in connection with its design and review because of concerns with the structural integrity of the original design. This was approved in the amount of $3,200.
2. There is no issue about this claim.

d. CV12: Façade and shopfront

1. The drawings for the façade and shopfront are A09.01-A09.05. There is no issue that the revised drawings that were issued on 22 January 2016 changed the scope of the works in respect of the design and materials used. [20] There is a claim for $366,411 for the increase in the scope of the works. That claim is unsustainable. As a matter of principle, the only claim can be for additional costs incurred by the re-design, not the entire cost of the façade and shopfront. That is because there was always a façade and shopfront to be constructed as part of the works.
2. The experts had a slightly different opinion about the cost of the additional work, although each was based on quotations given by a third party contractor (Ramvek) for the construction of the façade as originally designed and as re-designed. Mr Madden, who was qualified by Armani, agreed Ramvek's quotation was reasonable but thought that it should be "decelerated" by 3% per annum to allow for the general increase in construction costs since 2016. I accept that this approach most closely establishes the reasonable costs of the additional façade works and find that they are $28,792.

e. CV15: Alterations to existing drain lines

1. This item relates to alterations to the existing two 160mm syphonic drainage lines in the ceiling. The only evidence about this is an email from Ms Brown sent at 6:45pm on 2 March 2016 in which she wrote: "Camilla has contacted Damien and he will be in tomorrow regarding the sewer pipe relocation/adjustment."
2. Valmont also relies on an invoice addressed to it from plumbers dated 30 March 2016 in the amount of $3,120 (excl GST). [21] None of this establishes that this was in fact outside the scope of the original works and the claim is rejected.

f. CV16: Labour and material to supply skirting

1. Mr Zalloua explains [22] that this item refers to 100mm white skirting in three change rooms and 25mm in black trim between aluminium blades to two curved walls. He says that they were not in the design documents, but that is not correct. In paragraph 26 under General Notes in document A00.10 [23] there is a requirement for new skirting. The claim for this item is rejected.

g. CV17: Re-swing doors and new door jambs

1. This item relates to items that Mr Zalloua says were not incorporated in the quotation. The quotation did not form part of the Contract and, for that reason, did not define the scope of work to be carried out under the Contract.
2. However, Mr Zalloua says that he received instructions from Gensler by email at 3:51pm on 18 April 2016 [24] to re-swing the doors outwards rather than inwards as shown in drawing A02.02. Mr Zalloua also refers to an email from Ms Brown dated 24 June 2016 [25] in which she refers to the "proposed doors". It is difficult to see how this latter email deals with the same issue, given that Valmont relies on the door manufacturer's invoice dated 27 April 2016 [26] and I would refuse this claim.

h. CV18: Supply and install of parliament hinges and smoke seals

1. The only basis for this claim is that these items were not included in the quotation. [27] That fact does not establish that this item fell outside the scope of the Works under the Contract and the item is disallowed.

i. CV19: Supply and install of door closers

1. The only basis for this claim is that these items were not included in the quotation. [28] That fact does not establish that this item fell outside the scope of the Works under the Contract and the item is disallowed.

j. CV20: Supply and install wall strengthening

1. The only basis for this claim is that these items were not included in the quotation. [29] That fact does not establish that this item fell outside the scope of the Works under the Contract and the item is disallowed.

k. CV21: Supply and install 41 light boxes

1. This claim is not entirely clear. Mr Zalloua says that, but does not explain why [30] "the light boxes were required" but were not specified in any of the design documents. He then says that Armani's light fitting supplier (Euroluce) did not supply all of the light fittings by 24 February 2016 as required but were delayed by 61 days. He refers to an email from Euroluce dated 29 February 2016 [31] which states: "Further to this and as discussed, the fittings known as Sirio which are used in the Façade and a couple of other areas are not due here until 6 weeks from today …"
2. This email relates to light fittings, not light boxes and does not assist in determining whether this item was inside or outside the scope of the Contract. Mr Zalloua's statement that the light boxes were required does not help much either, but it does show that this item is not a "light fitting". This means that it was not a "Client Supply Item" as shown in the Details but, rather, reasonably necessary for the installation of those fittings on the site. Clause 1.3 then operates to bring the boxes inside the scope of works. This claim is rejected.

l. CV22: Plywood support

1. Mr Zalloua says [32] that additional structural supports were required for this installation of "Displays Niche". [33] This item falls within the installation cost of the project which was Valmont's responsibility and fell within the scope of the Works. The item is disallowed.

m. CV24: Installation of LED Screen [actually cabinet for screen]

1. This is also an installation item and part of Valmont's general obligation to install everything, regardless of who supplied it. The item is disallowed.

n. CV25: Supply and install metal fixing

1. Valmont argues that metal fixings were required in order to install lights that were supplied by Armani. [34] That may be accepted, however, it does not establish that this is a variation. The installation of lights was Valmont's responsibility and the supply of plates to enable installation fell within the scope of that responsibility. The item is disallowed.

o. CV26: Supply, installation and programming of exit and emergency lighting

1. Mr Zalloua says [35] that independent testing of exit and emergency lighting was required before occupation of the premises by Armani. Again, that may be accepted, however, it was Valmont's responsibility under the contract to have this done: see "Certification" under "Building Regs Notes". [36] This item is disallowed.

p. CV27: Supply and installation of security door controller etc

1. Mr Zalloua explains [37] that this item "relates to the installation of a security door controller and electronic door strikes" that were not allowed for in the quotation. As I have explained, the quotation has no bearing on this issue.
2. On the basis of the evidence the claim must be rejected. Although the security items were a Client Supply Item in the Details of the Contract, Valmont was still responsible for installing those items. It cannot claim the cost of installation as a variation.
3. However, the invoice to Valmont in respect of these items [38] includes both supply and installation of the items. The problems for Valmont are, firstly, that the reference to "supply" is inconsistent with Mr Zalloua's evidence, and, secondly, there is no way of identifying what part of the total charge related to installation and what part related to supply. Given the state of the evidence, I cannot be satisfied that Valmont has established that this is an item of work that fell outside of the Contract and the claim is rejected.

q. CV28: Supply labour

1. This item relates to the "supply of labour to remove and cut framing, plywood, including the removal of plasterboard for sprinkler relocation". [39] Mr Zalloua explained that the work was required in order to make the fire services compliant. As I have explained above, Valmont's obligation generally included any work required to make the services compliant. There is no basis to distinguish this from the scope of works required by the Contract and the item is disallowed.

r. CV30 / CV31: Rubbish removal

1. This claim is for the removal of pallets and packaging that were required for the delivery of tiles and Marmorino. [40] There is no question that Valmont was required to remove rubbish from the site: see, for example cl 1.3. This item was for work that fell within the scope of the works and the claim is disallowed.

s. CV32: Demolition works

1. This claim is for the demolition and removal of 80mm of sand and cement screed prior to the installation of terrazzo stone. [41] There is no evidence that the work was not reasonably necessary for the installation of the stone which was, itself, required by the Contract. For that reason, cl 1.3 operated to bring this item within the scope of works. The item is disallowed.

t. CV33: Additional fire sprinklers

1. This item was required to ensure compliance with relevant regulations and so was within the scope of works. The claim is disallowed.

u. CV34: Removal and reinstatement of FH/FHR

1. Mr Zalloua asserts [42] that it was necessary to remove and then reinstate a fire hydrant/fire hydrant reel in order to construct the shop front. Even if that assertion is accepted without further explanation, which it is not, the item would fall within the scope of works by operation of cl 1.3. The claim is rejected.

v. CV35: Joinery

1. The issue may be summarised as follows. At the time of the contract, all joinery was a "Client Supply Item" and so was to be supplied by Armani. Armani had intended its Chinese supplier, Sun Bright to manufacture and supply all of the joinery; however, on 1 February 2016 Sun Bright wrote to Armani identifying certain parts of the joinery that it would not supply and items of joinery that were to be supplied "by GC". It is understood that "GC" meant "general contractor", that is, Valmont. [43]
2. It did this by putting a dollar figure (in HKD) next to the items it would supply and "By GC" next to the items it would not supply.
3. As I have noted above, Armani instructed Valmont to supply the items that would not be supplied by Sun Bright. This direction changed what Valmont was required to do but, again, there was no direction in accordance with cl 15.1 and no compliance with cl 15.2 by Valmont.
4. Assuming for present purposes, that cl 15.2 does not prevent a claim for the additional amounts that should be paid to Valmont for the joinery it supplied pursuant to the direction, the question is what is the reasonable charge for compliance with the direction?
5. Mr Zalloua included in his first affidavit a table entitled "Provisional Sum Adjustment". [44] This table included details for the following items: Original Contract value (taken from the quotation): $354,000 Contract Works $430,265 Additional Works - in house $20,180 Additional works - furniture supplied by Armani $75,096.89

He then subtracted the Contract value ($354,000) from the total of the last three items ($525,542.55) to arrive at $171,542.55, added 10% for preliminaries and margin and arrived at total (excluding GST) of $188,696.81.

1. The plaintiff's expert, Mr Abbott, gave the following opinions [45] : 1. performance of the joinery direction was costlier than performance of the original joinery work [46] ; 2. assuming the joinery was a provisional sum, the appropriate adjustment was to subtract that sum ($354,000) from the actual cost ($525,542) and add 10% ($188,696 excluding GST) [47] ; 3. on a quantum meruit basis, a quote from a qualified shopfitter (Ramvek) was used to arrive at $480,251 for the Works set out in Mr Zalloua's schedule including installation costs. Mr Abbott later agrees that this should be reduced to $442,871.75 to take into account the increase in building prices. [48]
2. Armani's expert, Mr Madden, gave the following relevant opinions [49] : 1. taking the provisional sum adjustment approach, he accepted Ramvek's quotation as market based but excluded two items (LED video and carpet) as not being joinery, excluded additional time for installation as being included in the Contract sum and adjusted the whole quotation to account for increases in building costs since 2016. The result was an adjustment of $35,163; 2. he had insufficient information to verify a quantum meruit claim because of the bespoke nature of the joinery; however, in the joint report of the experts [50] , Mr Madden says that the value of the Works (as shown in the Ramvek quotation and adjusted to remove the two items mentioned above) is $322,034.
3. It is difficult to assess this claim for a number of reasons. First, as the experts later agree, there is no provision in the Contract for the adjustment of provisional sums. Secondly, the schedule prepared by Mr Zalloua includes work that was already included in the Contract price: for example, the LED screen which was not joinery, installation of joinery and other work supplied by Armani (totalling $75,096.09) and the supply of doors (item 3.3). Secondly, apart from invoices [51] there is no evidence of precisely what work was done.
4. In those circumstances, it is not fruitful to rely on Mr Zalloua's document, and the invoices that underlie it. Rather, I accept that the Ramvek quotation of 7 March 2019 provides a market based, and therefore, reasonable value for the work performed in connection with the joinery direction. However, it is to be adjusted in a number of ways.
5. First, it includes two items that were not supplied to Armani: items 9 and 10. The fact that Armani had not agreed to pay variations was not to the point. This amounted to $89,651. Secondly, it includes an amount of $52,416 for after-hours installation. It is agreed (albeit for different reasons) that that should be excluded. Fourthly, there is provision for carpet ($7,904) which is clearly not joinery. However, it is accepted that allowance should be made for the fact that the original scope called for sudden finish. Mr Madden's evidence [52] allowed for $80/m2 for this. As there was 27.25m2 of carpet, the claim for carpet should be allowed, but reduced by $2,180. Extracting these amounts, the total for the work amounts is $268,048. That should then be reduced (or decelerated) in accounting for differences in building costs between 2016 and 2019 (i.e. 14.3% or $38,330) leaving a total amount of $229,718.
6. I note that the Ramvek quotation generally included installation of the joinery. This was already included as part of the contract price and so should not be included. However, there is no basis in the evidence for a calculation of the cost of the supply without installation and, for that reason, I have not reduced the figure in [102] to account for installation.

1.9 Is the defendant estopped from relying on cl 15 of the Contract?

1. Valmont argues that Armani is estopped from relying on cl 15 of the Contract or alternatively, that Armani had waived or abandoned any right to rely on that clause. In argument, counsel for Armani, Mr Dawson who appeared with Mr Elliott, relied on an email from Ms Brown to Mr Zalloua in which she said that there were no variations under the Contract and it was a capped price contract. That was not an accurate understanding of the contract. This assertion, it was argued [53] , prevented Armani from now relying on the clause because to do so would be to approbate and reprobate. Counsel explained [54] that the email created the assumption on the part of Valmont that there was no point in seeking written confirmation or approval of variations in strict compliance with cl 15. He also referred to the prevention principle [55] and to the decision of the High Court in Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 (Gardiner).
2. There are two insuperable difficulties facing the acceptance of Valmont's argument. First, it is not supported on the facts; and secondly, it is not pleaded.
3. Before turning to the email of 11 April 2016, it may be recalled that, on several occasions variations were agreed to, and paid, without insistence on compliance with the terms of cl 15: see CV1 (at [63]), CV3 (at [65]) and CV9 (at [67]) above. Armani rightly acknowledged that this conduct might lend support to an estoppel. Armani also accepted that there may be an estoppel in respect of the façade variation. I will return to those. For present purposes, it may be noted that whatever may have been the situation up to 11 April 2016, it came to an abrupt halt following Ms Brown's email of that day.
4. On 11 April 2016 there was a project meeting. The minutes of that meeting refer to a number of variations and record that they were noted. [56]
5. By email sent 6:06pm on 11 April 2016 [57] , Mr Takach, Valmont's contract administrator, (copying Mr Zalloua in) sent Ms Brown a contract variation spreadsheet with an amount of $258,241.62 (excluding GST), asking her to review it and confirm her acceptance of it.
6. Ms Brown replied promptly by email at 6:24pm the same day: "There are no variations on this project. It is a capped off cost which means items cannot be issued under variation and it is a lump sum amount which covers the project. I am happy to discuss this anytime. Please see the original paperwork which secured you the project 11th December. If you would like to deviate from this original agreement - let's discuss what and why." There is no document dated 11 December in evidence.
7. There was no immediate response to that email. Ms Brown and Mr Zalloua corresponded the following day; however, they did not deal with the issue of variations [58] until an email from Mr Zalloua at 5:00pm. [59] He wrote (relevantly): "Please find attached the variations that still require approval. … We have proceeded with the structural steel works which will commence installation as of tomorrow evening. We require approval of the remaining variations for the façade design prior to these works being completed." Ms Brown replied by email at 7:48pm on 13 April 2016 [60] : "I do not understand why you are sending variations on a project that has a fixed price? To be sending variations at this late stage is not in line with a collaborative approach. It was agreed on 7/12/15 at your offices that this sum was to be 'capped off' cost. No additional project costs or provisional sums can be applied, this was the agreement. I think if you check your correspondence and records you will find that you were in possession of the updated drawings (see attached email) prior to 1 - agreeing on a sum and 2 - signing the contract of agreed sum so the agreement stands as was intended. Additionally you want to refer to the original quote - the initial façade design with glass and steel - is far more expensive than the one we are using - so logically additional costs would not be applicable. You are contracted for completion of the project and are aware you cannot stop works. I hope that you can see reason and recall the agreed terms as they were and we can complete the project as we started out - with your goal of long term benefit to Valmont in a new sector and a quality project for us. I am happy to meet you tomorrow not to agree on additional costs but to discuss the schedule of works."
8. This email prompted a response from Mr Zalloua at 10:25pm that evening [61] : "Clearly we are at odds with this situation. Firstly you have already approved in writing that the Structural steel variation was approved, so I don't understand your reasoning that there can be no variations and it was a fixed cost contract. Secondly the contract both parties has signed is not a fixed price contract with no variations allowed so I am a little baffled as to why you feel there is no variations on this project. Valmont was happy to agree terms on the drawings that were issued and priced on, Valmont is not in a position to absorb costs of a complete redesign of the façade which had to be completely redesigned both structurally and in finishes. We are not talking about a $10,000 variation. This is significant and Valmont has continually made you aware of the costs long before now. The façade was noted as a provisional sum on our quotation due to the lack of detail around what was being completed, the standard practice is the provisional sum is adjusted to suit the new drawings that were issued. Unfortunately Valmont is not in a position to continue to proceed with these works without written approval, we will complete the structural steel works as we have been issued an approval for this, however no further works will be completed until we have a resolution to the variations. Valmont has continued to work in good faith and with Armani's best interest at heart and it is hard to fathom that we are in this situation when all our correspondence has been so clear from the outset. I am not willing to meet to discuss the schedule tomorrow morning if you are not willing to discuss the variations as it will be of no benefit to either party."
9. It appears that, in spite of the last paragraph in his email, Mr Zalloua did meet Ms Brown the following morning. At 10:26am on 14 April 2016, she wrote to him [62] : "From our conversation this morning it seems we are both on the same page and want the same outcome. In keeping with this Armani agree to pay the full contract sum of the project as per our conversation this morning no variations will apply to works. 'The contract sum is a fixed project price inclusive of all items - excluding those supplied by the client'. I am happy with our agreement to work together moving forward for a collaborative approach to the completion of works."
10. Mr Zalloua replied to this email at 3:53pm that afternoon: "Thanks Camilla, for the clarification on the contract, however the variations are allowed under clause 15 of the contract. Regardless the offer we discussed this morning is as below; * Valmont receives its full contract sum of $989,810.00 exc. GST * Armani pays all costs associated with the joinery received from Sunbright Construction Company totalling $1,334,545 [63] which is as per the contract. Confirmation that Armani will not reduce or alter the contract amount to fund the payment of Sunbright or any other associated costs with the furniture ordered from China. * Valmont will pay all costs associated with rectification and completion of the joinery received from Sunbright. This will be paid from the payment of the full contract sum as stipulated in point 1. * Valmont will complete the façade works and will complete all unapproved variations on the basis of the above. Written confirmation is required prior to Valmont proceeding on this basis."
11. There was no reply to that email in evidence. Neither Mr Zalloua nor Ms Brown gave evidence about the meeting on the morning of 14 April 2016.
12. Leaving aside what may have been said, or assumed but not proved on the evidence, several observations may be made from this correspondence. First, Mr Zalloua appears to have initially overlooked or misunderstood the entire agreement clause in cl 1.1 of the Contract and to have wrongly thought that the Contract allowed for a provisional sum for certain items. Secondly, at least by 12 April 2016, Mr Zalloua was aware of the requirements for variations in cl 15 of the Contract: noting the need for written confirmation. Thirdly, if he had been under any misapprehension at that time, there is no doubt that by 14 April 2016 he had either reverted to the Contract and read cl 15 for himself or had been told about it; he expressly refers to it in his last email to Ms Brown on that day.
13. For those reasons, nothing Ms Brown wrote in her email of 11 April 2016, or subsequently, led Mr Zalloua to assume that cl 15 was to be relied on and that Valmont could carry on with variations without regard to the procedures laid down by that provision. For that reason alone, Valmont's estoppel argument must be rejected.
14. The same facts reveal that there was also no waiver (in the sense of election, forbearance, abandonment) as understood in light of the decision in Gardiner. Armani neither chose between inconsistent rights and, as is evident from its defence of these proceedings, abandoned its right to rely on cl 15.
15. Next, it is necessary to consider the pleadings.
16. In its defence to each of the claimed variations, Armani relied, amongst other things, on cl 15.2 (referred to as "Express Release and Waiver") in response to the claim that it was required to pay the plaintiff for works described as variations [see the following paragraphs of the defence: 21(d), 27(d), 34(d); 39(d); 45(d); 51(d); 57(d); 63(d); 69(d); 75(d); 82(d); 88(d); 94(d); 100(d); 106(d); 111(d); 116(d); 121(d)].
17. In its Reply, Valmont pleaded "estoppel, waiver and abandonment" in answer to Armani's reliance on cl 15: Reply at [1]. There follows a recitation of six facts, none of which included the 11 April 2016 email from Ms Brown or the later related correspondence set out above: "… 2. On 21 January 2016, Armani notified Valmont of revised drawings for the works to be performed under the Works Contract and instructed that such drawings were "for your team", thereby implying that Armani was directed to perform works under the Works Contract in accordance with the revised drawings. Particulars Email from C Brown of Armani to M Zalloua of Valmont sent at 11:19am on 21 January 2016, a copy of which is at Tab 12, p281 of Exhibit MZ-1 to the affidavit of Marcel Zalloua sworn 12 July 2018 (Zalloua Affidavit). 3. On or about 22 January 2016, Armani issued revised drawings to Valmont for the works to be performed under the Works Contract. Particulars Revised drawings marked "22/01/2016 Issue for Construction", a copy of which is at Tab 13 of Exhibit MZ-1 to the Zalloua Affidavit. 4. On 11 February 2016, C Brown of Armani asked M Zalloua of Valmont as to the price which the façade works under the Works Contract were "coming in at", thereby implying that there would be additional payment to Valmont in respect of any additional or variation work which Valmont was to perform under the Works Contract. Particulars Email from C Brown of Armani to M Zalloua of Valmont sent at 1:17pm on 11 February 2016, a copy of which is at Tab 14, p322 of Exhibit MZ-1 to the Zalloua Affidavit. 5. On 16 March 2016, Armani notified Valmont that all claims for additional payment for additional work or variations to the works under the Works Contract were "approved" and did not stipulate any requirement for strict compliance with clause 15 of the Works Contract for such approval. Particulars Email from C Brown of Armani to A Takach and M Zalloua of Valmont sent at 5:16pm on 16 March 2016, a copy of which is at Tab 31, p417 of the Zalloua affidavit. 6. On 17 May 2016, Armani notified Valmont that it was "happy to agree" upon additional payment to Valmont for additional work or variations to the works under the Works Contract upon completion of the works and did not stipulate any requirement for strict compliance with clause 15 of the Works Contract for such additional payment. Particulars Email from C Brown to Mr Zalloua sent on 11:54am on 17 May 2016, a copy of which is at Tab 34, p439 of Exhibit MZ-1 to the Zalloua affidavit. 7. On 18 May 2016, Armani confirmed to Valmont that there would be "extra moneys" to Valmont for additional work or variations to the works under the Works Contract and did not stipulate any requirement for strict compliance with clause 15 of the Works Contract for such extra payment. Particulars Email from C Brown to M Zalloua sent at 1:51pm on 18 May 2016, a copy of which is at Tab 36, p462 of Exhibit MZ-1 to the Zalloua affidavit." (Emphasis in original)
18. Next, at [8] of the Reply, it is pleaded that, on the basis of these facts: 1. Valmont adopted the assumption that Armani waived or did not insist on strict compliance with cl 15 in relation to paying Valmont for performing additional work or variations to the works under the Contract (Payment Assumption); 2. "the Payment Assumption was shared, or alternatively encouraged or acquiesced in by Armani"; 3. "in the event that the Court determines that Valmont did not comply strictly with clause 15 of the Works Contract, such non-compliance was based on and in reliance on the Payment Assumption"; 4. by reason of the matters pleaded in [2] to [7], "Valmont and Armani conducted the relationship between them on the basis of the Payment Assumption"; and 5. "Armani knew of, or should be taken to have known of, or ought to have been aware of, Valmont's reliance on the Payment Assumption".
19. Valmont then pleaded that it would suffer detriment if Armani were permitted to deny the existence of, or depart from the Payment Assumption. Finally, Valmont pleaded that Armani is estopped from denying the existence of, or resiling from the Payment Assumption: [11]. Relying on precisely the same facts, Valmont pleads, in the alternative, that Armani waived the requirement for compliance with cl 15 of the Contract or abandoned cl 15.
20. In answer to the pleaded Payment Assumption, Armani relied on the correspondence commencing with the 11 April 2016 email from Ms Brown.
21. The pleaded estoppel case cannot survive the 11 April 2016 email. If there had been any conduct of Armani's prior to that time that led Valmont to assume that compliance with cl 15 was unnecessary, that came to an abrupt halt with that email. Certainly, the allegation that Armani shared that assumption could not be established in light of the email (and was, in any event, abandoned expressly in oral submissions). [64]
22. As I have mentioned, Valmont also relied on election in its Reply on the basis of the same facts as it relied on to claim an estoppel. In its written submissions Valmont appears to support the claim of an election as follows [65] : "… B. The Defendant breached the variation procedure by maintaining an intransigent and absolute position that there was no contractual entitlement to vary the Contract Price. In doing so the Defendant renounced the benefit of the clause 15 variation mechanism: see Gardiner. C. Having rejected the operation of clause 15 and clause 16, the Defendant cannot now seek to invoke it in defence of the Plaintiff's entitlement to variations and EOTs - the Defendant cannot approbate and reprobate; …"
23. It is not at all clear what this means. In oral submissions, Mr Dawson emphasised that the point was that Armani cannot "approbate and reprobate". In other words, that it could not completely disavow the contractual availability of variation and then rely on that provision to dispute entitlement to variations that did not conform with the procedural requirements of the contract. [66]
24. The phrase "approbate and reprobate" is a synonym for the equitable doctrine of election. [67] As the plurality explained in Gardiner (at [57] referring to Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 470 [66]): " … Equity fastens upon the conscience of a party taking under a deed or will and requires the party to choose between taking the benefit and accepting the burden of any stipulated conditions or rejecting the benefit. …"
25. Once again, this argument suffers the difficulty of relying on the 11 April 2016 email and was not pleaded. In any event, in spite of relying on Gardiner, Valmont did not explain how the doctrine of equitable election applied in a commercial contract for the performance of building works.
26. The equitable doctrine is quite distinct from, and has no connection to, the two common law principles of election, the relevant one of which was explained by the plurality in Gardiner at [58]: "… If, then, something happens which gives rise to the existence of two alternative rights, and one of those rights is satisfied, the other is no longer available. …"
27. Here, the plaintiff does not point to, and certainly did not plead, any such conflicting rights.
28. The second type of common law election, relating to a choice between conflicting remedies, does not apply here.
29. To the extent that the word "renounce" in [125] above is intended to reflect the arguments dealt with in Gardiner at [88]ff, it must also fail. First, again because it was not pleaded. Secondly, because the term is a statement of a conclusion: Gardiner at [90]. In any event, the effect of the 11 April email was not to renounce any particular right held to Armani's benefit, but to deny the benefit of the variation clause to Valmont. Armani never renounced its right to issue directions in connection with the work; it had done so from the beginning and did so until the end.
30. For each of those reasons, but primarily because of the gap between the pleaded case and Valmont's ultimate position, subject to the following exceptions, Armani is entitled to rely on each of the provisions in cl 15 in its defence of Valmont's claims insofar as they relate to anything done after 11 April 2016.
31. The situation prior to 11 April 2016 is different.
32. It was not in dispute that Armani was aware that the revised plans issued on 22 January 2016 would require additional work and costs due to the changes to the façade. Ms Brown inquired about progress with the façade and the price it was going to come in at [68] and confirmation by Mr Zalloua, in a telephone call (not questioned by Ms Brown) that it was difficult to finalise but he did not think it would exceed $300,000. [69]
33. On 16 March 2016 Valmont sent a "variation calculation spreadsheet" to Ms Brown for her review and approval. [70] The items in the spreadsheet included items CV1 and CV3 referred to above and an item relating to the structural steel forming part of the façade works. This did not strictly comply with cll 15.1 or 15.2. Nevertheless, Ms Brown replied, stating that all items were approved and that "the structural steel will be address [sic] when I have had a look at the files and a discussion with Marcel". There is no question that Armani was aware, at that stage, that Valmont was going to proceed with all of the additional works in the spreadsheet and, by extension, with the additional works relating to the changed façade design.
34. The fact that the work was carried out supports the inference that the conduct of Armani encouraged Valmont to proceed with the work, in spite of the provisions of cl 15 of the contract. Having carried out the work on that basis, it would occasion detriment to Valmont if the assumption was no longer maintained. In those circumstances, it would be unjust for Armani to rely on the terms of cl 15.2 in relation to these items and it is estopped from doing so. For those reasons, the claims for the works referred to as CV1, CV3 and CV12 must succeed.
35. Armani also accepted that this conclusion extends to CV9.
36. The balance of the variation claims must be rejected. In particular, as is revealed in the invoices relied on by Valmont [71] , the joinery work contained in CV35 was, almost exclusively, performed after 11 April 2016. That was at a point where it no longer assumed that it could expect any payment for variations without fulfilling the conditions in cl 15.

1.10 Are the direct costs claimed by the Plaintiff reasonable, having regard to clause 15.5?

1. This issue only arises in connection with the variations CV1, CV3, CV9 and CV12. The first three are not in dispute. My conclusion as to the amount for CV12 addresses this issue.

1.11 Alternatively, what is the Plaintiff's claim in quantum meruit?

1. As I have noted, I have assessed the relevant claims on this basis and the issue requires no further response.

1.12 What is the Defendant's negative variation claim?

1. This issue highlights the importance of parties complying with court orders. Although listed as an issue, with an unadorned reference to the amount of $37,379.35, neither the words "negative variation" nor the amount of $37,379.35 appear anywhere in the written submissions. Indeed, a search of the transcript reveals that the words "negative variation" are mentioned twice [72] , but by the plaintiff's counsel, not counsel for the defendant, and there is no mention of the figure $37,379.35. The references in the transcript are to allowances made by the plaintiff in the first variation claim in respect of the costs of the façade. [73]
2. I have considered the possibility that Armani has addressed this issue in its submissions at [15] under the heading "Other Contract Price Adjustments". This claim is based on the assertion that Armani supplied material that was within Valmont's scope of work and points to invoices in amounts that Mr Madden has considered as fair and reasonable. The amount claimed is $29,784.52 which suggests that this is not a "negative variation". However, no explanation is given for the legal basis of the claim and, in any event, no attempt is made to point to the evidence that proves the assertion that the items fell within Valmont's scope of works (Mr Madden was asked to assume that it did).
3. If this is the negative variation, a claim may arise under cl 15.6 of the Contract. However, if that is the case, it suffers from one further flaw. Clause 15.6 only operates if Armani "directs a Variation which involves the deletion or omission…". The direction must be made expressly to Valmont. No such direction was pleaded or referred to in submissions.
4. In those circumstances, whatever the claim is, I cannot be satisfied that it has been made out and I reject it.

Summary of conclusions on Valmont's claims

1. The following claims by Valmont have succeeded: 1. Sum owing on completion: $98,981 2. Sums owing for variations performed and not paid: (a) CV9 $3,200 (b) Façade $28,792

2. Completion
3. The next set of issues concerns the time for performance of the work pursuant to the Contract. The first three issues were agreed by the parties:

2.1 What was the agreed Start Date?

1. This was agreed to be 24 February 2016.

2.2 What was the date for practical completion?

1. This was agreed to be 21 April 2016.

2.3 What was the date of practical completion?

1. The parties agreed that this was 11 May 2016.

2.4 What were the valid extension of time claims?

1. Clause 16 of the Contract provided for delays in the works: "16. Delays 16.1. If the Contractor becomes aware of anything which may cause delay to the Works it shall give GAA written notice of that cause and the estimated delay within 2 Business Days of becoming aware. 16.2 If the Contractor has been delayed in achieving Practical Completion by the Date for Practical Completion, the Contractor may be entitled to an extension of time to the Date for Practical Completion if: (a) the Contractor provided notice of the delay in accordance with clause 16.1; (b) the delay is caused by a Qualifying Cause of Delay; (c) within 10 Business Days after the date when the Contractor should reasonably have become aware of the commencement of the delay and, if the delay is continuing, every 10 Business Days thereafter, the Contractor gives GAA a written claim for an extension of time to Practical Completion, setting out in details: (i) the cause of the delay; (ii) the facts of the delay; (iii) the extent of the delay to achieving Practical Completion and the number of days of extension of time claimed; (iv) the date of which the cause of delay first arose; and (v) steps taken by the Contractor to prevent the occurrence of the delay and minimise the consequences of the delay; and (d) neither the delay, its cause, nor the criticality of activities is in any way connected with an act or omission of the Contractor. 16.3 The Contractor will not be entitled to an extension of time where more than one event causes concurrent delays and the cause of at least one of those events is not a cause described in clause 16.2(a). 16.4 GAA may, in determining whether the Contractor is entitled to an extension of time: (a) have regard to whether the Contractor can reach Practical Completion by the Date for Practical Completion without an extension of time; (b) use all information available to GAA at the time it makes its determination, including the Contractor's Program; and (c) have regard to whether the Contractor has taken all reasonable steps to prevent the occurrence of the cause and minimise the consequences of the delay. 16.5 If the Contractor has not strictly complied with clauses 16.1 and 16.2: (a) GAA is not required to determine the Contractor's claim for the extension of time; (b) GAA shall not be liable upon any Claim by the Contractor in respect of a delay; and (c) the Contractor releases and waives any entitlement it may have in respect of the delay, including by way of damages for breach of contract, or negligence where that Claim relates to any delay or disruption which the Contractor may have encountered, irrespective of the cause of the delay or disruption. 16.6 Within 28 days after receiving the Contractor's claim for an extension of time, GAA shall give to the Contractor and GAA a written direction evidencing the extension of time so assessed. If GAA does not grant the full extension of time claimed within 28 days, GAA shall before the expiration of the 28 days give the Contractor notice in writing of the reason. 16.7 The failure of GAA to grant a reasonable extension of time or to grant an extension of time within 28 days shall not cause the Date for Practical Completion to be set at large and the Contractor will be entitled to an extension of time to the Date for Practical Completion of the duration set out in the Contractor's claim for extension of time. 16.8 The Contractor shall not be entitled to include in the cost of any Variation, an amount payable by GAA where that payment relates to any delay or disruption which the Contractor may have encountered, irrespective of the cause of that delay or disruption. 16.9 Notwithstanding that the Contractor has not asked for an extension of time or complied with clause 16.1, GAA may, in its sole discretion, and for the sole benefit of GAA, at any time and from time to time and for any reason, extend the Date for Practical Completion." (Emphasis in original)
2. The critical provisions are cll 16.1 and 16.2 which provide a mechanism for dealing with potential delays that may affect the date of practical completion. The importance of this mechanism is highlighted by cl 16.5 which effectively operates as a waiver provision in Armani's favour (much like cl 15.2).
3. Valmont argues that it made three extension of time claims under the contract: 1. an "upfront" extension of seven weeks to 24 February 2016; 2. a seven day claim made on 16 March 2016; and 3. a 10 day claim made on 1 April 2016.
4. Armani addresses the issue by reference to a request by Valmont on 12 April 2016 [74] and 14 April 2016 for an extension to 5 May 2016. [75]
5. The first extension claimed by Valmont is not in dispute: it is agreed that the start date was 24 February 2016.
6. On 16 March 2016, Alan Takach, the contract administrator at Valmont, sent an email to Ms Brown attaching a variation spreadsheet for review and approval and stating that "the structural steel variation will require a 7 day extension of time". [76]
7. Ms Brown replied on the same day stating relevantly: "… All items are approved, the structural steel will be address [sic] when I have had a look at the files and a discussion with Marcel."
8. On 1 April 2016 Mr Zalloua wrote a letter to Ms Brown to "outline the difficulties in accelerating the originally shortened 8 week construction program". Amongst the issues said to have made this acceleration difficult was the need for the structural details to be re-designed to accommodate the façade design. Mr Zalloua explained that: "… this took a great amount of time, further to this it increased significantly the amount of structural steel and manufacturing time required to complete the proposed new structural design. This alone has increased both costs and programme by over 10 days."
9. After further emphasising Valmont's diligence, Mr Zalloua stated: "Valmont will continue to work towards completing the project to the level of detail and quality expected and we will continue to work towards the fast track delivery date of 21st April 2016."
10. Ms Brown wrote to Mr Zalloua by email dated 7 April 2016 at 1:15pm, stating that she had spoken to her boss and that he "is understanding of the project delays but cannot accept a store opening after the 21st April" (emphasis in original). Although there is some ambiguity about this, the parties accept that there was an extension of the date for practical completion until 21 April 2016.
11. The following matters arise from this correspondence: first, the only correspondence that actually sought an extension of time was the 16 March email. At that time, Valmont's program schedule showed an expected handover (on practical completion) date of 7 April 2016. [77] The minutes of the Contract meeting held on 7 March 2016 still noted that the handover date was 7 April. [78] The minutes of the next meeting (29 March 2016) only record that the handover date was "note". [79]
12. Valmont sent a revised program schedule on 1 April 2016 [80] indicating a completion date of 21 April 2016. This accords with the letter sent by Mr Zalloua on that day.
13. The next matter to note is that the 1 April letter refers to a delay of 10 days. That must comprehend the seven days already referred to in the 16 March 2016 letter rather than an additional 10 days. It is put as the current state of affairs rather than a further anticipated delay. Further, and importantly, the letter of 1 April does not expressly request any further extension of the completion date. If, however, it is taken in the context of the change in the programming from March to April, it may be seen as a request for an extension up to 21 April 2016.
14. Given that the 29 March 2016 minutes merely "note" the issue of completion and are closely followed by a program with an extended date and a lengthy explanatory letter, I infer that there was a discussion about an extension at the 29 March meeting. However, this extension was granted by Armani in the email of 7 April 2016 from Ms Brown. In that way, each of the previous requests for an extension were rolled up and included in the 21 April 2016 date.
15. That leaves the references to extension until 5 May 2016.
16. The first of these was made in an email from Mr Zalloua to Ms Brown dated 12 April 2016. [81] The email attached a variation calculation that referred to an extension of seven days for steel [82] , some variation quotations, and a revised program schedule. [83] Mr Zalloua wrote about that program: "… Further to this please find attached the revised program which captures the delays incurred to the projects around the variations … at this time we are only in a position to hand the store over on the 5th May 2016 … This is the realistic time frame we require to complete the project …"
17. On 14 April 2016, Dean Harris, Valmont's construction manager, wrote to Ms Brown by email referring to a proposed schedule for stock delivery and other matters and stated: "We will not be able to supply a safe and clean site for the above until the 2nd for an opening and trade start of the 5th."
18. The mechanism in cl 16 by which Valmont could become entitled to a delay in practical completion of the Work required two critical matters: first, that notice of the cause and estimated delay be given within two Business Days of Valmont becoming aware of anything which may cause delay to the Works (cl 16.1) and, secondly, that the delay is caused by a Qualifying Cause of Delay. That phrase is defined to mean the matters set out in the relevant part of the Details. They are: "A breach of contract by [Armani]. A wilful act or omission of [Armani], its personnel or agents other than an act or omission in accordance with this Contract. Failure by Armani to provide the Client Supply Items to [Valmont] by the required date set out in Schedule 2."
19. The reason for the delay set out in the 12 April email was, essentially, the façade works. This was a matter that Valmont had been aware could cause delay since 15 March 2016 and it had sought an extension at that time. Critically, however, the façade design was not a Qualifying Cause of Delay. For that reason, there was no entitlement to an extension of the time for practical completion caused by it.
20. The same reasoning applies to the 14 April email.
21. For those reasons, the requests for an extension made in April 2016 did not comply with cll 16.1 and 16.2 and, subject to the remaining issues, Valmont was not entitled to an extension of time for Practical Completion.

2.5 Was the Plaintiff otherwise prevented from completing the Construction Works by the Defendant's conduct?

1. A party whose conduct prevents compliance by another party with its obligations under a contract cannot insist on the performance of those obligations. This is known generally as the prevention principle: Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82 at [114]. The principle is especially applicable to delays in the performance of contractual obligations. However, the principle can be modified or negated by contractual provisions which enable a party to avoid the impact of the other party's conduct, particularly by obtaining an extension of time for the performance of its obligations: Probuild at [115]. That is what cl 16 does. For that reason, it does not matter whether or not Armani's conduct actually caused a delay in practical completion.
2. If I am wrong about that, I would find that Armani did not cause the delay. The cause of the delay was the steel required by the façade design. Valmont had that design as early as 22 January 2016 and yet continued to project a completion date of eight weeks in its project schedules.

2.6 Even if the Plaintiff was otherwise prevented from completing the Construction Works by the Defendant's conduct, is the Plaintiff precluded from an extension of time through operation of clause 16?

1. The answer to this is "yes". Clause 16 ousts the operation of the prevention principle and denies operation to applications for extension unless they comply with the provisions of the clause.

3.1 Is the sum of $7,000 per day liquidated damages void as a penalty?

1. In its cross-claim, Armani claims damages for the delay in achieving practical completion. The principal basis for this claim is the liquidated damages provision in the contract which allows it to claim $7,000 per day of delay: cl 18. Valmont contended that the provision for liquidated damages is void as a penalty.
2. Parties to a contract are entitled to stipulate what damages will be payable in certain circumstances and the Courts will enforce those stipulations unless it is a penalty. A penalty is a collateral stipulation that has the purpose (or predominant purpose) [84] of punishing the party in default and thus compelling performance: Andrews v Australia & New Zealand Banking Group Ltd (2012) 247 CLR 205; Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 (Kiefel at [29], French CJ agreeing; Gageler at [127], [159], 166]; Keane J at [254], [259], [273]).
3. One way of testing whether the requirement to pay a particular sum will have this purpose is if it is extravagant, out of all proportion or unconscionable in comparison to the greatest loss that could conceivably be proved to have followed from the breach: Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 at 667 [27] quoting AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 at 190 (Mason and Wilson JJ), Paciocco (Kiefel J at [29], [54]; Gageler J at [158]-[162]; Keane J at [221]).
4. The question is to be asked in relation to the time of entry into the contract rather than with the benefit of hindsight: Esanda Finance Corporation Ltd v Plessnig (1989) 166 CLR 131.
5. Valmont contends that the requirement that it pay $7,000 each day of delay of practical completion was a penalty because Armani only intended to close its existing store on 30 January 2016 and did not intend to commence operating its new store prior to 1 May 2016. The second of these assertions is based on a letter from Camilla Brown addressed "To whom it may concern". [85] In it, Ms Brown wrote to confirm the appointment of Valmont for the construction of the EA Sydney Airport store and that (without correction): "The works will be running from 10th January until 30th April with a likelihood of completion prior to date."
6. The purpose of the letter was to enable the documentation to be submitted to the Airport and ASIC (I infer, for relevant approvals). [86]
7. There are a number of difficulties with that submission. First, the date for practical completion in the Contract was fluid in that it was subject to extension under cl 16. Thus, even though the completion date was initially 5 March 2016 it was in the reasonable contemplation of the parties that the date could be extended. Secondly, the letter itself actually contemplates completion prior to 30 April 2016.
8. However, the real problem for Valmont is that there was no evidence whatsoever to establish that $7,000 a day was out of all proportion to the damage that Armani could conceivably suffer in the event of delay. The question of damage extends beyond mere monetary loss and includes all varieties of commercial interests.
9. In circumstances where the works in question were to be carried out on a high end retail shop it is not difficult to imagine the loss of reputation and customer interest that might be caused by delay in a highly competitive market like the retail area of Sydney International Airport.
10. There is no doubt that the liquidated penalty provision was inserted, at least in part, to encourage timely completion of the works but, on the facts of the case, I am not satisfied that it did so by imposing a penalty for lateness.
11. For those reasons, Valmont is liable to pay Armani liquidated damages under cl 18 of the Contract from 21 April 2016 until, and including 11 May 2016. That is a period of 20 days, meaning the damages payable are $140,000.

3.2 Alternatively, did the Defendant suffer any loss and damage, and if so how much?

1. If I am wrong in respect of the liquidated damages issue, Armani is able to claim the amount of actual loss suffered as a result of Valmont's delay. Those losses are agreed at $57,725.04.

4.1 What is the true nature, extent and reasonable cost of rectification of any defects?

1. Armani's second claim in its cross-claim is in respect of defects.
2. Clause 19 of the Contract made provision for defects: "19. Defects 19.1 The Contractor must promptly rectify any Defects listed in a defects list approved by GAA or notified to the Contractor: (a) during the performance of the Works; (b) at Practical Completion; (c) during the Defects Liability Period. 19.2 A defects list notified under clause 19.1 can also require the Contractor to remove defective work from the Site. 19.3 If the Contractor fails to rectify any Defects within 10 Business Days of notification, GAA may rectify the Defects and the resulting cost incurred by GAA will be a debt due from the Contractor to GAA. 19.4 Where any Defect affects GAA's business operations, such Defect will be considered an urgent Defect and the Contractor must rectify the Defect within 48 hours of GAA notifying the Contractor of the Defect or such longer time as is agreed by GAA acting reasonably. 19.5 If the Contractor fails to rectify an urgent Defect within the time required by clause 19.4, GAA may rectify the Defect and the resulting cost incurred by GAA will be a debt due from the Contractor to GAA. 19.6 Where GAA has given the Contractor a notice pursuant to clause 19.1, a separate Defects Liability Period (commencing on the date that the rectification works have been completed) shall apply to the rectification work. If a separate Defects Liability Period applies, notwithstanding any other clause of the Contract the Contractor must promptly rectify any Defect to the rectification work which is notified to the Contractor during the separate Defects Liability Period. 19.7 Instead of issuing a notice under clause 19.1 GAA may issue a notice accepting the defective work in which case the greater of: (a) the cost to rectify the defect (if it was to be rectified); (b) the diminution on the value of the Works, will be subtracted from the Contract Sum and at GAA's election (in its absolute discretion): (c) deducted from payments due to the Contractor (if any); or (d) recovered from the security."
3. Valmont argued that some of the defects claimed by Armani were not in fact defects, but were incomplete work. It is difficult to understand the difference in circumstances where Valmont was required to complete the Works and, by its own admission, it did not. However, the answer to this argument is that "Defect" is defined in the Contract to include "omissions". For that reason, whether or not a particular claim made by Armani was a defect in the narrower sense of faulty work, or an omission generally makes no difference.
4. Valmont raises a number of other arguments in respect of different items claimed by Armani in this respect. It is convenient to deal with them in connection with each relevant item. First, though, it is necessary to outline a few salient background facts.
5. On 17 May 2016 there was a site meeting attended by Mr Zalloua, Ms Brown and Mr Molteni. Amongst the matters discussed were the final payment by Armani, variations to the Works, and defects to be fixed by Valmont.
6. Following the meeting, Ms Brown sent Mr Zalloua an email dated 18 May 2016 [87] saying that she was compiling an incomplete work list and would also prepare a defects list. She then suggested a timetable for the incomplete works. She suggested that 95% of the contract price would be paid on 8 June. Mr Zalloua replied by email saying that Mr Molteni had agreed to pay 90% "now with the remainder to be withheld until completion including variations". [88]
7. Ms Brown replied saying that 95% of the price would be paid on completion. [89] Mr Zalloua appeared to accept that position in his further reply, seeking confirmation that the variations would be paid for. [90] Ms Brown was non-committal in reply on saying that confirmation of extra moneys for the project would come at the end.
8. On 20 May 2016 a list of 10 defects was sent to Mr Zalloua. Subsequently (although it is not clear when) a formal defects report dated 19 May 2016 was prepared by Armani and sent to Valmont. [91] This report itemised 48 defects. On 23 May 2015 a further report was prepared and sent, containing comments from Armani (both Australia and Milan) and SACL. [92] This report included 54 items.
9. Another meeting took place on 1 June 2016. Ms Brown sent an email later that day referring to a number of items that had not been resolved and indicating what had been agreed to be done in respect of each item. [93] In his affidavit of 11 May 2020, at [75], Mr Zalloua says of this email that Ms Brown confirmed that she would "… release all outstanding moneys-with the exception of the 5% which is to remain as standard agreement of a 6 month defect retainer". What he did not say in his affidavit, is that this statement was qualified by the following "[u]pon completion of all these major items by the 17th …".
10. The works, however, were not complete by 17 June. Indeed, there was still correspondence about some of the defects or incomplete items in September 2016. By this stage, Armani had engaged other contractors to carry out some of the works. Valmont was aware of that. [94] A defects list with comments was sent by Valmont to Gensler [95] on 15 September 2016. [96] There was also considerable correspondence about variations and payment for them. On 31 October 2016 Mr Zalloua wrote to Mr Molteni asking for release of the final 10% of the Contract Sum and a minimum of $250,000 for variations pending assessment of the total amount. He said that, if those amounts were paid, Valmont would complete the work but, if not, it could not complete any further work for the project. [97]
11. Mr Molteni replied on the same day, with comments about some of the variations but saying that the variations had to be investigated. There was no response to that email.
12. On 2 November 2016 Mr Molteni noted by email to Mr Zalloua that there had been no response and that Armani had appointed another company to conclude the works at the airport. [98]
13. Any defect in, or omissions from, the Works amount to breaches of Valmont's obligation to complete the Works. As such, Armani is entitled to an award of damages which puts it in the position, as far as possible, that it would be in if the contract had been performed. In cases brought by a building owner against a builder, that generally means that the owner is entitled to the cost of making the work conform to the contract, subject to the qualification that the work must not only be necessary to produce conformity, but also a reasonable course to adopt: Bellgrove v Eldridge (1954) 90 CLR 613, 617-618; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [15].
14. There are 10 items claimed as defects. Each is dealt with in a report by Mr Zakos for Armani and Mr Finnane for Valmont. As will be seen, there was little disagreement between the experts as to the reasonableness of the amounts claimed in respect of each item; there was, however, considerable disagreement as to whether each item was able to be claimed.

Item 1: Mirror wall works

1. This item is a mirror that is shown in drawing A02.01 and A03.01 immediately behind the LED screen described as "Full Height Video" behind the sales area in the centre of the store. Contrary to Mr Zalloua's evidence, it does not appear in the furniture schedule (drawing A06.02) meaning that it was not a client supply item. It also does not appear in the detail drawing for the LED joinery (A12.66).
2. However, drawing A05.02 shows the details for the wall finishes. In the key to that drawing, the colour for mirror is dark blue and there is a dark blue line on the drawing immediately behind the LED screen. On that basis, this was clearly an item that Valmont was obliged to supply and install. It failed to do so. The experts agree that $1,617.10 is a reasonable amount for that item and that preliminaries of 24% should be allowed. This takes the appropriate award to $2,005.21.

Item 2: Shopfront rectification

1. Mr Zakos says that Valmont was required to install a black cover strip between the neutral pier and the façade bottom from detailed drawing A09.03 (detail 8) [99] . The gap intended to be covered is shown in the photograph that was included in the 19 May 2016 defects report [100] and 23 May 2016 report. [101] Mr Zalloua says [102] that he bought the strip but did not fit it because Armani would not pay for the variations.
2. Mr Finnane says that the drawings were incomplete in respect of this detail. I disagree: drawing A09.03 clearly shows a strip at the point identified as a shadow gap. Mr Finnane's report includes arrows on the details pointing to a different area. In any event, Mr Zalloua understood what had to be done and would have done it had Armani paid him for what he took to be variations for which he was entitled to be paid.
3. The experts agree that a reasonable sum for this item is $8,634 with a 24% allowance for preliminaries making a total of $10,706.16.

Item 3: Black metal blades to wall unit to be changed to bronzed metal finish

1. This item refers to metal vertical mullion blades installed on display walls. The only issue is whether they were required to be black or bronze. Armani relies on a direction given by email on 21 January 2016. [103] That email relevantly states: "Finish to the shopfront metal blades MT:01 is to be bronze anodised aluminium in lieu of bronze stainless steel."
2. This was not a change to the colour, but rather, the material (stainless steel to aluminium) and, in any event related to the façade. Further, the furniture schedule (A06.02) clearly refers to black metal finish for the metal blades. I am not satisfied that this was a defect and reject the claim.

Item 4: Perspex shelves changed from glass

1. This item concerns the shelves for the round display units at the front of the store. The architectural drawings showed that these shelves were to be constructed from "extra-clear transparent glass shelves with black painted borders": drawings A05.02; A12.50; A12.51. They were also to be 145mm wide.
2. Mr Zalloua says [104] that he was concerned with the structural integrity of the drawings for these items. Accordingly, when Valmont's glass supplier provided shop drawings with 84mm shelves, he asked Ms Brown to approve them and she did. [105]
3. He also said that the Perspex shelves were installed as a temporary measure and that he later obtained the glass shelves in order to replace the Perspex shelves, but did not install them because Armani failed to make payments.
4. Irrespective of the approval of the width of the shelves by Ms Brown, it is plain that the shelves had to be glass with black edging. It was a defect not to have supplied and installed shelves of that description.
5. Mr Zakos estimates a cost of $30,340, but this is based on a complete removal and replacement of the entire cabinet. There is nothing to justify that extent of work to rectify the defect. Mr Finnane, on the other hand, and I accept, says that $7,270 would be a reasonable cost to replace the shelves with appropriate shelves. Adding preliminaries, this comes to $9,014.80.

Item 5: Hanging rail height

1. The hanging rails in issue were supplied by Sun Bright and installed by Valmont. There is no issue that they contained incorrect pre-drilled holes that resulted in the shelf height being incorrect. It may be that the origin of this item was not Valmont's fault: it was not required to, and did not, supply the hanging rails. However, its obligation was to install the hanging rails so that they complied with the drawings that formed part of the contract, as varied by the later drawings. In those circumstances, Valmont should have taken sufficient care on installation to ensure that there was no discrepancy in shelf height between the drawings and the rails as constructed. For that reason, the responsibility for the defect lies with Valmont.
2. There is no issue that the reasonable cost of repairing the defect was $13,329.20 or that 24% should be allowed for preliminaries. The total for this defect is $16,528.

Item 6: Glass shelves to have black painted edges

1. This is an agreed defect and there will be an award for $3,152.32 for this item.

Item 8: Display cabinets to be replaced

1. This item relates to four glass display units at the rear of the store. [106] Mr Zakos compared these units to the relevant drawings [107] and found a number of differences:

• the drawings required the shelves to be made of glass but perspex shelves were installed;
• there should have been black coloured edges but there were not; and
• the dimensions of the cabinet are wrong.

1. Mr Finnane does not dispute these conclusions; however, his opinion was that Valmont was not responsible for the supply and installation of the units and so not liable for the defect. His reasoning is expressed as follows [108] : "As the cost of the shelving units are the subject of a reconciliation of the Joinery Provisional Sum and as the builder has not supplied those units and has not claimed for the costs to supply and install the units, in my view, the builder should not be responsible for the costs to supply and install the four glass shelving units."
2. This reasoning is rather opaque; however there are three components to it. The first relies on the provisional sum argument that I have rejected in general. The second is that the builder has not supplied the units and thirdly, that Valmont has not claimed for the costs to supply and install the units. It is not clear what factual basis Mr Finnane relies on for these points. Mr Zalloua does not say that he did not supply and install the units, he only says that he supplied the glass shelves but did not install them because Armani "refused to pay for it". [109] He was asked about this in cross-examination at transcript pp 108-109: "Q: And so, they're glass units that go around the perimeter? A: Correct. Q: And you didn't install any of those? A: No. We bought the glass. We just didn't install that."

(Emphasis added)

1. Mr Zalloua was only saying here that Valmont did not install the glass (which is what "that" in the last answer refers to). He did not say that Valmont did not otherwise install the units. I find for that reason, that Valmont did supply and install the units, albeit with perspex shelves rather than glass.
2. If it is correct that Valmont did not make any claim for the supply of the cabinets, that does not mean that it was not responsible for their supply and installation. The cabinets were originally to be supplied by Sun Bright but, as already discussed, the scope of what Sun Bright was to provide changed. The cabinets were part of the furniture that were no longer to be supplied by Sun Bright. That left Valmont to supply them. It was always part of the works to install them.
3. The experts agree that the sum of $41,361.60 is reasonable for this defect and that there should be preliminaries of 24% but no margin. I will allow $51,288.38.

Item 9: Wall upholstery

1. This is an agreed item for which $2,568.28 will be allowed.

Item 10: Door lock installed

1. This is also an agreed item for which $348.14 is allowed which includes a margin of 27.5%.
2. The defects are summarised as below: Item No Defect Result Amount Awarded 1 Mirror wall works Allowed $2,005.21 2 Shopfront rectification Allowed $10,706.16 3 Black metal blades to wall unit to be changed to bronzed metal finish Rejected 4 Perspex shelves changed from glass Allowed $9,014.80 5 Hanging rail height Allowed $16,528 6 Gloss shelves to have black painted edges Agreed item, allowed $3,152.32 7 Not pressed 8 Display cabinets to be replaced Allowed $51,288.38 9 Wall upholstery Agreed item, allowed $2,568.28 10 Door lock installed Agreed item, allowed $348.14 TOTAL $95,611.29

4.2 To the extent the works are incomplete, was that state caused by the conduct of the Defendant?

1. No. Valmont left the site and did not return because Armani did not comply with its demand to pay it $250,000 on account of variations to which it was not entitled.

4.3 What is the direct cost incurred by the Defendant to rectify the defects?

1. This claim is based on a number of invoices that are asserted to have been for the rectification of defects. They are set out in Appendix D to Mr Madden's second report and dealt with in the table below by reference to the item number in that appendix: Item Contractor Invoice Date and Reference Comment 28 Midas Construction Group 30.9.16 The work is described as "remove and rectify shelving". It does not say what shelving, or what was wrong with it. SCB 1649 29 RJA Retails Joinery 21.11.16 The description is "rectification works … as quoted". The quotation refers to the removal and replacement of aluminium battens. Mr Madden suggests that this was within the defects identified by Armani, but does not say which. The closest defect to this description is the black metal blades that were defect 3 above. This is supported by Mr Zakos' report: see [7.3] at p 13 of his report. I have concluded that that was not a defect: [207]. This claim would have been double counting in any event. SCB 1703 31 API Services & Solutions Pty Ltd 20.10.17 This is described as "repair 2 patch fits on front door … repair break glass … and replace latch on another." SCB 1759 Mr Madden suggests that this is also a defect identified by Armani; however, that item (see p. 13 of Mr Zakos' report) was only for a non-existing lock which is item 10 in the defects list with an agreed value of $348.14. 32 Sidgreaves & Co 21.12.17 This work is for the LED screen mirror, shopfront rectification works, glass edges and replacement of acrylic shelves. This is the subject of a number of defects determinations and is double-counting. SCB 1761

Summary of findings on the cross-claim

1. Armani is entitled to judgment for the following amounts: (1) Liquidated damages: $140,000.00 (2) Defects: $95,611.29 (3) TOTAL $235,611.29

CONCLUSION

1. Under cl 18.3 of the Contract, Armani is entitled to either deduct liquidated damages from payments due to Valmont or to have recourse to security. In its defence, it admitted (at [123]) the final payment under the contract but pleaded that it was "subject to set offs and deductions under the Works Contract". In those circumstances it is not clear which of the options under cl 18.3 Armani has elected to take and, accordingly, it is appropriate to give judgment in favour of each party in the amounts to which I have found it is entitled: see s 90(2)(b) Civil Procedure Act 2005.
2. Each party has been successful in respect of different aspects of its claims and unsuccessful in respect of others. There is little doubt that the costs involved far exceed the amount of the judgments given and it is important not to increase those any further than is absolutely necessary. For those reasons, having regard to the fact that Armani was more successful on its cross claim, the appropriate order for costs is that Valmont pay 50% of Armani's costs as agreed or assessed.

Endnotes

1. Supplementary court book, p 66.
2. Supplementary court book, pp 108-110.
3. Supplementary court book, p 171.
4. Supplementary court book, p 232.
5. Supplementary court book, p 289.
6. Supplementary court book, p 544.
7. Supplementary court book, p 728.
8. Supplementary court book, pp 831-845.
9. Supplementary court book, pp 908-910.
10. Supplementary court book, p 917.
11. Supplementary court book, pp 919-942. The consent was required by statute: Airports (Building Control) Regulations 1966 (Cth), reg 2.03(4).
12. Supplementary court book, p 937.
13. Supplementary court book, p 755. This was the version provided on 22 January 2016 but there was no relevant change to this item from any previous version.
14. Supplementary court book, p 778.
15. As a schedule to the plaintiff's submissions and is a document described as "Variations Bundle" by the defendant.
16. See supplementary court book, p 1024.
17. Affidavit of Marcel Zalloua dated 12 July 2018 at [59].
18. Supplementary court book, pp 873 and 875.
19. Supplementary court book p 1034.
20. Ex 6, A1 and A2.
21. Supplementary court book, p 1093.
22. Affidavit of Marcel Zalloua dated 12 July 2018 at [82].
23. Supplementary court book, p 179.
24. Supplementary court book, p 1201.
25. Supplementary court book, pp 1553-1554.
26. Supplementary court book, p1231.
27. Affidavit of Marcel Zalloua dated 12 July 2018 at [89].
28. Affidavit of Marcel Zalloua dated 12 July 2018 at [91].
29. Affidavit of Marcel Zalloua dated 12 July 2018 at [93].
30. Affidavit of Marcel Zalloua dated 12 July 2018 at [95]-[98].
31. Supplementary court book, p 991.
32. Affidavit of Marcel Zalloua dated 12 July 2018 at [100].
33. Drawing A12.50; item EA 02A.
34. Affidavit of Marcel Zalloua dated 12 July 2018 at [105].
35. Affidavit of Marcel Zalloua dated 12 July 2018 at [108].
36. Supplementary court book, p 179.
37. Affidavit of Marcel Zalloua dated 12 July 2018 at [110].
38. Supplementary court book, p 1399.
39. Affidavit of Marcel Zalloua dated 12 July 2018 at [112].
40. Affidavit of Marcel Zalloua dated 12 July 2018 at [116]-[119]. Marmorino is a type of plaster finish.
41. Affidavit of Marcel Zalloua dated 12 July 2018 at [121].
42. Affidavit of Marcel Zalloua dated 12 July 2018 at [125].
43. Supplementary court book, p 831.
44. Supplementary court book, p 1697.
45. Report of Stephen Abbott, SJA Construction Services Pty Ltd dated 25 March 2019.
46. Report of Stephen Abbott, SJA Construction Services Pty Ltd dated 25 March 2019, item 1.
47. Report of Stephen Abbott, SJA Construction Services Pty Ltd dated 25 March 2019, item 7, p 16.
48. Report of Stephen Abbott, SJA Construction Services Pty Ltd dated 10 July 2020, item 4, p 12.
49. Ex 4.
50. Ex 6, p 4, item A8.
51. Supplementary court book, pp 1558-1560 and 1727.
52. Court book, tab 72, p 2110 at 7.6.
53. Tcpt, 29 July 2020, p 214 (24).
54. Tcpt, 29 July 2020, p 215.
55. Tcpt, 29 July 2020, p 215 (49).
56. The minutes are at supplementary court book, p 1159.
57. Supplementary court book, p 1153.
58. Supplementary court book, pp 1161-1162.
59. Supplementary court book, p 1163.
60. Supplementary court book, p 1167.
61. Supplementary court book, p 1166.
62. Supplementary court book, p 1166.
63. This is Hong Kong dollars: see supplementary court book, p 849.
64. Tcpt, 29 July 2020, p 213 (41) - p 214 (4).
65. Plaintiff's submissions dated 28 July 2020 at [3.4(d)(ii)].
66. Tcpt, 29 July 2020, p 214 (23-30).
67. Agricultural & Rural Finance Pty Ltd v Gardiner (2000) 238 CLR 570 at [57] referring to Lissenden v CAV Bosch Ltd [1940] AC 412 at 417.
68. Supplementary court book, p 882.
69. Affidavit of Marcel Zalloua dated 12 July 2018 at [31] - [33].
70. Supplementary court book, pp 1034 and 1035.
71. Supplementary court book, pp 1558 -1564.
72. Tcpt, 20 July 2020, p 23 (40) and p 25 (27).
73. Supplementary court book, p 1173.
74. Supplementary court book, p 1167.
75. Supplementary court book, p 1189.
76. Supplementary court book, p 1034.
77. Supplementary court book, p 917.
78. Supplementary court book, p 1013.
79. Supplementary court book, p 1105.
80. Supplementary court book, p 1092.
81. Supplementary court book, pp 1167-1168.
82. Supplementary court book, p 1169.
83. Supplementary court book, p 1177.
84. There is some issue about which of these is correct but it is unnecessary to resolve that issue.
85. Supplementary court book, p 491.
86. Supplementary court book, p 445.
87. Supplementary court book, p 1395.
88. Supplementary court book, p 1394.
89. Supplementary court book, pp 1393-1394.
90. Supplementary court book, p 1393.
91. Supplementary court book, p 1414.
92. Supplementary court book, p 1447.
93. Supplementary court book, p 1520.
94. Supplementary court book, p 1616.
95. Ms Brown was, by this stage, no longer working for Armani.
96. Supplementary court book, p 1636.
97. Supplementary court book, p 1691.
98. Supplementary court book, p 1690.
99. Zakos report dated 6 May 2020, p 17.
100. Supplementary court book, p 1416.
101. Supplementary court book, p 1447.
102. Affidavit of Marcel Zalloua dated 21 May 2020 at [51(f)].
103. Supplement court book, pp 738-739.
104. Affidavit of Marcel Zalloua dated 21 May 2020 at [53].
105. Supplementary court book, p 1003.
106. See Ex 8, p 33, figure 7.7.
107. A06.01; A12.53; EA 04B and EA04B_SP.
108. Finnane report dated 11 May 2020 at [107], court book p 2513.
109. Affidavit of Marcel Zalloua dated 21 May 2020 at [55(b)]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2020