Alphington Developments Pty Ltd v Amcor Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0022

ALPHINGTON DEVELOPMENTS PTY LTD (ACN 164 529 864)	Applicant
v
AMCOR PTY LTD (ACN 000 017 372)	Respondent

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JUDGES:	WALKER, LYONS and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19–20, 22, 25 November 2024
DATE OF REASONS:	27 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 48
JUDGMENT APPEALED FROM:	[2023] VSC 637 (Sloss J)

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CONTRACT – Construction – Contract for sale of land – Purchaser required to undertake remediation works to land – Vendor required to pay costs ‘properly and reasonably incurred’ by purchaser in undertaking works – Purchaser to notify vendor of discovery of unidentified contamination as precursor to recovery of costs – Contract required notice to be accompanied by letter of environmental consultant – Judge found that purported notices and letters were not ‘valid’ – Whether accompanying letters satisfy criteria under the contract – Compliance with contractual requirements to be assessed on the face of the notice and letter – Court satisfied that each notice contained at least one item of unidentified contamination that complied with contractual criteria – Remittal necessary – Application for leave to appeal granted – Appeal allowed.

CONTRACT – Failure of contractual machinery – Contract imposed obligation on vendor to pay costs ‘properly and reasonably incurred’ by purchaser in remediation of contamination – Contract provided machinery for notification of unidentified contamination as precursor to recovery of costs – Vendor could object to notice and objection to be resolved by expert – Contract required notification of unidentified contamination by purchaser and resolution of any objection by expert prior to remediation being undertaken – Contract also provided machinery for certification of works by quantity surveyor prior to payment – Where extensive unidentified contamination discovered – Where parties made informal accommodation to delay expert determination process – Where parties agreed that remediation works would proceed before objections were resolved – Where parties amended contract to refer ‘all disputes’ about unidentified contamination to ‘the Court’ – Whether contractual machinery failed as a result of informal accommodation or amendment to contract – Contractual machinery failed – Contractual machinery not essential – Even if machinery essential, contract has been part-performed – Court can supply alternative machinery – Form of alternative machinery considered – No reason not to exercise discretion to supply alternative machinery – Remittal necessary – Application for leave to appeal granted – Appeal allowed.

CONTRACT – Breach of terms – Implied duty of co-operation, good faith and fair dealing – Contractual obligation to promptly do whatever other party required of it to give effect to contract and perform obligations under contract – Relevant allegations raised at trial for first time in final submissions – Whether defendant accorded procedural fairness – No error by trial judge – Proposed ground of appeal strictly unnecessary to decide – Leave to appeal refused.

QUANTUM MERUIT – Trial judge did not proceed on erroneous view of the law – Trial judge addressed submissions made at trial – Entirely new articulation of quantum meruit claim made on appeal – Proposed ground of appeal strictly unnecessary to decide – Leave to appeal refused.

PRACTICE AND PROCEDURE – Remittal – Whether utility in remittal – Whether judge made sufficient findings of fact to determine no utility in remittal – Not sufficiently clear that applicant would be unable to establish entitlement to any amount – Remittal ordered.

MannaiInvestment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; Pan Foods Co Importers & Distributors Pty Ltd v Australia & New Zealand Banking Group Ltd (2000) 170 CLR 579; Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689; JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596; Beevers v Port Phillip Sea Pilots Pty Ltd [2007] VSC 556; International Petroleum Investment Company v Independent Public Business Corporation of Papua New Guinea [2014] NSWSC 1289; Gillatt v Sky Television Ltd [2000] 2 BCLC 103; Infiniteland Ltd v Artisan Contracting Ltd [2005] 1 BCLC 632, discussed. Cameron v Cuddy [1914] AC 651; Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 44; Macro v Thompson [No 3] [1997] 2 BCLC 36; Re Malpass [1985] Ch 42, applied; Candoora No 19 Pty Ltd v Freixenet Australasia Pty Ltd [No 2] [2008] VSC 478, distinguished.

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Counsel
Applicant:		Mr A McClelland KC with Ms P Thiagarajan SC and Mr A Petridis
Respondent:		Mr P Collinson KC with Ms K O’Gorman SC and Ms F Hudgson
Solicitors
Applicant:	White & Case
Respondent:	King & Wood Mallesons

TABLE OF CONTENTS

REASONS OF WALKER AND WHELAN JJA

PART A:. RELEVANT BACKGROUND

Introduction

Proposed Grounds of Appeal

The centrally relevant contractual provisions

Other relevant contractual provisions

Correspondence in 2015

Correspondence in mid-2017

The various ‘Master Plans’

Demolition Works

The s 65M process

Asbestos containing material

PART B:. THE JUDGE’S REASONS

The relevant issues at trial

Validity of the UC Notices – a threshold issue

The relevant UC Notices

The judge’s conclusions on validity — overview

Judge’s analysis of UC Notice #1

Judge’s analysis of UC Notice #1 Revised

Judge’s analysis of UC Notice #2

Judge’s analysis of UC Notice #3

Judge’s analysis of UC Notice #4,UC Notice #4 Addendum, UC Notice #7, and UC Notice #8

Summary of judge’s reasons for invalidity

The continuing operation of SC 11.3(b) and the alleged failure of the contractual machinery

Other issues

Determining the SC 11.5(c) issues — the s 65M process

Progress claims 23 to 54 and the Montlaur certificates

Issues of quantum

Jones v Dunkel findings

Alleged breach of SC 17.7 and implied terms of co-operation, good faith and fair dealing

Quantum meruit

Summary of conclusions in the judge’s Reasons

PART C:. CONSTRUCTION OF THE APM CONTRACT

Relevant principles concerning construction of contracts and contractual notices

General remarks on the proper construction of SC 11

Opening clauses of SC 11

Key defined terms

SC 11.3 — Vendor’s obligation to pay

SC 11.5 — Unidentified Contamination

PART D:. GROUND 1 – ‘VALIDITY’ OF THE UC NOTICES

The parties’ submissions on ground 1

Glenvill’s submissions

Amcor’s submissions

Glenvill’s reply

Ground 1 — Analysis

Analysis of Amcor’s asserted ‘defects’

GHD used the ‘wrong’ Master Plan

GHD failed to have regard to the terms of the APM Contract

GHD incorrectly relied on requirements of environmental audit

Inadequate information about presence, location and nature of contamination

GHD’s letter post-dated the remediation works

GHD failed to provide an estimate of costs

GHD notified the contamination but failed to provide any of the requisite material

GHD failed to explain ‘why’ it had reached the requisite opinions

GHD acted on Glenvill’s advice about certain matters

Review of the letters accompanying the notices

Conclusion on ground 1

PART E:. GROUND 2 – FAILURE OF THE CONTRACTUAL MACHINERY

Glenvill’s application for leave to amend ground 2

The judge’s reasons for rejecting Glenvill’s failure of machinery argument

The parties’ submissions on ground 2

Glenvill’s submissions

Amcor’s submissions

Amcor’s approach to the change to retrospective determination

Relevant authorities concerning failure of contractual machinery

Sudbrook

Booker

Cameron v Cuddy

Additional authorities on which the parties relied

Summary of principles concerning failure of contractual machinery

Did the contractual machinery fail?

Key aspects of SC 11.5

Impact of the discovery of the extent of the Unidentified Contamination

Departure from the SC 11.5 process in 2015 — the pleadings and the material before the Court

Conclusions on the events of 2015

What was the effect of the 2017 amendments to the APM Contract?

Did SC 11.3(b)(ii) fail, or become redundant?

Conclusion on failure of the contractual machinery

Was the failed machinery essential to the APM Contract?

Had the APM contract been part-performed?

Should the Court provide alternative machinery and, if so, in what form?

Is there any discretionary reason why the Court should not provide alternative machinery?

PART F:.. GROUNDS 3 AND 4

Ground 3 — breach of SC 17.7 and the implied terms

Glenvill’s submissions

Analysis

Ground 4 – quantum meruit

PART G:. CONCLUSIONS ON GROUNDS OF APPEAL
PART H:. DISPOSITION

Disposition — issues of proof and quantum

Amcor’s submissions

Glenvill’s submissions

Disposition — Analysis

REASONS OF LYONS JA:

Nature of this dispute

Relevant terms of the APM Contract

Proper construction of SC 11.5

2015 informal accommodation

2017 amendments

Alleged failure

Judge’s reasoning

Proposed grounds 2(a) and (c)

Submissions

Relevant law concerning failure and alternative machinery

Analysis: Was there a failure in 2015 or 2017?

Analysis: Was there a failure of SC 11.3(b)?

Proposed ground 2(b)

Application for leave to amend

Submissions

Analysis

Consequences of conclusions

Submissions

Analysis

Summary of conclusions

WALKER JA
WHELAN JA:

PART A:RELEVANT BACKGROUND

Introduction

By a contract for the sale of land made 28 June 2013 (‘the APM Contract’), the applicant (referred to throughout the proceeding and in this judgment as ‘Glenvill’) purchased a large former industrial site in Alphington from the respondent (‘Amcor’).0F[1] Glenvill proposed to undertake a substantial residential development on the site.
[1]There were other parties to the contract. Amcor became the vendor as a consequence of a novation.
As a precursor to the sale, Amcor (or entities associated with it) had arranged for an environmental consultant, PJ Ramsay & Associates (‘Ramsay’), to undertake a detailed site investigation. That investigation had revealed the presence of contamination. It had revealed the presence of asbestos in some structures and building materials. But its tests did not reveal the presence of asbestos in the soil.
The parties recognised that there could well be contamination on the site which would need to be remediated and which had not been identified by Ramsay. Thus, the APM Contract contained provisions concerning ‘Unidentified Contamination’, being ‘Contamination’ which had not been identified by Ramsay.
The APM Contract contained provisions concerning the demolition of existing infrastructure and remediation of contamination at the site. In brief summary, those provisions were:
(a)Glenvill was required to demolish most of the industrial infrastructure on the site and to remediate contamination.
(b)Glenvill was required to use reasonable endeavours to undertake those tasks for an amount less than $14 million.
(c)Amcor agreed to pay the costs incurred by Glenvill in the demolition works (subject to a ‘cap’) and the costs properly and reasonably incurred in the remediation works.
(d)Amcor had to pay $14 million in any event, because, as an incentive to reduce costs, if the total costs were less than $14 million, Amcor was required to pay Glenvill the difference.
(e)If Unidentified Contamination was discovered, Special Condition (‘SC’) 11.5 of the APM Contract provided for a detailed procedure to be followed involving a notification by Glenvill accompanied by a letter from the Environmental Consultant; the capacity for objection by Amcor; and, in the event of objection, a determination by an expert as to the remediation to be undertaken.
(f)SC 11.3(b) provided for certification of the invoices for remediation works (including in relation to Unidentified Contamination) and demolition works by a quantity surveyor.
The detailed provisions referred to were amended by the parties both formally by deeds of variation and less formally by the exchange of correspondence.
As matters transpired, Unidentified Contamination was discovered by Glenvill. Most significantly, there was extensive asbestos contamination in the soil.
Glenvill gave Amcor a number of what purported to be notices and letters under SC 11.5(a) (‘the UC Notices’).1F[2] Most of those UC Notices were objected to by Amcor. There was no determination by an expert, initially because the parties agreed to defer any such determination, and later because an informal amendment agreed by the parties was to remove the expert determination and have all disputes resolved by the Court.
[2]Throughout these reasons, where we use the term ‘UC Notice’ we are referring to the notice and accompanying letter to be provided by Glenvill under SC 11.5(a).
In June 2017, proceedings were instituted by Glenvill to recover amounts it claimed were owing to it under the APM Contract.
The matter proceeded to trial in March 2020. The trial was interrupted due to the impact of the COVID-19 pandemic. The trial resumed in February 2021 and concluded in July of that year. Judgment was delivered on 1 November 2023.2F[3]
[3]Alphington Developments Pty Ltd v Amcor Pty Ltd [No 5] [2023] VSC 637 (‘Reasons’).
Glenvill’s claims in the proceeding were unsuccessful.
The first claim pleaded by Glenvill was a debt claim founded on progress claims numbered 23 to 54, as certified by a quantity surveyor, Montlaur Project Services Pty Ltd (‘Montlaur’) purportedly in accordance with the APM Contract.3F[4] The judge’s rejection of that claim is not the subject of this application and appeal, but it will be necessary to refer to certain findings she made in relation to that claim which are potentially relevant to claims which are in issue.
[4]Progress claims 1 to 22A, 23A, 24A, 25A and 26A were paid in full, and progress claims 23 to 35 were paid in part.
In the alternative, Glenvill pleaded that the contractual provisions concerning Unidentified Contamination had ‘failed’, requiring the Court to ‘step in’ and determine the amount payable by Amcor to Glenvill. In a further alternative, Glenvill pleaded that Amcor had breached duties of co-operation and of good faith and fair dealing. In a final alternative, Glenvill pleaded a claim on the basis of quantum meruit. It is contended on this application and appeal that the judge erred in rejecting those claims.
The relief sought by Glenvill was a money sum, being the unpaid balance of the progress claims, and interest on that sum, and a declaration that ‘Amcor is required to pay the costs of remediation of Unidentified Contamination described in the UC notices, alternatively the costs properly and reasonable incurred by Glenvill in performing the Demolition Works and the Remediation Works’. ‘Demolition Works’ and ‘Remediation Works’ are defined terms under the APM Contract. In the alternative, damages were claimed for breach of the duties of co-operation and of good faith and fair dealing, and, in the further alternative, a sum was claimed on a quantum meruit.
One of the judge’s principal reasons for rejecting Glenvill’s claims was that the UC Notices upon which it relied were ‘invalid’. We return below to the concept of ‘invalidity’ in the context of the UC Notices. But we note at the outset that, as the judge correctly observed, SC 11.5 does not impose any express validity requirement for UC Notices. Rather, ‘valid’ is a word the parties used in order to ventilate their arguments concerning the contested status of the UC Notices.4F[5]
[5]Reasons, [2572].

Proposed Grounds of Appeal

The proposed5F[6] grounds of appeal in the application for leave to appeal are:
[6]For convenience we will refer to the proposed grounds of appeal as ‘grounds of appeal’, unless the context otherwise requires.
1.The primary Judge misconstrued special condition 11.5 of the Contract of Sale dated 28 June 2013 by:
(a)imposing requirements for a ‘valid’ notice which had no basis in the contractual text and were not consistent with the contractual purpose for giving notice; and
(b)importing a requirement that a ‘valid’ UC Notice was a prerequisite to the Court’s ability to resolve the substantive matters in dispute between the parties, including pursuant to special condition 11.5(c).
2.The primary Judge erred by determining that there had not been a failure of the contractual mechanism, in circumstances where the primary Judge found that the contractual machinery was incapable of determining the respondent’s liability for remediating the unidentified contamination or the quantum of that liability.^[6F[7]^]
3.The primary Judge erred by dismissing the applicant’s claim that it was entitled to the costs of remediating unidentified contamination on the basis of the respondent’s breach of duties of co-operation (express and implied) and of good faith and fair dealing (implied).
4.The primary Judge erred by finding that the applicant could not recover a sum for the remediation of the unidentified contamination upon a quantum meruit.
[7]Ground 2 was the subject of an application to amend, which we address later.
We observe at the outset that Glenvill’s grounds of appeal are all directed to the question of Amcor’s liability for the costs of the remediation of Unidentified Contamination.
The matter proceeded before this Court on the basis that the Court would deal with the application for leave to appeal, and any appeal if leave were granted, together. Unless the context otherwise requires it, references hereafter will be made simply to ‘the appeal’.
For the reasons that follow, we would grant leave to appeal and allow the appeal on grounds 1 and 2. We consider that the matter should be remitted. In the circumstances, it is unnecessary to determine grounds 3 and 4 and leave to appeal on those grounds will be refused.

The centrally relevant contractual provisions

The provisions of the APM Contract which are of central relevance to the matters now in issue on the appeal are SC 11.2, SC 11.3, SC 11.5 and relevant definitions. These provisions were amended by a deed of variation executed on 18 February 2015 (‘Deed of Variation No 1’).
SC 11.2 required Glenvill to procure the Demolition Works and Remediation Works (the definitions of which are set out later). It relevantly provided as follows:
11.2 Purchaser to procure Demolition Works and Remediation Works
(a)Immediately following the release of the Deposit, Glenvill will engage the necessary consultants and contractors to procure the Demolition Works, the Remediation Works and the Consultant’s Works and use its reasonable endeavours to ensure that the Demolition Works and Remediation Works are completed in a time efficient manner that enables settlement to occur by the Settlement Date.
(b)Glenvill must use reasonable endeavours to minimise the cost of the Demolition Works, Remediation Works and Consultant’s Works, use reasonable endeavours to complete the Demolition Works, the Remediation Works and the Consultant’s Works for an amount less than $14,000,000.00 and will procure the Demolition Works, the Remediation Works and the Consultant's Works to be carried out cost effectively and to a reasonable commercial standard. If required to ensure that those works are conducted cost effectively, Glenvill agrees to make adjustments to its Master Plan, where reasonably possible in relation to any Unidentified Contamination, provided that Glenvill will not be required to make adjustments to its Master Plan if to do so would materially increase the costs or time necessary for Glenvill to develop the Land following completion of the Demolition Works, Remediation Works and the Consultant's Works. Glenvill recognises that if tendered, contracted and managed appropriately, it may be possible to complete the Remediation Works for less than the amount specified in the GHD Remediation Cost Estimate and the Consultant’s Works for less than the amount specified in the Consultant’s Costing.
…

SC 11.3 dealt with Amcor’s obligation to pay for certain of the Demolition Works, Remediation Works and Consultant’s Works, as follows:
11.3 Vendor’s obligation to pay
(a)The Vendor agrees to pay:
(i)the sum of $6,078,946, being the cost of the Demolition Works specified in the Delta Contract ($6,378,946) less preliminary costs of $300,000;
(ii)the costs properly and reasonably incurred by Glenvill in procuring the:
(A)Remediation Works; and
(B)Consultant’s Works (acknowledging that individual Consultant’s Costs may vary), subject to the Vendor’s maximum liability under special condition 11.3(d),
carried out in accordance with special condition 11.2, and the Vendor will make payment of such costs in accordance with the procedure set out in special conditions 11.3(b) and (c).
(b)Instalments of the amount payable by the Vendor for Demolition Works, Remediation Works and Consultant’s Works under special condition 11.3(a) will be paid to Glenvill within 30 days of presentation of:
(i)valid tax invoices for Demolition Works, Remediation Works or Consultant’s Works performed by the nominated contractor or consultant and payable by Glenvill;
(ii)certification of such invoices by a quantity surveyor (approved by the Vendor, acting reasonably) of the amount properly payable by the Vendor as applicable for the Demolition Works, Remediation Works and/or the Consultant’s Works and the approved quantity surveyor shall certify the amount which is payable by the Vendor for each of the Demolition Works, Remediation Works and/or the Consultant’s Works; and
(iii)confirmation in writing affirmed by an officer or senior manager of Glenvill certifying that all amounts then owing to any consultant or contractors engaged with respect to the relevant works have been paid;
(c)Subject to special conditions 11.3(a) and (b) and 11.5, if following completion of the Demolition Works, Remediation Works and the Consultant's Works, the amount (in aggregate) paid by the Vendor pursuant to this special condition 11.3 (including with respect to Remediation Works pursuant to special condition 11.5) (Total Costs) are less than $14,000,000, the Vendor shall pay to Glenvill the difference between those amounts (in aggregate) and $14,000,000 (Surplus) within 30 days of receipt from Glenvill of:
(i)a valid tax invoice for the Surplus;
(ii)certification by the main contractor of the Demolition Works that the Demolition Works have been completed; and
(iii)certification by the Environmental Consultant that the Remediation Works have been completed.
…
SC 11.5 dealt with the issue of Unidentified Contamination, as follows:
11.5 Unidentified Contamination
(a)If during the course of procuring the Demolition Works and Remediation Works, Unidentified Contamination is discovered, Glenvill may notify the Vendor of the Unidentified Contamination and such notice must:
(i)detail any adjustments that Glenvill proposes to its Master Plan to mitigate the affect of the Unidentified Contamination, provided that Glenvill is not required to make any adjustments which would materially increase the costs or time necessary for Glenvill to develop the Land following completion of the Demolition Works and Remediation Works; and
(ii)be accompanied by a letter prepared by the Environmental Consultant stating:
(A)the presence, location and nature of the Unidentified Contamination;
(B)the Environmental Consultant’s opinion as to whether the Unidentified Contamination must be remediated in order to allow the Land to be used for the uses specified in the Master Plan; and
(C)the Environmental Consultant’s proposed scope of work and estimate of costs for the necessary remediation of the Unidentified Contamination that are additional costs above those estimated in the GHD Remediation Cost Estimate.
(b)Unless the Vendor objects to the notice or supporting information provided under special condition 11.5(a) (which objection must be notified within 15 Business Days), Glenvill must procure the necessary remediation of the Unidentified Contamination (as specified in the Environmental Consultant's letter) and the Vendor must pay the cost of such remediation properly and reasonably incurred, in accordance with the procedure under special condition 11.3(b). For the avoidance of doubt, special condition 11.2(b) applies to these works, provided, however, that the Vendor shall not meet costs of unidentified Demolition Works.
(c)If the Vendor objects to the notice or supporting information provided under special condition 11.5(a) within 15 Business Days, then an expert will be appointed (in accordance with special condition 18) to resolve:
(i)any adjustments that Glenvill should make to its Master Plan to mitigate the affect of the Unidentified Contamination, provided that such adjustments do not materially increase the costs or time necessary for Glenvill to develop the Land following completion of the Demolition Works and Remediation Works;
(ii)the presence, location and nature of the Unidentified Contamination and whether the Unidentified Contamination must be remediated in order to allow the Land to be used for the uses specified in the Master Plan; and
(iii)the scope of work and estimate of costs for the necessary remediation of the Unidentified Contamination that are additional costs above those estimated in the GHD Remediation Cost Estimate.
SC 1 dealt with Definitions, the relevant definitions being:
Consultant’s Works means those works generally in accordance with but not limited to the works described in annexure E.
Contamination means the presence of a substance, gas, liquid, chemical, mineral or other physical or biological matter in, on or under land, surface water or groundwater that is at a concentration which is above levels naturally present in that land or water and presents a risk of harm to human health or the environment.
Demolition Works means works necessary to:
(a)   demolish and remove from the Property the improvements forming part of the Property; and
(b)   remove from the Property any remaining plant and equipment; and
(c)   remove from the Property any hazardous material within or comprising those improvements or remaining plant and equipment,
limited to those works specified in the Delta Contract which includes the lawful removal of any hazardous material within or comprising those improvements or remaining Plant and Equipment.
Environmental Consultant means GHD Pty Ltd.
Remediation Works means works necessary to remediate Contamination at the Land to the level and in the manner specified in the GHD Remediation Cost Estimate, including (in accordance with the procedure set out in special condition 11.5), remediation of any Unidentified Contamination which the Environmental Consultant reasonably considers must be remediated in order to allow the Land to be used for the uses specified in the Master Plan.
Unidentified Contamination means any Contamination at the Land that is not identified in the Ramsay Report.

Other relevant contractual provisions

Other provisions of the APM Contract to which reference needs to be made are SC 11.1, SC 13.8, SC 13.10, SC 17.4, SC 17.7 and SC 18.
They provided as follows, as amended by Deed of Variation No 1:
11.1     As is, where is
The Purchaser agrees and acknowledges that, subject to special conditions 7 and 11.3, it takes the Property (including the Plant and Equipment) on an as is, where is basis, including without limitation any and all improvements in whatever condition and any and all Contamination.
13.8     Purchaser not make a claim/exercise Purchaser Rights
The Purchaser must not:
(a)require the Vendor to obtain or (subject to special condition 11.3) contribute to the cost of:
(i)compliance with any Environmental Notice;
(ii)any environmental assessment or audit report for the Property or any part of the Property;
(iii)any statement or certificate under Part IXD of the Environment Protection Act 1970 (Vic) for the Property or any part of the Property; or
(iv)any remediation or related activity required in conjunction with the re-zoning or redevelopment of the Property;
(b)make any claim, objection or requisition against the Vendor as a result of or in respect of any matters disclosed in this special condition 13 including any matter disclosed in the Environmental Reports, or any alleged inaccuracy or deficiency in the information disclosed in the Environmental Reports or any non-disclosure of any alleged Contamination relating to the Property; and
(c)exercise any Purchaser Rights in relation to any of the matters referred to in this special condition 13.
13.10 Vendor's obligation to fund Remediation Works
Nothing in this special condition 13 diminishes the Vendor's obligations under special condition 11.3.
17.4     Amendment
This contract may only be varied or replaced by a document signed by the parties.
17.7     Further steps
Each party must promptly do whatever any other party reasonably requires of it to give effect to this Contract and to perform its obligations under it.
18      Dispute resolution
(a)If any special condition requires the resolution of any matter upon which the parties are in dispute under this special condition 18, the matter must be referred for determination to a jointly appointed expert in the profession or field of expertise to which the matter relates, to be mutually agreed upon by the parties or failing agreement within 5 Business Days of a party raising the matter, to an expert nominated by the President of the Victorian Division of the Australian Property institute at the request of either party.
(b)The expert appointed or nominated must act as an expert and not as an arbitrator, must consider any written submissions from the parties and his decision will be final and binding on save in the case of manifest error. The costs of the expert must be borne equally by the parties. Until the expert hands down its decision the parties must continue to comply with this Contract, save in respect of a dispute arising under special condition 9.2(d), in which case the Purchaser must not lodge its proposal with any Authority and neither party is permitted to correspond with any Authorities in this respect until the dispute is resolved.

Correspondence in 2015

During 2015, there was correspondence between the parties concerning changes to the procedure provided for by SC 11.5. That correspondence reveals that in 2015 the parties consciously departed from the provisions in SC 11.5 of the APM Contract. The judge described the effect of the correspondence as follows:
… the tenor of the correspondence exchanged between the parties was to the effect that, notwithstanding the service of the ‘UC notices’ during 2015, neither party was seeking to strictly enforce their contractual rights, no expert determination would be enlivened, and both parties’ rights would be reserved. And in the meantime, Glenvill would proceed to effect the Remediation Works the subject of those UC notices, and incur the cost thereof in the first instance, but have the right to seek to recover the costs properly and reasonably incurred.7F[8]
[8]Reasons, [723].
The words which the judge used to describe what Glenvill would have the right to recover (‘the costs properly and reasonably incurred’) are the words of SC 11.3(a)(ii).
Later in the judgment she said:
Importantly, SC 11.5(b) does not require the Vendor to specify the grounds of its objection to the notice or supporting information. Amcor submitted that SC 11.5(b) imposed no requirement on the Vendor to specify any reason for its objection, and Glenvill accepts that this is the case. But in the event that the Vendor did object, then the process of dispute resolution under SC 11.5(c) was enlivened, and in the ordinary course the proposed work would not proceed until the dispute was resolved. In that regard, it will be recalled that when the APM Contract was entered into, the parties provided for any such dispute to be resolved by an expert in accordance with SC 18, and in advance of any remediation work being undertaken. But by June 2015 or thereabouts, when the widespread extent of the Unidentified Contamination discovered at the Alphington site became apparent, the procedure was modified informally by the parties - such that invocation of the dispute resolution process was effectively put on hold, with Glenvill continuing to procure the remediation works and with each party reserving their rights ... 8F[9]
[9]Reasons, [2587] (citations omitted).
As the judge observed, Glenvill did not plead that the correspondence in 2015 had varied the APM Contract.9F[10] Before us, counsel for Glenvill maintained this position, while characterising what occurred in 2015 as a ‘standstill agreement’.
[10]Reasons, [723].
Glenvill relies upon what occurred in 2015 as the initial basis for its contention that the ‘contractual machinery’ had ‘failed’, which is the subject of ground 2, and also relies upon the events of 2015 in relation to one aspect of ground 1.
Amcor, in its Defence to the Fourth Further Amended Statement of Claim10F[11] (‘Defence’), likewise did not contend that the APM Contract was amended in 2015. It pleaded that an amendment had occurred in 2017, whereby the process for the resolution of disputes concerning Unidentified Contamination was altered so as to operate retrospectively. We deal with the amendments made in 2017 below.
[11]Glenvill’s Fourth Further Amended Statement of Claim is referred to in these reasons as ‘4FASOC’.
In the course of submissions directed towards resisting Glenvill’s application for leave to amend ground 2 (dealt with below), counsel for Amcor accepted, with some diffidence, that the move to retrospective dispute resolution was ‘probably agreed’ in November 2015 (as well as in mid-2017), but contended this had not been in issue at trial and, had it been, Amcor would have called different evidence and adopted a different approach to cross-examination.11F[12]
[12]Transcript of Proceedings (19 November 2024) 21.7–21.31, 22.1–22.12.
It will be necessary to return to the events of 2015 in more detail in the context of grounds 1 and 2.

Correspondence in mid-2017

After Glenvill instituted proceedings on 16 June 2017, the solicitors for Glenvill and the solicitors for Amcor exchanged correspondence in which they agreed to amend the process that was to apply for the resolution of disputes concerning Unidentified Contamination. The judge set out the relevant correspondence.12F[13]
[13]Reasons, [725]–[727].
The correspondence in June and July 2017 records an agreement that SC 18 be ‘struck’ from the APM Contract, that the references to SC 18 be ‘struck’ from SC 11.5(c) (and some other specified provisions), and that ‘all disputes’ whether presently known or not ‘should be determined within the jurisdiction of the Court’. The judge observed that it ‘seems clear’ that the parties agreed to strike out SC 18, and the reference to SC 18 in SC 11.5(c), but it was unclear precisely what effect that had on the balance of the APM Contract.13F[14]
[14]Reasons, [728]
The judge set out Amcor’s pleaded analysis of the contractual provisions consequent upon the exchange of solicitors’ letters in 2017.14F[15] In its Defence Amcor pleaded, in para 70AA, as follows:
[15]Reasons, [4192].
70AA. As to paragraph 70AA, it:
(a)says that by the exchange of letters referred to in paragraph 11C, by 4 July 2017, Glenvill and Amcor agreed to vary SC 11.5(c) of the APM Contract such that a precondition to Amcor incurring any Contractual liability under SC 11.3(a) to pay Glenvill any part of the amounts that it claimed in respect of Remediation Works for Unidentified Contamination in a notice issued pursuant to SC 11.5(a) (UC Notice) (regardless of whether the UC Notice had been issued prior to or after 4 July 2017) was that the Court first make a finding:
(i)that there are no adjustments that Glenvill needed to make to its Master Plan to mitigate the effect of the Unidentified Contamination that would not have materially increased the costs or time necessary for Glenvill to develop the Land following completion of the Demolition Works and Remediation Works;
(ii)that Unidentified Contamination was located on the Site in the manner specified in the UC Notice;
(iii)that the Unidentified Contamination must be remediated in order to allow the Land to be used for the uses specified in the Master Plan that was set out in the UC Notice;
(iv)that Glenvill had actually carried out a particular scope of work in relation to the alleged Unidentified Contamination;
(v)that the scope of works that Glenvill had actually carried out on the Site was:
(A)work to remediate ‘a risk of harm to human health or the environment’, and therefore was work done to remediate ‘Contamination’ for the purposes of the definition of that term in SC 1;
(B)work that the Environmental Consultant reasonably considered must be remediated in order to allow the Land to be used for the uses specified in the Master Plan, and therefore was ‘Remediation Work’ for the purposes of the definition of that term in SC 1; and
(C)‘necessary remediation of the Unidentified Contamination’ for the purposes of SC 11.5(c)(iii);
(vi)as to the quantum of the costs referable to the scope of works that Glenvill had actually carried out and which satisfied the criteria in (v) above;…
Paragraph 70AA of Amcor’s Defence pleaded an alteration in the Unidentified Contamination dispute determination procedure from a prospective operation to a retrospective operation. This can be seen in the references in sub-paras (iv), (v) and (vi) to the works which Glenvill ‘had actually carried out’.
Before us, Amcor contended that the alteration from a prospective to a retrospective operation is found in implications necessarily drawn from the agreement reached in 2017.
The judge set out several passages from Amcor’s opening submissions where it had submitted that the effect of the arrangements in 2017 was that the Court was to determine the questions in SC 11.5(c) on a retrospective basis and the amount payable by Amcor to Glenvill ‘without the need for the QS (ie Montlaur) to thereafter certify Glenvill’s invoices’. Amcor submitted that Montlaur’s role under SC 11.3(b) had been ‘rendered redundant’.15F[16]
[16]Reasons, [4194].
After setting out the passages, the judge said:
As will be apparent, at least at that point neither party contended that, following the informal amendment of the APM Contract in mid‑2017, there was any need for any (or any further) certification by Montlaur — as the approved quantity surveyor under SC 11.3(b) — of the cost of the works that the Court found were necessary for Glenvill to have carried out to remediate Unidentified Contamination at the Alphington site.16F[17]
[17]Reasons, [4195].
The judge’s reference to ‘at least at that point’ reflected the fact that later during the trial Amcor submitted that certification by the quantity surveyor was an essential second step which had to be undertaken before Amcor could be liable; that certification to be made ‘in light of the Court’s determination’ under SC 11.5(c).17F[18]
[18]Reasons, [1886].
The judge eventually held that certification by an approved quantity surveyor ‘remained … an essential and indispensable part of the contractual bargain’ and a prerequisite to Amcor being liable, under SC 11.3(a), for the costs of remediating the Unidentified Contamination.18F[19] The judge had earlier held that Glenvill had never brought a claim seeking relief which was consistent with the Court ordering the issue of ‘fresh certifications consequent upon the Court’s resolution of the SC 11.5 issues’.19F[20]
[19]Reasons, [4272].
[20]Reasons, [1893]–[1895].

Before us, Glenvill relied upon what occurred in 2017 as an alternative basis for its contention that the ‘contractual machinery’ had failed.
In contrast, Amcor supported the judge’s construction that certification under SC 11.3(b) was an essential and indispensable part of the APM contract. But it also sought to rely upon a notice of contention which asserted that the judge was in error in concluding that the effect of the 2017 correspondence did not entail the Court determining any amount payable by Amcor to Glenvill. These positions are inconsistent with each other. The notice of contention was relied upon in the alternative.

The various ‘Master Plans’

As has been seen, the relevant contractual provisions referred to a ‘Master Plan’. The ‘Master Plan’ as defined by the APM Contract was a document at Annexure B to that contract. This document was referred to as the ‘Annexure B Master Plan’.
The contractual Master Plan was potentially important because it specified the ‘uses’ to which various portions of the site were to be devoted. The uses were potentially important because the extent of remediation required could vary depending upon the proposed use of the particular area. The Master Plan was also potentially significant because of the provisions in the APM Contract concerning adjustments to the Master Plan which might ameliorate the required remediation of Unidentified Contamination.
For most of the proceeding, Glenvill contended that the contractual Master Plan had been amended at various times.
Eventually, in the course of the trial, Glenvill conceded that the Master Plan for the purposes of the APM Contract was the Annexure B Master Plan, notwithstanding the alterations which Glenvill had made to its own site master plans from time to time. According to the judge, this concession was not made clear until oral closing addresses.20F[21]
[21]Reasons, [3393], [4415].
The fact that the only master plan having contractual effect was the Annexure B Master Plan was significant in the judge’s analysis of the UC Notices. This was because GHD, as the Environmental Consultant under the APM Contract, in the letters required by SC 11.5(a)(ii) to ‘accompany’ the notices, addressed the issue of whether the Unidentified Contamination had to be remediated, not against the Annexure B Master Plan, but rather against Glenvill’s master plan from time to time or against an unknown master plan. This circumstance was a significant reason why the judge found that all of the UC Notices were ‘invalid’.
The judge observed that, where Glenvill did not propose any adjustment to the Master Plan in a UC Notice, the relevant contractual provisions enabled Amcor to object to the UC Notice, at which point it became a matter for the SC 11.5(c)(i) process to resolve any adjustment that Glenvill should make to the Master Plan. The judge said that the evidence did not reveal any instance where Amcor, following an objection, sought to raise ‘in a timely way’ the ‘desirability’ of adjusting the Master Plan.21F[22] The only significant adjustment contended for by Amcor in the trial was the elimination of basement carparks, a contention which the judge did not accept.22F[23]
[22]Reasons, [2487]–[2488].
[23]Reasons, [2419]–[2422].

Demolition Works

The provisions in the APM Contract concerning Demolition Works are also relevant to the judge’s conclusions as to the ‘validity’ of the UC Notices.
The definition of ‘Demolition Works’ in the APM Contract, as set out earlier, relevantly included removal from the site of ‘any hazardous material within or comprising those improvements or remaining plant and equipment, … limited to those works specified in the Delta Contract which includes the lawful removal of any hazardous material within or comprising those improvements or remaining Plant and Equipment’.
The definition of ‘Delta Contract’ identified that contract by reference to an annexed copy. There were provisions of the annexed Delta Contract which concerned asbestos.
Clause 2.2.1 of the Delta Contract included in the description of service termination, internal hazardous material removal and non-structural demolition works the following:
Carry out all internal hazardous materials removal from all buildings on site, excluding any asbestos contained in facades and roofs.
Clause 2.2.4 provided for the removal of all hazardous materials located in all buildings, roofs, facades and structures; and the ‘asbestos scope’ in the description of works included ‘all asbestos and hazardous materials above the underside of the lowest local slab whether they have been identified or not …’.
The definition of Remediation Works in the APM Contract relevantly provided that they are works ‘necessary to remediate Contamination at the Land’, including Unidentified Contamination in accordance with the procedure set out in SC 11.5.
SC 11.3(a)(i) provided that Amcor agreed to pay the cost of Demolition Works in the sum of $6,078,946. The parties referred to this sum as the ‘cap’. SC 11.3(a)(ii)(A) provided that Amcor pay the costs ‘properly and reasonably’ incurred by Glenvill in procuring the Remediation Works, in accordance with the specified provisions of the APM Contract, but without any ‘cap’.
SC 11.3(b)(ii) required the quantity surveyor, when certifying amounts payable, to certify the amount payable for ‘each’ of the Demolition Works and the Remediation Works.
The definition of Remediation Works is wide enough to encompass remediation undertaken pursuant to the Delta Contract. That work would also fall within the definition of Demolition Works.
Demolition Works and Remediation Works, as defined, are not mutually exclusive. But they become so in effect once the ‘cap’ on Demolition Works is reached. This is because under SC 11.3(a)(i) Amcor’s liability for Demolition Works is limited to $6,078,946, and because under SC 11.3 (b)(ii) the quantity surveyor must certify the amount payable for ‘each’ of the Demolition Works and the Remediation Works.
When the issue was raised in the hearing before us, neither party directed the Court’s attention to any relevant provision of the APM Contract which requires a differentiation between Demolition Works and Remediation Works other than the provisions concerning the ‘cap’.23F[24] This is potentially significant as it appears that there may have been an assumption in the trial that the defined expressions are mutually exclusive.
[24]Reference was made to SC 11.4 which concerns costs of varied Demolition Works and Remediation Works. This provision does not bear upon the issue of whether the concepts are mutually exclusive, absent the ‘cap’.

The s 65M process

On 1 December 2017, Hargrave J, who was managing the proceeding at that time, appointed an independent contamination expert (Mr Phil Sinclair from Coffey Services Australia Pty Ltd), under s 65M of the Civil Procedure Act 2010, for the purpose of assisting the Court.
A series of questions was posed to the independent expert in relation to the UC Notices to which Amcor had objected. The expert was asked to proffer an opinion on the questions for each of eight UC Notices, referred to as the ‘Disputed UC Notices’.
The questions posed, as set out in schedule 1 to Hargrave J’s order, were:
(1)Does the Disputed UC Notice refer to ‘Contamination’ within the meaning of SC 1.1?
(2)If Yes to Question 1, is it ‘Unidentified Contamination’ within the meaning of SC 1.1?
(3)If Yes to Question 2, determine the presence, location and nature of the Unidentified Contamination.
(4)In light of your response to Question 3, must the Unidentified Contamination be remediated in order to allow the Land to be used for the uses specified in the Master Plan? ...
(5)Should Glenvill (acting reasonably) have made any, and if so what, adjustments to its Master Plan, to mitigate the effect of the Unidentified Contamination, provided that such adjustments would not have materially increased the costs or time necessary for Glenvill to develop the land following completion of the Demolition and Remediation Works? ...
(6)What is the scope of works and estimate of costs for the necessary remediation of the Unidentified Contamination, that are additional costs above those estimated in the GHD remediation cost estimate?
Questions 4 and 5 were to be answered by reference to each of four master plans, being the Annexure B Master Plan and three later varied master plans.
As is apparent, the questions posed essentially reproduced the matters to be determined under SC 11.5(c) as written, and, in particular, the determination of ‘scope’ of work and ‘estimate’ of cost, notwithstanding that the work had been done and the costs incurred.
Each of Glenvill and Amcor engaged a contamination expert to make submissions to the Court appointed expert on the questions posed. They each engaged an expert from the environmental consulting firm which had respectively acted on their behalf in the course of the work undertaken at the site, and orders were made permitting those experts to act notwithstanding their previous involvement.
On behalf of Glenvill, the expert engaged was Dr Beck, from GHD. On behalf of Amcor, the expert engaged was Mr Kluckow, from Golder Associates Pty Ltd (‘Golder’). Amcor had appointed Golder as its environmental advisor in around mid‑2015, with Mr Kluckow acting as leader of the Golder team assisting Amcor from around late June 2015. The Golder team attended site meetings from August 2015 to late 2016, and between October 2015 and late 2016 Mr Kluckow and relevant GHD consultants had participated in a series of technical workshops ‘in an attempt to reach agreement … on a number of technical inputs being used by GHD to prepare the cost estimates and for the look-forward remediation on the site’.24F[25]
[25]Reasons, [851]–[853], [1716].

Asbestos containing material

Mr Kluckow, Amcor’s expert, set out a useful summary of the position in relation to asbestos containing material (‘ACM’) in his report of 30 August 2018. As the relevant issues are somewhat technical, it is preferable to set out that summary, rather than attempting to reword it. The relevant passage from his report is as follows:
5.2.5 Asbestos
5.2.5.1 Terminology for Asbestos Contamination in Soil
For the purpose of assessing the significance of asbestos in soil contamination, three terms are used which are based on guidance developed by the Western Australian Department of Health (WA DoH, 2009) as described in the NEPM (2013) as follows:
Bonded Asbestos Containing Material (Bonded ACM)
Bonded ACM comprises asbestos-containing-material which is in sound condition, although possibly broken or fragmented, and where the asbestos is bound in a matrix such as cement or resin (e.g. asbestos fencing and vinyl tiles). This term is restricted to material that cannot pass a 7 mm x 7 mm sieve. This sieve size is selected because it approximates the thickness of common asbestos cement sheeting and for fragments to be smaller than this would imply a high degree of damage and hence potential for fibre release.
Fibrous Asbestos (FA)
FA comprises friable asbestos material and includes severely weathered cement sheet, insulation products and woven asbestos material. This type of friable asbestos is defined here as asbestos material that is in a degraded condition such that it can be broken or crumbled by hand pressure. This material is typically unbonded or was previously bonded and is now significantly degraded (crumbling).
Asbestos fines (AF)
AF includes free fibres, small fibre bundles and also small fragments of bonded ACM that pass through a 7 mm x 7 mm sieve. If bonded ACM fragments are able to pass through a 7 mm x 7 mm sieve, it is implied that a substantial degree of damage has occurred, which increases the potential for fibre release.
5.2.5.2 Asbestos Soil Contamination and Health Risk
The NEPM provides information in relation to asbestos soil contamination and health risk.
Asbestos only poses a risk to human health when asbestos fibres are made airborne and inhaled. Therefore, where asbestos is bound in a matrix such as cement or resin health risks are likely to be low unless the material is damaged and fibres are made airborne. Health risk from FA and AF are higher than for bonded
ACM as they have a greater potential to generate free fibres.
NEPM notes that “It is an inappropriate response to declare a site a human health risk on the basis of the presence of bonded ACM alone. However, if the bonded material is damaged or crumbling (that is, it has become friable), it may represent a significant human health risk if disturbed and fibres are made airborne.”
Consequently, NEPM (2013, Schedule B2, Section 9.3.1) states a preference for remediation options which minimise soil disturbance and therefore public risk, and management of asbestos in situ, rather than complete removal, is encouraged.
NEPM presents health screening levels for asbestos in soil, adopted from the WA DoH (2009) guidelines. These are provided in Table 6.
Table 6: Health screening levels for asbestos contamination in soil Health Screening Level (w/w) (NEPM 2013)
As outlined in the NEPM (2013) the asbestos concentrations calculations for comparison with these screening levels are based upon the amount of asbestos in a measured/estimated amount of soil expressed as a % weight for weight. The NEPM (2013) also notes that there is no validated laboratory method readily available in Australia for reliably estimating the concentration of free fibres in soil. Reference is made to a presence/absence determination in accordance with the Australian Standard AS4964- 2004: Method for the qualitative identification of asbestos in bulk samples. Under this standard, the nominal detection limit is around 0.01%.
On this basis, I have adopted that any detection of asbestos fibres or observations of asbestos in exposed soils, may present a concentration of asbestos that is a risk to human health if in a location where it is disturbed.
The reference to ‘NEPM (2013)’ is a reference to the National Environment Protection (Assessment of Site Contamination) Measure as amended in 2013 by the National Environment Protection Council established under the National Environment Protection Council Act 1994 (Cth).
At this stage, it suffices to note that there is a distinction to be drawn between bonded ACM on the one hand, and friable asbestos (being both fibrous asbestos – FA, and asbestos fines – AF) on the other. There are acceptable levels of bonded ACM in soil depending on the land use (.01 per cent to .05 per cent as in the table above). There is, in practice, no acceptable level of friable asbestos for any land use because the acceptable level (.001 per cent) is below the nominal detection limit (.01 per cent). If the fibres are disturbed and become airborne, they represent a significant human health risk.
PART B:THE JUDGE’S REASONS

The relevant issues at trial

The trial was conducted by reference to a list of issues prepared by the parties. It was not an agreed list. It was a list containing issues each of the parties contended to be relevant. Each issue was headed by a statement identifying the party raising it. The final list of 28 issues was set out in a document entitled ‘Further Revised Joint List of Issues’ dated 23 March 2021 (‘the Issues List’).25F[26]
[26]Reasons, [540]–[541].
Issues 1 to 4 concerned the primary debt claim advanced on behalf of Glenvill founded upon Montlaur’s certification of progress claims 23 to 54. The judge rejected that claim and there is no appeal from that rejection.
Issues 5 to 9 concerned contentions by Amcor that Glenvill had failed to adopt an appropriate approach to the investigation and assessment of the asbestos contamination and had thereby breached obligations under the APM Contract, and related contentions. The judge did not accept these contentions. No notice of contention has been filed in relation to that conclusion.
The question of the ‘validity’ of the UC Notices was issue 10. The judge found the notices to be ‘invalid’. This finding is the subject of ground 1.
Issue 11 concerned whether Amcor had objected to the UC Notices and whether any such objections were ‘valid’.
Glenvill raised issue 12, which concerned the UC Notices to which Amcor objected. It asked the judge in effect to determine the matters in SC 11.5(c), including by reference to a ‘scope of works’ and ‘estimate’ of costs.
Issues 13 to 19, raised by Amcor, dealt with similar matters. Issue 13 concerned how the matters set out in SC 11.5(c) were to be determined by the Court in respect of the ‘relevant’ UC Notices. Issue 14 contained a question of whether the Court was required by SC 11.5 to make particular findings (notably, for example, regarding the ‘actual scope of works’) as a ‘pre-condition’ to Amcor incurring contractual liability under SC 11.3(a).
Issue 15 concerned whether the report of the independent expert, Mr Sinclair, provided the Court with a proper basis to make findings of the sort in issue 14.26F[27] If the answer to that issue was no, issue 16 concerned whether there was other probative evidence before the Court that provided a basis to make findings of the sort in issue 14.
[27]The Issues List referred here to issue 13. The judge observed that the reference to issue 13 should be read, in context, as issue 14: Reasons, [3377] n 4267.
Issue 17 arose if the answer to either issue 15 or 16 was yes. It also sought, in substance, the determination of the SC 11.5(c) issues, but by reference to actual work done and actual costs.
Issue 18 only arose if the judge made particular findings under issue 17. It sought a determination of the quantum of the costs properly and reasonably incurred for the purposes of SC 11.3(a)(ii).
Issue 19 was an issue relating to changes to the Master Plan.
The judge said that, because she had found that none of the UC Notices were valid, issues 12 to 19 did not arise for determination.27F[28]
[28]Reasons, [3361]–[3376].
Issues 20 and 22 dealt with the failure of the contractual machinery. Issue 20 concerned whether the contractual machinery ‘contemplated’ by the APM Contract had failed and whether, in the circumstances, Glenvill was entitled pursuant to the contract to payment of the costs properly and reasonably incurred by it in procuring the Remediation Works and Demolition Works. Issue 22 then concerned the quantum of such costs.
The substance of agreed issue 21 concerned whether Glenvill was entitled to payment for the costs properly and reasonably incurred in procuring the Demolition Works and Remediation Works in light of SC 17.7 and the implied terms. If issue 21 was answered yes, issue 22 dealt with determining quantum for that issue.
Issue 23 concerned Glenvill’s quantum meruit claim.
Issues 24 to 28 are not relevant to the appeal.

Validity of the UC Notices – a threshold issue

The Reasons commence with a detailed summary of the judge’s conclusions.28F[29] At the outset of that summary the judge stated that Glenvill’s ability to claim the costs associated with remediation of Unidentified Contamination is ‘dependent upon the UC notices it gave to Amcor being found to have been “valid” in the sense of complying with and satisfying the requirements of SC 11.5(a) of the APM Contract.’29F[30] That issue (and the issue of whether Amcor had objected to each UC Notice) was the first issue the judge addressed in her summary.30F[31] It is the subject of the first ground of appeal. That ground was the first substantive issue dealt with in the hearing before us, and it was addressed by the parties discretely prior to the other grounds of appeal.

The relevant UC Notices

[29]Reasons, [40]–[534]. Unless expressly stated otherwise, the issue concerning the ‘validity’ of the UC Notices will be addressed by reference to the judge’s substantive reasons as opposed to her summary. The judge said that her summary observations with respect to the UC Notices should not be regarded as a substitute for her substantive reasons: Reasons, [81].

[30]Reasons, [41].

[31]Reasons, [42]–[346].

Before the judge, Glenvill was not consistent in its identification of the documents which it contended were UC Notices under SC 11.5(a).31F[32]
[32]Reasons, [32].
The judge held certain documents, which were at one time at least said to be UC Notices, to be ‘invalid’ because Glenvill had conceded that they did not constitute notices under SC 11.5(a), because they were not accompanied by the required letter from GHD as the Environmental Consultant, or because they were ‘not pressed’ by Glenvill. These UC Notices are the following:
(a)UC PCB Notice;32F[33]
(b)UC Pulp Substitution Notice;33F[34]
(c)UC F6 Building Notice;34F[35]
(d)UC Notice December 2015;35F[36] and
(e)UC Notice #5.36F[37]
[33]Reasons, [2787].
[34]Reasons, [2845], [2848].
[35]Reasons, [2862], [2864].
[36]Reasons, [2961].
[37]Reasons, [2971].
On this appeal, Glenvill does not contend that these were valid UC Notices. Glenvill also advised this Court during the hearing that UC Notice #6, which the judge held to be invalid,37F[38] was not pressed.
[38]Reasons, [3163].
The UC Notices which remain relevant, which Glenvill does contend are ‘valid’ on this appeal, and which were described in detail in the Reasons, are:
(a)UC Notice #1,38F[39] to which Amcor did not object.
[39]Reasons, [2596]–[2635].
(b)UC Notice #1 Revised,39F[40] to which Amcor did not object.
(c)UC Notice #2,40F[41] to which Amcor did object.
(d)UC Notice #3,41F[42] to which Amcor did object.
(e)UC Notice #4,42F[43] and UC Notice #4 Addendum,43F[44] to which Amcor objected but only after receipt of the addendum.
(f)UC Notice #7,44F[45] to which Amcor did object.
(g)UC Notice #8,45F[46] to which Amcor did object.
(‘the relevant UC Notices’)

The judge’s conclusions on validity — overview

[40]Reasons, [2636]–[2712].

[41]Reasons, [2714]–[2775].

[42]Reasons, [2792]– 2842].

[43]Reasons, [2866]–[2932].

[44]Reasons, [2933]–[2957].

[45]Reasons, [3166]–[3326].

[46]Reasons, [3327]–[3359].

Amcor contended at the trial that all of the UC Notices were invalid because Glenvill had failed to propose, or actively consider, adjustments to the Master Plan to mitigate the effect of the Unidentified Contamination. Amcor contended Glenvill was required to do so under SC 11.5(a)(i). The judge rejected that contention.46F[47] There has been no notice of contention filed in relation to that conclusion.
[47]Reasons, [2475], [2598], [2630], [2699].
The judge concluded that all of the relevant UC Notices were invalid for other reasons.47F[48]
[48]The relevant passages in the Reasons are the following: UC Notice #1: [2624]–[2632]; UC Notice #1 Revised: [2699]–[2710]; UC Notice #2: [2767]–[2768]; UC Notice #3: [2838]–[2840]; UC Notice #4: [2927]–[2930]; UC Notice #4 Addendum: [2944]–[2946]; UC Notice #7: [3292]–[3321]; UC Notice #8: [3354]–[3358].
SC 11.5(a)(ii) required that each UC Notice be ‘accompanied by a letter prepared by the Environmental Consultant’ (being GHD during the relevant period) stating specified matters. Each of the relevant UC Notices was held by the judge to be ‘invalid’ because of deficiencies in the required accompanying letter.
One deficiency found by the judge to be pervasive in the accompanying letters was that GHD had determined that remediation was required by reference to the wrong master plan, or to an unknown master plan.
The judge also found that all the relevant UC Notices were invalid because GHD’s accompanying letter had failed to address the contractual issues which the judge considered the Environmental Consultant was required to address. In her summary, the judge stated that the ‘root cause of the UC Notices not complying with SC 11.5(a)’ was the failure to provide GHD with a ‘full suite’ of the contractual documentation and ‘proper instruction’ about its ‘contractual role’.48F[49] She stated that it was necessary for GHD to have a ‘sound understanding’ of the relevant contractual provisions in order to perform its role.49F[50]
[49]Reasons, [54].
[50]Reasons, [67].
There were a variety of other deficiencies found by the judge in the GHD letters accompanying the notices.

Judge’s analysis of UC Notice #1

UC Notice #1 was constituted by an email dated 11 June 2014.50F[51] The email did not expressly refer to SC 11.5, but it did refer to unidentified lead contamination and unidentified asbestos contamination. The email did not refer to any Master Plan adjustments, but the judge found, as she consistently did in relation to this issue, that in circumstances where no adjustments were proposed, Glenvill was not required to give notice of that fact under SC 11.5(a).51F[52]
[51]Reasons, [2596]–[2597].
[52]Reasons, [2598].
UC Notice #1 had an accompanying letter from GHD dated 23 May 2014. The letter addressed what were said to be two areas where there was Unidentified Contamination. The first was lead impacts in zone 7. The second was friable asbestos fibres in soil in the area of the main substation and switchyard in the south-west corner of the site.
The Environment Consultant’s accompanying letter was required to state: the presence, location and nature of the Unidentified Contamination; the Environmental Consultant’s opinion as to whether remediation of the Unidentified Contamination was required in order to allow the Land to be used for the uses specified in the Master Plan; and the Environment Consultant’s proposed scope of work and estimate of costs for the necessary remediation.
In relation to the lead contamination, the judge observed that GHD’s letter addressed ‘some’ of these requirements; being, the presence, location and nature of the Unidentified Contamination ‘albeit in general terms’, and the opinion that it must be remediated in order to allow the Land to be used for the uses specified in the Master Plan. The judge noted, however, that in expressing that opinion, GHD had not referred to the relevant provisions of the APM Contract and that it was ‘unclear’ to what master plan GHD was referring.52F[53]
[53]Reasons, [2603].
The judge reviewed the accompanying letter’s treatment of the lead issue in some detail, observing, amongst other things, that the area of what was said to be Unidentified Contamination overlapped with an area which had been identified as containing at least some lead impacts identified by Ramsay. The judge observed that it was ‘unclear why GHD now regarded the random lead impacts’ in the relevant area as being ‘unidentified’.53F[54]
[54]Reasons, [2609].
In relation to the lead impacts, the accompanying letter contained proposed remediation works and an estimate of costs, which the judge set out without comment.54F[55]
[55]Reasons, [2613]–[2615].
In relation to the friable asbestos, the judge again observed that the accompanying letter appeared to address ‘some of the requirements of SC 11.5(a)(ii)’, being the presence, location and nature of the Unidentified Contamination, and the opinion that it must be remediated in order to allow the Land to be used for the uses specified in the Master Plan.55F[56]
[56]Reasons, [2617].
The judge again observed that GHD did not refer to the relevant contractual provisions and definitions, and said that it was ‘unclear what Master Plan GHD is referencing’.56F[57] The judge went on to observe that GHD had not ‘articulated why’ it considered the asbestos to constitute ‘Contamination’ as defined, and did not ‘articulate the reasons’ why it considered that asbestos-impacted soil had to be remediated to the depths stated in the letter.57F[58]
[57]Reasons, [2618].
[58]Reasons, [2619].
The judge concluded that UC Notice #1 was not a ‘valid’ notice because of the deficiencies which she held to be present in GHD’s accompanying letter. In particular, the judge reached that conclusion because GHD had not explained why the asbestos was to be regarded as Contamination as defined, and why the remediation work proposed was necessary to enable the Land to be used for the use specified in the Annexure B Master Plan. As a consequence she could not be satisfied that the scope of works and estimate of costs conformed with the contractual requirements. The judge observed that GHD’s letter ‘does not engage in any real or meaningful sense with the contractual provisions pertaining’ to its role as the Environmental Consultant under the APM Contract.58F[59] The judge concluded:
In my view, GHD’s failure to engage with the relevant contractual provisions and definitions, and its failure to explain why the ‘Contamination’ is, in each case, Unidentified Contamination that is necessary to be remediated to allow the Land to be used for the uses specified in the Master Plan, entails the consequence that the opinion GHD has provided in the letter report is not one that addresses and satisfies the criteria specified in SC 11.5(a)(ii) (A), (B) and (C) of the APM Contract and thus could not fairly be regarded as ‘legally sound’ or ‘well-founded’.59F[60]
[59]Reasons, [2624]–[2625].
[60]Reasons, [2631].
There was no objection to UC Notice #1. The judge nevertheless held that, because the notice was not valid and legally effective, it could not be regarded as founding a valid claim for payment against Amcor.60F[61]

Judge’s analysis of UC Notice #1 Revised

[61]Reasons, [2634].

UC Notice #1 Revised was constituted by an email of 14 November 2014. The accompanying letter was a letter by GHD dated 28 October 2014. The email also enclosed some very substantial additional documents, the contents of which the judge addressed in some detail. For present purposes, it is not necessary to address that material, save to observe that the judge identified the fact that the operative master plan at that time was not the Annexure B Master Plan.61F[62]
[62]Reasons, [2650], [2657], [2678], [2681].
The GHD letter accompanying UC Notice #1 Revised repeated the contents of the earlier accompanying letter to UC Notice #1 concerning lead impacts. The new information included in the 28 October 2014 letter concerned further friable asbestos in the soil.
The letter addressed the regulatory requirements concerning asbestos in soil in general. It referred to the NEPM 2013 (as well as requirements of the Victorian Environment Protection Authority (‘EPA’) and the Victorian WorkSafe Authority). It stated that the NEPM assessed acceptable concentrations of non-friable ACM as ranging from .01 per cent to .05 per cent dependent on land use, and as .001 per cent for friable asbestos regardless of land use. It referred to the fact that there was no currently approved method of determining a concentration of .001 per cent. It stated that there may be an opportunity to retain soil on site under a management plan but that such a plan ‘would be quite onerous’.
Then, addressing the friable asbestos said to constitute the contamination found, the letter stated:
As such it is considered that due to the hazardous nature of friable asbestos, particularly crocidolite asbestos, and the emotive issues associated with the presence of asbestos, that asbestos impacted soil in this area should be removed as far as practicable to minimise the risk of ongoing managements requirements and impacts on the development.62F[63]
[63]Reasons, [2696].
The equivalent statement in the accompanying letter to UC Notice #1 had been:
Due to the hazardous nature of friable asbestos, particularly crocidolite asbestos, it is considered unlikely that this soil will be able to be reused on-site and as such, it is considered that the asbestos impacted soil in this area will need to be removed in order to allow the Land to be used for medium density Residential use as specified in the Master Plan.63F[64]
[64]Reasons, [2696].
GHD’s letter of 28 October 2014 contained a description of where the additional friable asbestos-impacted soil had been located.64F[65] The letter set out proposed remediation work and contained an estimate of the costs of remediation.65F[66]
[65]Reasons, [2696].
[66]Reasons, [2696]–[2697].
The judge observed:
As required by SC 11.5(a)(ii)(A), GHD’s letter report identified, as best it could at that point in time, the presence, location and nature of the asbestos in soil impacts, but in so doing GHD again failed to articulate why the presence of the asbestos impacted soil is ‘Contamination’ and ‘Unidentified Contamination’ for the purposes of the APM Contract. …66F[67]
[67]Reasons, [2701].
The judge further observed that, as the additional asbestos contamination had been discovered in the course of demolition, ‘it was necessary for GHD to consider whether the presence of that asbestos contamination and its removal was encompassed within ‘Demolition Works’ (as defined in the APM Contract)’.67F[68]
[68]Reasons, [2701]. The experts in the s 65M process agreed upon the removal of Contamination the remediation of which was considered to be encompassed within Demolition Works.
The judge considered that the GHD letter did not contain a ‘clear statement’ of opinion concerning the necessity to remediate, and in that respect, the judge highlighted the contrast between what was said in this letter and what had been said in the letter of 23 May 2014 (as respectively quoted above).68F[69]
[69]Reasons, [2706].
The judge’s relevant conclusion on validity was as follows:
In my view, the above opinion expressed by GHD as the Environmental Consultant does not conform with the requirements of SC 11.5(a)(ii)(B), insofar as GHD did not articulate why the ‘additional asbestos contamination’, being apparently the friable asbestos, posed a risk to human health or the environment and thus constituted ‘Contamination’ for the purposes of the APM Contract; nor did GHD opine ‘as to whether the Unidentified Contamination must be remediated in order to allow the Land to be used for the uses specified in the Master Plan’. Instead, in forming its opinion, GHD relied on or was influenced by ‘the emotive issues associated with the presence of asbestos’ and referenced the need to ‘minimise the risk of ongoing management requirements and impacts on the development’ as reasons why the asbestos impacted soil in this area should be removed. It is unclear what relevance either of these matters has to the opinion required to be provided by the Environmental Consultant under SC 11.5(a)(ii). Moreover, GHD fails to articulate the reasons why it considers the remediation of the Unidentified Contamination is ‘necessary’ to allow the Land to be used for the uses specified in the Master Plan, and GHD does not identify the relevant (specified) land use to which the ‘necessary’ remediation works were directed.
Turning to the requirements of SC 11.5(a)(ii)(C), in the case of the asbestos in soil impacts, while GHD has set out its proposed scope of works and estimate of costs in the letter report, each of the proposed scope of works and the estimate of costs appears to have been prepared by reference to the non-conforming opinion provided under SC 11.5(a)(ii)(B), rather than by reference to what is ‘the necessary remediation’ of that ‘Unidentified Contamination’ for the purposes of the APM Contract.
Accordingly, I am not satisfied that the Environmental Consultant’s opinion GHD has provided in respect of both the earlier reported asbestos in soil impacts and the additional asbestos in soil impacts notified or addressed in GHD’s 28 October 2014 letter report met or satisfied the criteria specified in SC 11.5(a)(ii) (A), (B) and (C) of the APM Contract and thus could not fairly be regarded as ‘legally sound’ or ‘well–founded’.
For the foregoing reasons, including those relevantly set out above in respect of UC Notice #1, I am not satisfied that UC Notice #1 Revised was a valid notice for the purposes of SC 11.5(a) of the APM Contract in respect of either the lead impacts or the asbestos in soil impacts observed by GHD.69F[70]
[70]Reasons, [2707]–[2710].
Amcor did not object to UC Notice #1 Revised, but the judge considered that as the notice was not ‘valid’, it was not ‘effective to enliven’ the relevant provisions.70F[71]

Judge’s analysis of UC Notice #2

[71]Reasons, [2712].

UC Notice #2 was constituted by an email of 19 March 2015. The accompanying letter by GHD was also dated 19 March 2015.71F[72]
[72]Reasons, [2714]–[2718].
The GHD letter began by advising that in the course of undertaking soil investigation and demolition works, previously unidentified areas of asbestos or asbestos containing materials had been encountered which required ‘further assessment, management and/or remediation’. Reference was also made to the friable asbestos the subject of UC Notice #1 Revised.
The letter attached an aerial photograph (figure 1) which marked in yellow the relevant locations of both the previously notified friable asbestos and the additional asbestos affected areas, annotated as ‘Asbestos Impact Area’.
Section 1.1 of the letter again set out what were said to be applicable regulations concerning the treatment of asbestos. Reference was again made to the EPA, the Victorian WorkSafe Authority, and the NEPM 2013. The judge set out this section in full.72F[73]
[73]Reasons, [2720].
The letter made the point that had been made in the letter accompanying UC Notice #1 Revised, and which Mr Kluckow explained in the passage quoted earlier, to the effect that, in practice, the ‘issue’ with friable asbestos is that there is no approved method for determining a concentration of .001 per cent and that it ‘could be’ difficult to ‘demonstrate that there is no risk to potential site uses under any land use scenario’ and therefore that friable asbestos should be removed where identified.
In relation to bonded asbestos, section 1.1 of the letter made two relevant points. The first was that while bonded asbestos can be abated on site, that process might prove more expensive than to excavate and dispose of it. The second was that asbestos impacted soils which remained on the site would require ongoing management, and ‘onerous or impracticable’ ongoing management conditions in an environmental audit would be ‘unacceptable and unreasonable’.
The letter then referred to the asbestos fibres previously the subject of UC Notice #1 and UC Notice #1 Revised, and advised that that contamination was found to have extended beyond the switchyard area previously identified. The letter contained a breakdown of the additional costs incurred during the remediation.
After dealing with the previously identified contamination, the letter, in summary, then:
(a)stated that friable asbestos had been discovered in the area of the ramp adjacent to the switchyard in zone 5, advised that while asbestos controls were already in place soil from the ramp had been excavated and taken off site, and set out a table of the costs incurred;
(b)stated that friable asbestos had been observed during the removal of concrete slabs around the water tower by the demolition contractor, and advised that soil had been excavated and taken off-site and that validation samples indicated that several areas required further excavation, and set out a cost ‘estimate’ (including costs already incurred) of the remediation;
(c)stated that during the removal of concrete slabs from the southern part of the recycling centre, the demolition contractor had noted subsurface asbestos cement pipes and fragments of bonded asbestos, explained that a four day abatement trial had been undertaken, and gave an estimate of the cost of abating the bonded asbestos (including the costs already incurred), with the additional observation that it might be more cost-effective to remove and dispose of the impacted soil;
(d)stated that bonded asbestos cement sheeting had been observed in zone 7, explained the proposed remediation strategy, and gave an estimate of the cost of abatement;
(e)stated that concerns had been raised as to the possibility of friable asbestos in the riparian zone, that investigation had indicated two areas impacted with friable asbestos along the western end and central portion, and set out costs already incurred for the investigative works;
(f)stated that previously unidentified heterogeneous fill had been discovered in zone 6 which, it was said, ought to be remediated ‘due to issues with aesthetics’ and gave an estimate for the cost of remediating zone 6;
(g)stated that fragments of ACM had been observed in fill material in the finishing room, advised that it was not cost-effective to abate this material due to its poor condition and that impacted soil would be disposed of off-site, and provided an estimate for the remediation;
(h)stated that visible friable asbestos had been observed in the clarifier and sediment tank and in pipes running out of the clarifier, stated that soil analysis had indicated the presence of amosite and chrysotile asbestos fibres, and gave an estimate of the cost of excavating and disposing of the asbestos impacted soils;
(i)stated that a significant number of subsurface services across the site had been constructed from asbestos cement materials, advised that the demolition contractor was managing and removing these pipes, and advised that the cost could not be estimated but the rates for removal were set out;
(j)stated ACM debris had been noted in the surface fill beneath the former engineering store compound, which would require further testing or assessment; and,
(k)stated that fragments of bonded ACM had been observed at the surface of the former solid waste recycling area and that further investigation and management may be required.

Issue 1 was whether Glenvill was entitled to the Revised Outstanding Claims Amount by reason of the certifications by Montlaur ie the progress claims. Issue 2 was whether the amount claimed in the progress claims related to the Remediation Works as defined under the APM Contract, or related to other works as defined under the APM Contract (such as the Demolition Works or the Consultant’s Works) or other works for which Amcor was not liable under the APM Contract. Issue 3 related to whether Glenvill had proved that the progress claims were for the cost of Remediation Works. This related to whether there were deficiencies in the quantification by Montlaur (or the evidence of Mr Bolt or Mr Kritzler relied upon by Glenvill to support Montlaur), and/or in the records of Delta, CSC and/or EPS, such that there was no evidential basis to conclude the amounts claimed in the progress claims related to Demolition Works, the Remediation Works or the Consultant’s Works.496F[497]
[497]‘Further Revised Joint List of Issues’ 24 March 2021; See also, Reasons, [1925].
Issue 12 sought determination by the Court of the matters under SC 11.5(c). Some of issues 13–19 were related to issue 12. For example, Issue 13 concerned how the issues set out in SC 11.5(c) were to be determined by the Court in respect of the relevant UC Notices. Issue 14 related to whether it was a precondition to Amcor being liable for the costs of Unidentified Contamination that the Court make a finding under SC 11.5(c)(i)–(ii) and a finding that identifies the ‘scope of work’ Glenvill actually carried out in respect of remediation of Unidentified Contamination and/or as to the costs of that scope of work. Issue 15 was whether the expert report of Mr Sinclair provided to the Court was a proper basis upon which to make such findings for the purpose of issue 14.
As to the evidence, as set out in the majority reasons, the Court made orders on 1 December 2017 for Mr Phil Sinclair to be appointed under s 65M of the Civil Procedure Act 2010 as an independent contamination expert for the purpose of assisting the Court and reporting to the Court on the questions set out in a Schedule to that order. Glenvill subsequently appointed Dr Peter Beck of GHD and Amcor appointed Mr Ian Kluckow of Golder to act as their respective experts in the s 65M process. Each of Dr Beck and Mr Kluckow prepared reports for consideration by Mr Sinclair (the ‘first Beck report’ and the ‘Kluckow report’, respectively). Mr Sinclair produced a report dated 19 October 2018 (the ‘Sinclair report’). Pursuant to the orders of Justice Kennedy made on 13 December 2018, Mr Sinclair filed a supplementary report on 7 February 2019 (the ‘first supplementary Sinclair report’).
Further, Dr Beck provided a further expert report on 27 March 2019 (the ‘second Beck report’) and Mr Kluckow provided a witness statement dated 18 November 2019 (the ‘Kluckow statement’). Mr Sinclair filed a further supplementary report on 29 January 2021 (the ‘second supplementary Sinclair report’). Dr Beck, Mr Kluckow and Mr Sinclair each gave evidence and were cross-examined at trial.497F[498]
[498]On 1 December 2020, the judge made orders concerning the expert evidence. She ordered in effect that the first Beck report, the second Beck report, the Kluckow report and the Kluckow statement be admitted into evidence subject to the limitation that, while the evidence was admissible to prove the opinions held by Dr Beck and Mr Kluckow, respectively, it was inadmissible to contradict the opinion of Mr Sinclair as stated in the Sinclair report and the first supplementary Sinclair report.
Further, as noted above, each of Glenvill and Amcor called an expert quantity surveyor, Mr Bolt and Mr Kritzler respectively, in order to establish the costs of the works necessary to remediate the Unidentified Contamination. Each of Mr Bolt and Mr Kritzler gave evidence and were cross-examined.
Turning to the reasons and to issues 2–3, as set out above, the judge concluded the Montlaur certificates were not binding including because Montlaur was not aware at the time of certification of the terms of the Deed of Variation No 1 or the changes made to the relevant definitions.498F[499]
[499]Reasons, [1855]–[1872].
Further, the judge concluded that in substance that Glenvill had failed to ensure its contractors produced necessary invoices to establish that works were related to the Demolition Works and/or the Remediation Works (including in relation to Unidentified Contamination) to allow the quantity surveyor to certify the proper amount of such costs under SC 11.3(b).499F[500] This is in light of the detailed submissions of Amcor set out by the judge.500F[501] In that section, the judge set out the evidence that was given by the representatives of CSC (Mr Scoble) and EPS (Mr Scott) to the effect that they did not keep records showing the volume of soil excavated from each area of the site on which they worked, or the depths from which the soil was excavated.501F[502]
[500]Ibid [1999]–[2001].
[501]Ibid [1931]–[1953].
[502]Ibid [1936]–[1945].
In this context, the judge concluded that:
(a)Glenvill failed on a number of levels to ensure that the performance of its obligations under SC 11.2, in procuring the Demolition Works and the Remediation Works and in tendering, contracting and managing them, would provide a proper or sufficient basis to enable it to satisfy the requirements in SC 11.3;502F[503]
(b)once the APM Contract was amended by Deed of Variation No 1, Glenvill did not ensure the contractor’s records would, in each case, provide information sufficient to enable Montlaur to identify the Demolition Works and the Remediation Works;503F[504] and
(c)as a result, Glenvill fell short of discharging its evidentiary burden to establish the value of the work for which payment was sought from Amcor.504F[505]
[503]Ibid [1999].
[504]Ibid [2000].
[505]Ibid [2001].
The judge then concluded505F[506] that, ‘[i]n my view, for the reasons advanced by Amcor, Glenvill had failed to prove the amounts claimed from Amor [in the progress claims] were in each case demonstrably for the costs of Remediation Works’ as defined under the APM Contract.
[506]Ibid. See also [817] above.
These findings in [833]–[834] must not be read in isolation. They must be read in light of the submissions of Amcor, accepted by the judge in an earlier part of the Reasons, that Glenvill failed to call relevant evidence to establish its claim for the costs of the works necessary to remediate Unidentified Contamination.506F[507]
[507]Reasons, [569]–[586].
Relevantly, Amcor relied upon Glenvill’s failure to:
(a)produce the surveys of Reeds Consulting Pty Ltd which was responsible and on site for surveying the volumes of contaminated stockpiles ie the volume of contaminated soil;507F[508]
(b)produce the soil validation logs of Prensa Pty Ltd which was responsible for assessing and disposing of contaminated soil on behalf of Delta and prepared soil validation logs about the methodology used to record the volumes and locations of asbestos-contaminated soil that was excavated at the site;508F[509] and
(c)call a number of witnesses, including witnesses from Montlaur, Delta and Mr Ken Mival, the environmental auditor for the site.509F[510]
[508]Ibid [575]–[577] and [582].
[509]Ibid [578]–[582].
[510]Ibid [569]–[574].
The judge made Jones v Dunkel findings in relation to the failure to produce the Reeds Surveys and the Prensa soil validation logs.510F[511] This is in a context where she concluded that the Reeds Surveys were of real significance from at least June 2016 and were clearly relevant by April 2017 when the ‘remove all fill’ strategy was adopted.511F[512] The judge also made Jones v Dunkel findings in relation to Glenvill’s failure to call Mr Mival and an employee from Reeds Consulting.512F[513]
[511]Ibid [583]–[585].
[512]Ibid [585].
[513]Ibid [586]. See also [3880].
Amcor repeated those submission in the context of issues 2–3.513F[514] It was in the context of her earlier findings summarised at [837] above, the judge made the conclusions set out in [833]–[834].
[514]Ibid [1931]–[1953] concerning Glenvill’s failure to keep proper records; [1954]–[1960] concerning the failure to produce the Reeds Surveys and Prensa soil validation logs; [1961]–[1964] concerning the failure to call relevant witnesses.
As to issues 12–19, in light of her determination that the UC Notices were invalid, the judge concluded it was unnecessary to determine these issues.514F[515]
[515]Ibid [3360]–[3376].
Nevertheless, when dealing with issues 13–15, the judge addressed in detail the evidence given by Dr Beck, Mr Kluckow and Mr Sinclair in the context of considering these issues, and in particular the s 65M process.515F[516]
[516]As to Dr Beck, see ibid [3102]–[3706] and [3872]–[3807]; As to Mr Kluckow [3712]–[3807] and [4195]; As to Mr Sinclair [3808]–[3866].
The judge also addressed the issues of quantum relating to Glenvill’s cascading claims referred to above,516F[517] which included addressing the evidence of Mr Bolt and Mr Kritzler.517F[518] In this context the judge noted the evidence called at trial from Delta, CSC and EPS concerning the works in fact performed and the costs incurred.518F[519]
[517]Ibid [3905]ff.
[518]See, eg, ibid [3965]–[3972] in respect of Mr Bolt; [3955], [4013], [4090]–[4093] in respect of Mr Kritzler.
[519]Ibid [3911]. The judge had previously noted that no representative of Montlaur was called at trial at [376] and [3912].
Turning to the s 65M process, the judge concluded that process was ‘of only limited utility’.519F[520] One of the reasons for this conclusion was that Mr Sinclair was not able to form a concluded view on some of the questions for his determination, most relevantly question 6 which provided:
What is the scope of works and estimate of costs for the necessary remediation of the Unidentified Contamination, that are additional costs above those estimated in the GHD Remediation Cost Estimate?
[520]Ibid [3881].
I note that question 6 was reflected in issue 12(c) and also in part in issues 13–15.
In the Sinclair report, Mr Sinclair records the methodology used by Dr Beck and Mr Kluckow to estimate the volume of soil removed from the site arising from Unidentified Contamination.520F[521] The need for these estimates arose from the absence of documentation from Glenvill’s contractors of actual information as to the volume of soil arising from Unidentified Contamination removed from the site. I am conscious that, based on the estimates of expert of soil removed, Dr Beck concluded the estimate of those costs was $30.23 million and Mr Kluckow estimated those costs at $21.6 million.521F[522] Further, Mr Sinclair expressed the view that the most probable remediation cost for Unidentified Contamination is likely to be lower than Dr Beck’s estimate.522F[523]
[521]Sinclair report dated 18 October 2018, sections 7–8.
[522]Ibid section 7, page 18.
[523]Ibid section 8.3.
Nevertheless, Mr Sinclair was not willing to accept those estimated volumes (or estimated costs based on them) for the purpose of his expert opinion in answering question 6. In substance, Mr Sinclair concluded that to determine question 6, it was appropriate to have regard to information which recorded the actual works rather than modelling. He could not do so.523F[524] I pause to note that there was a clear link for all experts between determining the necessary scope of work (including the volume of contaminated soil which had to be removed by way of remediation) and the costs of the necessary scope of work.
[524]Ibid section 8.4; See also Reasons, [3851].
As a result, Mr Sinclair was unable to reach any conclusion regarding the cost or scope of work for the purpose of question 6. This was confirmed by the second supplementary Sinclair report where he states in section 3.2:
I had to state my opinion was an unconcluded one because of the subjective basis of some calculations used in or which form the basis of the remediation cost estimates provided by the parties experts.524F[525]
[525]Reasons, [3831]. For completeness, in my view, these statements are not inconsistent with Table A of the first supplementary Sinclair report dated 7 February 2019 relating to the depth of remediation.
As the judge records, when cross-examined about question 6, Mr Sinclair ‘frankly acknowledged’525F[526] he did not answer the first part of the question regarding the necessary scope of work, saying:
I have reflected on that and in hindsight I’d say I felt I could not readily identify the scope of works, but I haven’t stated that in the evidence.526F[527]
[526]Ibid [3899].
[527]Ibid [3862] and [3899].
Further the judge referred to the evidence of Mr Sinclair addressing the assumed depth of up to two meters without basement and up to four metres with basements in the first supplementary Sinclair report. In summary, Mr Sinclair stated that this assumption was based on the agreement of the experts which was a ‘conservative and simple solution’.527F[528] However, the judge found that Mr Sinclair did not articulate a ‘coherent reason or rationale’ that would assist the Court to understand why those remediation depths represent the necessary remediation of the Unidentified Contamination.528F[529] While depth was not relevant to the identification of the ‘presence, location and nature’ of the Unidentified Contamination, it was of relevance to the necessary scope of work and the costs of that work.529F[530]
[528]Ibid [3861].
[529]Ibid [3898].
[530]Ibid [3740].
Further, the judge observed, in substance, that having heard Mr Sinclair’s evidence she ‘better’ understood why he was unable to resolve the difference of opinion between Dr Beck and Mr Kluckow as to the volume of material requiring remediation under the UC Notices. She continued:
In my view, this is an aspect of the case where the Court might have been assisted at trial by evidence from a representative of Reeds Consulting/Reeds Surveys, whom Glenvill engaged as site surveyor in late July 2013, about the methodology Reeds Surveys used to record the volumes of soil excavated at the Alphington site from the inception of the APM Contract.530F[531]
[531]Ibid [3880].
In my view, it follows that the judge accepted the link between the failure of Glenvill to produce adequate evidence, including records, and the inability of Mr Sinclair to form a concluded view of the necessary scope of work and the costs thereof.
Finally, Mr Bolt acknowledged, under cross-examination, that he was never asked to cost the scope of works that was contained in Mr Sinclair’s reports. Mr Bolt stated that the scope of works was ‘provided to us’ and that he understood that there was ‘an independent body that determined the full scope of works’.531F[532] The judge characterised this evidence as ‘to the effect that [Mr Bolt’s] reports do no more than express a view as to the value of those works that Glenvill and GHD had apparently informed Mr Bolt were ‘Remediation Works’’.532F[533] As a result, to the extent that Glenvill relied on Mr Bolt’s evidence to establish that a quantity surveyor would be capable of providing an estimate of quantum, it is clear that Mr Bolt did not undertake the required task of assessing the necessary scope of work.
[532]Ibid [3965].
[533]Ibid [3966]. See also [3961].
The statements of the judge at [4178] of the Reasons are consistent with the comments of the judge at [833]–[834] above. So too, are the statements of the judge where she agreed with Amcor’s submissions that Glenvill had failed to comply with a ‘core element of the contractual process … [which necessarily] … required the contractors to keep appropriate records so as to enable that verification process to take place’.533F[534]
[534]Ibid [4130].
In light of this survey of the claims made, the evidence led and the matters addressed in the Reasons, I consider that the judge concluded in substance and effect that:
(a)Glenvill fell short of discharging its evidentiary burden to establish the value (ie the cost) of the work for which payment was sought from Amcor for the remediation of Unidentified Contamination; and
(b)Mr Sinclair and thus the judge were unable to reach a concluded view of the necessary scope of work under SC 11.5(c)(iii) in respect of remediation of Unidentified Contamination or an estimate of the costs of that work.
Each of these conclusions were in large measure due to the absence of relevant records and witnesses to determine the necessary scope of work and the value or cost of that work. In addition, in the case of Mr Sinclair, this conclusion was also due to the related unwillingness of Mr Sinclair to accept the estimation by Dr Beck and Mr Kluckow of the volume of contaminated soil which was removed for the necessary remediation of Unidentified Contamination or to give a coherent reason for the depth they had agreed that was necessary to remove the contaminated soil.
In the course of argument, Glenvill handed up an aide-memoire which purported to provide examples of records which demonstrate that there is sufficient evidence filed in the trial below that would enable assessment of the necessary works of the remediation of the Unidentified Contamination. I have reviewed this document and I am not satisfied it addresses the deficiencies as identified by the judge referred to above.
In these unusual circumstances, I am not satisfied there is any utility in remitting this proceeding to the Trial Division. This is because I do not consider that Glenvill is able to discharge the evidentiary burden to establish the necessary scope of work or an estimate of the costs of that work under SC 11.5(c)(iii).
For completeness, I am conscious that the evidence given by the experts who took part in the s 65M process related only to the UC Notices that were objected to by Amcor, ie not UC Notices #1, #1 Revised or #4. However, it is clear from the analysis set out above that the relevant conclusions of the judge as to the inadequacy of Glenvill’s evidence and the related inability to identify the necessary scope of work would also apply to the notices to which Amcor did not object.
Even if these conclusions of the judge were not ‘Findings’ and or ‘dispositive’ in the strict sense, I can see no utility in remitting this proceeding in light of the substance of the conclusions set out in [853] above. Relatedly, in a context where there has already been a 40-day trial in which Glenvill was able to raise any claim or evidence it sought with the assistance of solicitors and counsel, I do not consider the remittal of this proceeding for further consideration to the Trial Division consistent with the overarching purpose of the Civil Procedure Act 2010 and in particular ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.534F[535]
[535]Civil Procedure Act 2010 ss 1(c), 8(1).
As a result, I am not satisfied that there is any utility in remitting this proceeding.

Summary of conclusions

As a result, I:
(a)grant leave to appeal in respect of proposed ground 1 and allow the appeal;
(b)grant leave to amend proposed ground 2 and grant leave to Amcor to extend the time to file its notice of contention;
(c)grant leave to appeal in respect of proposed grounds 2(a), (b) and (c) but dismiss those grounds;
(d)refuse leave to appeal on proposed ground 2(d); and
(e)refuse leave to appeal on proposed grounds 3 and 4.
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[2025] VSCA 48

27 March 2025