Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd
[1989] FCA 357
•8 Jun 1989
LIVTTED DISTRIBUTIOS
~ O T SCITASLE FOR REP~RTTSG
. l IT... .-,, - . Q - ,, 357
IN THE FEDERAL COURT OF AUSTRALIA ) 1 QUEENSLAND DISTRICT REGISTRY
) NO. G198 of 1986 \
GENERAL DIVISION 1
BETWEEN: CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.(Applicant) - AND: WHITE INDUSTRIES (QLD.)
PTY. LTD.(Respondent) AND BETWEEN: WHITE INDUSTRIES (QLD.)
PTY. LTD.
(First Cross-Claimant)
AND : CABOOLTURE PARK SHOPPING - CENTRE PTY. LTD.
(First Cross-Respondent)
" ~ % , , ~
- 7 r .*
Coram: Ryan J i
' I <
Date: 8 June 1989
- f ,,Ju~!9Eq
Place: Brisbane - 3% C J ~ ~ ~
\. iE3=;UjTw~\A
F,,,..,;.:hL
*EG J ~ R Y
REASONS FOR JUDGMENT ON MOTION ON NOTICE DATED ..
20 APRIL 1989 FOR LEAVE FURTHER TO AMEND ,
REPLY AND ANSWER TO CROSS-CLAIM .
By motion on notice dated 20 April 1989, the applicant, Caboolture Park Shopping Centre Pty. Ltd. ("Caboolture Parkn), harr.rought leave further to amend its amended reply and answer to the cross-claim filed on behalf of the first respondent, White Industries (Qld.) ~ t y . Ltd. ("WIQ"). Not all of the proposed amendments have been opposed by WIQ, and I give leave to Caboolture Park to make those amendments which have been incorporated in a consolidated version of the
reply and answer filed on 1 May 1989. I propose to deal separately and in order with the remaining proposed amendments which are opposed by WIQ.
Proposed new paragraph for insertion 14(c)(ii)
Caboolture Park seeks leave to insert in its amended reply and answer a lengthy additional pleading related to work performed by Gay Constructions Pty. Ltd. ("Gay"). That pleading makes substantially slmilar allegations in respect of that contract as are made by paragraph 14(c)(iiA) which was inserted by leave granted on 21 March 1989 and which is related t n bulk and detailed earthworks carried out by Lobegeier Earthworks.
It is first alleged that Caboolture Park has suffered
damage in an amount of $40,706.95 as the result of WIQ's
negligence in failing to include in the Gay sub-contract a
requirement to carry out work associated with the supply and
fabrication of steel members and components in connexion with
the airconditioning system, and in a further amount of
$4,676.72 as a result of WIQ's failure to include a schedule
of rater for cold formed steel which might be used by Gay incarrying' out variations. It is then alleged in the alternative that the Gay sub- contract expressly or impliedly required Gay to supply and
C
erect steel in connexion wlth the airconditioning system and to supply and fabricate cold formed steel without addition to the sub-contract price.
In my reasons for allowing the Lobegeier amendment published on 21 March 1989, I concluded at p. 10:
"Accordingly, in granting this earlier and some- what narrowly framed application for leave to amend, I should not be taken to condone the process in which Caboolture Park has chosen to engage. Nor should I be taken as indicating that any further application for leave to amend, whether of the same piecemeal nature or consolidated to include all amendments regarded as desirable in the light of new or different information from Mr Priestley and Mr Lacis, will be accorded a similar favourable exercise of the Court's discretion.
I consider that the detriment to WIQ as a result of the present amendment can sufficiently be
cozpenaoied by appropriate orders for costs.
Therefore, as I have already hinted, I am led on a delicate balance of the competing factors, to allow the application for leave to amend in respect of bulk and detailed excavation."
Unlike Lobegeier, Gay was one of the sub-contractors which had been joined as a cross-respondent in these proceedings. A separate trial of issues pertaining to its sub-contract and the performance of work by it had originally been scheduled to commence as the ninth of the twelve separate trials, in relation to joined sub-contractors, on 11
~ u g u s t 1988. 1t wae in August 1988 that WIQ compromised the claims against it of Gay and nine other joined sub- contractors on the reasonable assumption that the pleadings 1. as they then stood contained all of the allegations which
. Caboolture Park intended to make in respect of the Gay sub-
contract. . A further point of difference between Caboolturs Park's application to add further allegations related to Lobegeier and the present application, as far as it concerns Gay, is that the earlier application was supported by an affidavit from ~r Bennett who was actively engaged on behalf of Caboolture Park as an estimator while sub-contracts were being let and work was being performed at the Caboolture Park site. Mr Bennett deposed amongst other things that:
"... Prior to this sub-contract being entered into
between Whites and Lobegeier I was at no stage informed nor did I become aware of the wording and details of it and in particular I was not aware of the allegation that the sub-contract was drawn on a b a s i ~ which excluded from the lump sum
amounts payable tberei: t kc ~ ~ 6 t 6 of fiii and backfill. 4. I assumed from normal building industry practice when I became aware that Lobegeier had a sub-contract to do the bulk and detailed excavation that such contract included all fill and backfill. Save in the most exceptional circumstances (which ordinarily is involved only in cases with a small amount of fill and backfill work) I have never known the work included in earthworks to be divided up to involve excavation and fill and backfill to be performed other than pursuant to one contract at either a fixed price or a Schedule of Rates. I have never previously known of an earthworks sub-contract organised upon a basis whereby the excavation is at a fixed price and fill and backfill are priced as a variation to the contract work at a day labour rate paid to the excavation sub-contractor."
No similar evidence attesting to the state of mind of any employee o t agent of Caboolture Park, at the time when the Gay sub-contract was concluded, has been adduced in support of the present application. It is clear that Caboolture Park cannot make out a claim in contract against WIe in respect of variations referable to work done by Gay because relevant variation claims by WIQ were approved and certified on behalf of Caboolture Park by its architect, and liability in respect of them and under the sub-contract as let has been admitted by Caboolture Park in its statement of claim.
The cause of action in negligence which the proposed amendment seeks to raise can still be pursued by Caboolture Park in separate proceedings if it wishes. In reasons for judgment published on 28 October 1988, in respect of an earlier application by Caboolture Park for leave to raise a similar new issue, I observed, at p. 20:
"In my view, in exercising that discretion in the ,.v--..-- C..SYS..L case i dm requlred to consider the extent to which the new issue involves evidence and argument common to issues raised by the existing pleadings and to balance the convenience of having that issue determined in the same proceed- ings against the delay and additional complexity attendant on that course, if as it almost certainly would, WIQ were to raise defences to the proposed new claims which need not be explored if the pleadings remain as they stand."
I consider that I should also take account of the other matters canvassed above, including the points of difference between the Lobegeier amendment and the proposed insertion in respect of Gay, and Caboolture Park's long and unexplained further delay in seeking leave to make the latter amendment.
The effect of all of those considerations is that the balance, w M c h in the passage quoted above from my reasons of 21 march 1989 I described as "delicate", has swung significantly against the grant of leave to make this amendment. Leave is accordingly refused.
aendments to Paragraph 14Ic)(vi) The body of this paragraph, as it stands, is in these
terms:
"(vi) The Cross-Applicant failed to co-ordinate the performance of the subcontract works by various Subcontractors, by failing to:-
( a ) take into account the order in which
subcontract works must necessarily be carried
out;
(b) make allowance for set-downs;
(c) take into account the time required for the performance of detailing and special finishes; and
(d) prepare, amend from time to time as the circumstances require, and adhere to a detailed construction programme.
The said conduct on the part of the Cross- Applicant was negligent in that it was the usual practice within the building trades generally for a head contractor to ensure the co-ordination of the performance of subcontract works so as to minimise disruption to individual Subcontractors.
As a consequence of the Cross-Applicant's said negligence the following variation claims by Sub- contractors have been incurred which would not otherwise have been incurred:-"
.O1 BY the proposed amendment it is sought to add a
reference to two further Variation Order numbers to the
siagle variation order number listed in sub-paragraph .Ol' of the particulars subjoined to this sub-paragraph. This does not significantly add to the matters already in issue and I allow the amendment to sub-paragraph
.03 A similar amendment is proposed by the addition of five Variation Order numbers to a value of $476.33 to sub- paragraph .03. It is likewise allowed. .04 Leave is granted for this proposed amendment which provides references to relevant variation orders within trade package 24 and quantifies the extra cost allegedly incurred.
.OS This amendment similarly provides references to two
variation arderc v i rh in t rada 2 4 and appears to
permit the alleged extra cost to be quantified. It too
is allowed.
.051 It is sought to insert the following new sub-paragraph in the particulars annexed to paragraph 14(c)(vi):
".051 V024/02, 03, 05, 09, 10 and 13
$1101.35
Cutting and finishing blocks to required levels. It is the usual practice in the industry for the structural trades to be co- ordinated so as to result in the construction of blocks walls of an
appropriate height and location to accommodate the fol1owir.g trades. I . Failure to co-ordinate the construction of blocks walls to appropriate heights due to failure to supply sufficient information to block layer resulted in
increased costs." .
No factual basis for that allegation has been established in the affidavit in support of the present application for leave to amend which was sworn by M C Priestley on 20 April 1989. As Caboolture Park has not indicated anything to negate the inference that changes to block walls were necessitated by design changes, I refuse leave to insert this new sub-paragraph.
.l0 This proposed amendment lnvolves the addition of references to a further four variation orders within trade package 6. Leave to insert it is granted.
-11 The amendment to this sub-paragraph provides further paiiicuiars by reterence to a Further three variation orders within trade package 6. It is allowed.
.l11 This is a new sub-paragraph. A factual basis for the allegtion contained in it is provided on p.5 of Mr priestley's affidavit. Leave to insert the new sub- paragraph is granted.
.l12 This new sub-paragraph is related to sub-paragraphs .O1 and .03 and like them is allowed.
-113 ~ o t opposed. .l2 This proposed amendment involves the addition of reference to a further nine variation orders within trade package 9. Leave to make it is gra&ted.
.l41 This is a new sub-paragraph alleging that extra costs as detailed in V0s 12/3 and 12/5 were incurred as a result of unnecessary double handling. Those variations were both approved by Caboolture Park or its architect and I am not persuaded that there is evidence from which negligence on the part of WIQ can be inferred of a kind to indicate a genulne issue in respect of this allegation. Leave to lnsert the proposed new sub- paragraph .l41 is refused.
.16) These are new sub-paragraphs in rcspac t of cwo
.17 i -18) variation orders within trade package 42. They raise issues which are related to those in sub-paragraphs
. 03 , .l11 and -112. Leave to insert them is granted.
mendrents t o Paragraph 14(c)(viii)
This paragraph of the existing reply and answer alleges that WIQ was negligent in claiming or allowing to be claimed variations in respect of charges which were "preliminaries" within the meaning of the head contract between it and Caboolture Park. Some fourteen pages of particulars have been
appended t o paragraph 14(c)(viii) of the existing pleading, referring t o variations involving craneage, scaffolding, temporary lighting, progressive cleaning, de-watering, access roads, concrete testing, provision of tools and equipment and the like. Insofar as the proposed amendments, involve the provision of further particulars in respect of claims already included under this paragraph they are not opposed. However,
leave is also sought to insert in those particulars new sub-
pargraphs as follows.
B. -031 - for engineers' supervisory fees in an amount of
$390. The application for leave to insert this sub-
paragraph is granted.
.l5 It is sought to add to this sub-paragraph a reference
to two further items in V0 6/6:
* s i ~ h t r a d ~ s l ~ b ~ ~ i attendance ji344.00 binding of concrete $436.44"
Caboolture Park's contention in respect of these items can be gathered from evidence already given by Mr Priestley in relation to similar items, and leave to insert the two additional items is granted.
-521 This proposed new sub-paragraph is in these terms:
"V024/13 - site allowance included
V 0 24/02-11 $185.98"
No b,~;is has been indicated in the evidence in support of th;'application for leave to amend for treating this claim for a site allowance as a "preliminary". Leave to insert the proposed sub-paragraph .S21 is refused.
.
paragraph Il(c)(xiii)
By this paragraph it is alleged that WIQ was negligent in claiming or allowing to be claimed variations for rectification which should have been carried out by WIQ or one or other of its sub-contractors at no extra cost to Caboolture Park. It is sought, over the objection of WIQ, to add the following sub-paragraph to the particulars sub~oined
to paragraph 14(c)(xiii):
".08 V01/2 Ramp redevelopment -
reworking of earth ramp is rectification work
$3169.22"
The passage of Mr Priestley's affidavit which deals
with t h i s ?art cf the z p p l i c a t i c i i Eoi irdve ro amend recites: "In addition items .031, .034, .08 and .l7 should be noted. Each of these itens concerns claims for work of a type already pleaded and in respect of which I have already given evidence. In respect of other items dollar amounts have been added. 1 have previously given evidence in respect of items of work of the same or similar type or category to those items contained in .O1 to .32."
In my view that evidence fails to identify a relevant genuine issue in respect of this item of work. No basis in fact or the expertise of the witness has been indicated for the inference that "ramp redevelopment" is the rectification of
sub-standard work by WIQ or one of its sub-contractors. This part o f ' t h o application for leave to amend is therefore '_ refused.
Leave is granted to add references to additional 2 -
variation orders numbered 4/1 and 4/6 to the one already
specified in sub-paragraph 30.Caboolture Park also seeks, again over the objection of WIP, to add the following new sub-paragraphs to the particulars to paragraphs 14(c)(xiii):
.322 J B Group remove saturated material from ramp and replace $1950.00 - $380.00 Inv. 28.5.86
.323 J B Group demol~sh blockwork and remove rubble $180.00 (1/4) + (1/4)
. 3 2 4 .? B Group r t ~ s v e saiurared materlal S.435.00 .325 B P Hire Invoice for dyna-drill which is a tool used for rectification $257.00
.326 J B Group break up and load out concrete
slab $240.00
.327 Provision of breaking and cutting tools
used for rectification $786.60
B P Inv. 500845, 500920, 500919, 500986,500936, 501639, 501659, 501895, 501928
.328 Provision of bondcrete for patching
concrete $7.55
.329 Provision of breaking and cutting tools used for rectification $99.40
B P Inv. 502228, 502240, 502205Provision of Oxy acetylene equipment used only for cutting reinforcement installed or cut incorrectly."
Of those items, fir Priestley has deposed:
"I have examined the documents in support of each of those claims and am of the opinion that the work set out therein amounts to rectification work upon the same bases as I have previously deposed to in allocating or describing items of work as rectification. In many instances the amendments amount to the addition of dollar sums to existing paragraphs or the addition of further items to paragraphs which are already pleaded."
In the light of the evidence which Mr Priestley has already given, it is clear that the approach taken by Caboolture Park to items like these is to use them to advance an expert opinion that equipment used or work performed as described in a supporting docket or invoice is consistent with rectification. It then proposes to invite the Court, if WIQ fails to adduce evidence suggesting some other reason for the relevant variation, to infer that it involved rectification attributable to the negligence of WIQ or one or more of its sub-contractors. It is true, as Mr Priestley suggests, that the same approach underlies a considerable body of particulars in the existing pleading. However, I am not disposed to multiply instances of Caboolture Park,
without btriflence from the architect or anybody else with ". direct knowledge of the circumstances, requiring WIQ to
adduce evidence tending to negate negligence on its part in
respect of approved variations. Accordingly, the application
,
for leave to insert sub-paragraphs .322, .323, .324, .325,
.326, .327, .328, .329 and .3294 is refused.
Paragraph 20By this paragraph, Caboolture Park has pleaded that it was an implied term of its contract with WIQ that Caboolture Park would not be liable in any circumstances for the items of work within the scope of works of a subcontract let by WIQ but for which WIQ claims in addition to the relevant sub- contract sum.
~t is also sought to add to the particulars to
paragraph 20 a reference t o c;:is:ion number V0 18/04 Item 6as to which Caboolture Park contends that the provision of cladding abutting acrylic sheeting on the sides of a barrel vault was flashing and was required to be provided by Profile Roofing as part of its sub-contract without addition to the sub-contract price. Caboolture Park is equivocal in its contentions about this item because it also seeks to contend that a backcharge should have been raised against the acrylic sheeting contractor, Plasfab, to the extent that it was relieved of the need to clad the sides of the barrel vault. The evidence tending to support the genuineness of an issue
ae to this item under paragraph 20 is not compelling, and, since Proffle was a joined sub-contractor, this part of the application for leave to amend is refused. Similar reasoning lends me to refuse leave to insert in the particulars to paragraph 20 a reference to V0 18/04 Item 9 w h k h was for an amount of only $162.50 which Caboolture Park similarly equivocally asserts should have been backcharged to the airconditioning sub-contractor, Environ, which was also joined as a respondent, and with which WIQ settled in August 1988. For similar reasons, leave to insert in the particulars to paragraph 20 a reference to V0 18/04 Item 11, as far as it is related to penetrations for airconditionlng units 12-17, and a reference to V0 18/04 Item 14, is refused.
A further group of new sub-paragraphs which Caboolture Park now seeks by leave to include in the particulars to paragraph 20 is as follows:
".282 Barnes Auto Inv. B1003 7.5.86
Provision of tower for repairs. Subcontract cl. 2(b)(i) requires the subcontractor to employ such plant and equipment as may be reasonably required to ensure completion of the works. Alternatively refer to paras. 22 and 24 hereof - $120.00
.283 Coates Hire Inv. 00188/1, 0207/1
Dewatering forms a part of the
responsibilities of the subcontractor in
the execution of his work. Obligation to
dewater also established by L h B Spec. 2B
cl. 9, Lobegeier subcontract Schedule B.
Alternatively refer para. 34 hereof -$259.57
.284 J B Group Involces 24.12.86
Item (a) clean up and remove rubbish. Cleaning is required to be undertaken by
, the subcontract pursuant to clause 13
Appendix A of the subcontract, clause 19 of Appendix C of the subcontract and clause 44 of the subcontract - $3656.00
Item (b) Temporary Electricity. Remove
power pole. Provison of temporaryf
electricity is requlred from SWR defer SWR
subcontract fifth Schedule. Alternativelyrefer para 24 hereof - $80.00
Item (c) access road and truck - $152.00.
Refer para. 24 and 35 hereof."
Although these are new items, the issue to which they are related is the same as that to which evidence has already been directed. I have concluded that, on balance, I should allow their insertion.
WIQ also opposes the grant of leave to insert proposed new sub-paragraphs as follows in the particulars to paragraph 20:
".501 Item 3
Clair Eor cost ot supplying and installing
conduits. Drawings Lynch & Blow 8122/A3-06,
8122/A3-07, Ove Arup 3907/SK20.11.85/1Adetail the conduits required. $250.00
.S02 Item 4 $110.00
.S03 Item 5 $893.00 Claim for blockout, 3600 X 100mm, panel 99. location of wall for which blockout in panel is requrred.
Subitem (i). Claim for cost to drawings for
conduits claimed in Item 3 above. Appendix
D requires provision of shop drawings..S04 Subitem (iii). Claim for cost of shop
drawings. Appendix D requires provision of these drawings.
.S05 Item 8 $4298.29
Claim for panels to elevations E and G.
These elevations and the panels required
are shown on 8122/A3-07." ,
Mr Perry of Counsel for Caboolture Park has indicated that no more than thirty minutes would be occupied in adducing evidence-in-chief in respect of these items. That may ~ndicate a similarly speculative approach to these items to that which I have criticized at pp. 12-13 of these reasons. However, I have again decided, on balance, to allow the insertion of these new sub-paragraphs.
~t is also sought to insert in the particulars to
paragraph 20 references as follows to items claimed in
invoices from M & B Rlgging:
".511 Item 13 $336.00
R 6 B iilgging Involce 67 Docket 2983 -
Claim for cost consequent upon inability to gain access to site. Subcontractor required to deliver upon site or alternatively
Appendix A Clause 9, Appendix B Clause 4,
builder required to provide access to site. regulates transportation of panels.
.S12 Item 14 $162.00
M & B Rigging Invoice 72 Docket 2987 -
Claim for cost consequent inability to
deliver panels. Appendix A Clause 9,
Appendix B Clause 4, Appendix C Clause 14,
Fifth Schedule Item C regulatestransportation of panels.
.S13 Item 15 $441.00
M 6 B Rigging Invoice 108 Docket 2988 - Claim for downtime due to icabllity to transportation of panels.
transport panels to crane. Appendix A
Clause 9, Appendix B Clause 4, Appendix C,
.514 Item 15 $381.50
M & B Rigging Involce 108 Docket 2989 -
Claim for cost of unload~ng or attempting to unload panels. Appendix A Clause 9,
Appendix B Clause 4, Appendlx C Clause 14,
Fifth Schedule Item C regulates
transportation of panels.
.S21 Item 22 $302.00
M c B Rigging Docket 2991 (part) - Claim for removing steel plates consequent upon inability to deliver panel, Appendix A Clause 9, Appendix B Clause 4, Appendix C Clause 14, Fifth Schedule Item C regulates transportation of panels.
.S22 Item 23 $114.00
M h B Rigging Invoice 2686 - Claim for
setting up steel plates required for
delivery of panels, Appendix A Clause 9,
Appendix B Clause 4, Appendix C Clause 14,
Fifth Schedule Item C regulatestransportation of panels."
nr Priestley has sworn, in respect of these items and those
which I have just discussed, that:"Items .S01 to .S22 are new items but concern types or categories of work which I have previously canvassed in evidence. In each instance I have examined the claim and the sub- contracts, drawings and specifications referred to in the proposed amendments, and am of the opinion that the items of work concerned are of the nature or type or are similar to the work required to be performed by those subcontracts, drawings or specifications."
A t least some of the M c B Rigging invoices suggest, on
their face;. that the charges were incurred as a result of
inability to deliver or transport cranes at the time or in
the manner contemplated by the relevant sub-contract. There
>
is no indication that evidence is available tending to establish that those extra costs were not incurred because of the "fast-track" method of construction which, it has been accepted on both sides, was adopted on this project. However, with considerable reservations, I have decided to allow the insertion as well of sub-paragraphs .511, .512, .513, .514, .S21 and .522.
Another opposed application to amend the particulars to paragraph 20 seeks the insertion of four new paragraphs in these terms:
".l481 Kelly Variation 70 Docket 18. Claim for
making good around fire services and
mechanical penetrations. Appendix B Clause
l(g)(vi), L 6 B Spec. Page 130 clause
2 3 i S j , i c i . S4i5.00 .l482 Kelly Variation 71 Docket 19 (part).
Blocking up around services duct. Appendix clause 23(b), (c). $485.00
.l483 Kelly Variation 72 Docket 20. Blocking up
around services duct. Appendix B Clause
l(g)(v), L & B Spec. Page 130 clause 23(b),
(C). $419.00
.l484 Relly 73 Docket 20. Building in around
doors. Appendix B Clause l(g). $295.00"
Mr Priestley has deposed as to those matters, amongst others, that:
"Items 1361 to 1621 all concern package 24,
betag the blockwork package. I have not given
evidence in respect of any of these items but have examined the claims concerned, the sub- contracts, specifications and drawings referred to, the affidavits filed by White Industries and am of the opinion that the items of work are of a type or nature or are similar to thgitems of work required to be performed by the sub- contracts, drawings or specifications referred to in each instance.'
I do not consider that evidence to be sufficient to indicate the existence of a genuine issue in respect of the proposed sub-paragraphs .1481, .1482, .l483 and .l484 because no attempt has been made to negative the inference open on the face of the Kelly dockets that the work was necessitated by design changes or was consequential on other variations properly claimable against Caboolture Park. Leave to insert those four sub-paragraphs is therefore refused.
For similar reasons, I also refuse leave to insert the
proposed additional paragraphs .1492, .1521, ,1522, .1523,
. F - .
.1524, .1525, .1526, .1551. .1552, -1553 .l554 and . L U L L .
Paragraph 21
This paragraph alleges that:
nIn the case of those subcontracts and items of work described below the Cross-Applicant has claimed against the Cross-Respondent the whole of the subcontract price but has not performed or procured the performance or completion of the items of work in such subcontracts to the extent described below:-"
~t is sought to add to the particulars subjoined to that paragraph an additional sub-paragraph .l92 in respect of some
29 item8 of work which it is contended the painting sub- contracter, Opat, was required by its sub-contract to perform ,. but which it omitted. No money amounts are indicated in the proposed new sub-paragraph to be the value of the allegedly omitted items of work. WIQ claims that to allow this amendment at this late stage would be detrimental to it because it compromised Opat's claim against it in August 1988 on the faith of Caboolture Park's pleadings as they then stood. Caboolture Park, on the other hand, contends that it gave notice to WIQ in October last year, in a response to a "Scott" Schedule, of its contentions in respect of the allegedly omitted paintwork. In my view that notice did not remove the detriment which WIQ incurred when it settled with Opat some two months earlier. For that reason, and because of its lack of particulars of value, leave to insert the proposed sub-paragraph .l92 is refused.
Paragraph 23
By this paragraph it is pleaded in effect that the cost
of rectifying any defects in workmanship or materials shouldbe borne by WIQ or the relevant sub-contractor and should not
be recoverable f rom Caboolture Park and that "I i In the
premises the Cross-Respondent is not liable to pay to the
CrossApplicant the sums set out in the particulars hereto".Caboolture Park first seeks to add to those particulars the following sub-paragraphs:
T. Pearson Invoices total $27,043.19 for concrete sawing, drilling and mowing. This
work is rectification as in only minor
cases are works set out in the drawings and specifications which required concrete
sawing, drilling or mowing. The fact that
sawing, drilling and mowing was used is to
rectify work built other than in accordancewith the plans and specifications $12436.26
+ $27043.19. Refer Schedule 'RP12' and
V06/38. Note: Includes $9103.88 *ich was backcharged. Refer Schedule F.
BP Hire Invoices total $10386.83 for
breaking and rectification tool hire.
Caboolture Steel Fabrication and Supply
Inv. for angle to rectify structure of
FS 22 - $260.22Caboolture and Dist. Co-op. Inv. for cement
and Bondcrete which is used for
rectification - $77.35Rectification of too wide joints in precast by application of extra wide joint fillin2 by compiete waterproofing. $5368.00 being
extra cost of contract let to complete
waterproofing.
Claims for day labour to jackhammer
concrete for structural changes and torectif floors, penetrations and base plate
areas 8 967.09. V06/63 - $179.20; V06/64 - $787.89
.041 V09/12, V09/20, V09/21 and V09/33
VO8/15, V08/17, V08/14
Claim for cost of cutting equipment, reinforcement was required to be cut and bent as part of the rate of supply of reinforcement. Further cutting only required for rectification. B 6 P Hiring
Invoices 503006; 503522; 503704; 503690;
503522; 503704; 503690; 5C3648; 502816;
' 502858; 700034
.042 V09/12, V09/16 and V09/20
Claim for day labour extended on,cutting
down walls and columns which wereLbuilt too
high. $2162.00
V09/12 - $990.00, V09/16 - $1172.00,
V09/20 - $90.00
.043 Claim for concrete cutting of penetrations
and rebates - $1,606.00
V09/12 - $270.00, V09/20 - $468.00,
V09/21 - $702.00, V09/33 - $166.00.044 V09/12, V09/16, V09/20, V09/21 and v09/33
Clalm for day labour expended on cutting,
bending, trimming and refixing
reinforcement - $2,298.00
V09/12 - $324.00, V09/16 - $216.00,
V09/20 - $520.00 + $544.00,
V09/21 - $198.00 + $352.00,
V09/33 - $144.00
,045 v09/16 and V09/33
cialm for day labour expended on drilling
for starter bars which should be cast in -
$342.00
V09/16 - $54.00, V09/33 - C 2 3 3 . 0 0
Alf Page 54 and 55) - $54.00
Claim for day labour scabbling (Refer Masa specification. L 6 B Spec. Page 78 Clause 3 refer AS1480."
AS to those claims, amongst others, Mr Priestley has deposed:
''With respect to items .011 to .361, I have
previously given evidence in respect of eitherthe actual items concerned or items of a same or
allocate or describe the Items of work concerned similar nature. In each instance I have examined the variation orders and supporting material and a8 rectification on the same basis as that
previously described in evidence."
It will be apparent that Caboolture Park takes the same approach to these items as that described pp 12-13 of these reasons. The inference that an item of expenditure was for rectification of defective work or unsuitable materials is more readily available where the relevant variation has
not been approved on behalf of Caboolture Park. However, I consider that for a genuine issue to be raised in this way by Caboolture Park in respect of any one of these items, the relevant document on its face, when read as a whole, should suggest clearly that the item involved rectification of some defect for whrch WIQ or one of its sub-contractors was responsible.
Not all of the clalms to which the proposed new sub- paragraphs .031 and .032 are related satisfy that criterion, nut I am prepared, on balance, to allow the insertion of those sub-paragraphs. On the other hand, the dockets from Caboolture Steel Fabrication and Supply and from Caboolture and District Co-operative do not prima facie suggest rectification of previously defective work, and I refuse leave to insert proposed sub-paragraphs .033 and .034.
Variation claim 6/47 was approved on behalf of Caboolture Park, and the final claim for additional jointing by Complete Waterproofing Systems does not suggest that any of that firm's work was by way of rectifying previously
defecti*. workmanship or materials. Accordingly, leave to 9 insert the proposed new paragraph .036 is refused. On the
other hand, the documentary material relied on in paragraph
.0401 does suggest that some labour may have been spent on
.
rectification in the requisite sense and leave-to insert that
sub-paragraph is granted.Some of the documents referred to in the proposed new sub-paragraph .041 can be interpreted as indicating rectification of defective work. Others tend to negate that inference. Because no money amounts are attributed to any of the items said to be by way of rectification, I refuse leave to insert that sub-paragraph.
The documents referred to in the proposed new sub- paragraphs .042 to .046 also do not support the inference, which Caboolture Park intends to invite the Court to draw, that they involved rectification of previously defective workmanship. If anything they tend to suggest that the work was necessitated by late changes to the drawings. Leave to insert those five sub-paragraphs is likewise refused.
The next disputed proposed new sub-paragraph in the particulars to paragraph 23 is:
Sherrin Invoices 70201 and 70202 Hire of Cherry Picker. This machinery is not ordinarily used other than for high level rectification or repair. $520"
No basis -appears on the face of the Sherrin dockets or elsewhere for the'expression of the opinion that the cherry picker referred to was used on two successive days in September 1986 for "rectification or repair? of defective work for which WIQ or one of its sub-contractors was responsible. Leave to insert the proposed new sub-paragraph .l01 is refused.
It has also been sought to include in the particulars to paragraph 23 the following reference to V0 20/18 Item 2:
20/18 1tem 2 (part only) Claim $1,667.68
Insofar as the claimed for $1,667.98 includes a claim for 'supply carpet and repair in cash office of Coles Myer' (refer letter Master Carpets to the cross-claimant dated 4 November, 1986) the claim is for rectification. Until such time as the cross-claimant supplies further particulars of the work done and the means and method of calculation of the claim for item 2, the cross-respondent is unable to particularise how much of the amount claimed in item 2 is attributable thereto."
The formulation of that amendment reveals, on its face, the speculative nature of the issue which it attempts to raise. Leave to insert the sub-paragraph is refused.
The final group of proposed new sub-paragraphs which wIQ objects to being inserted in the particulars to paragraph 23 concerns the blockwork package 24 and comprises:
Kellv Variation 29 DockeL 74. Claim for
raking out joint and re-pointing blockwork.$143.00
Kelly Variation 70 Docket 18 - Claim for making good of penetration $425.00
Kelly Variation 86 Docket 29. claim for repair of blockwork around A.C. grill and electrical conduits. $301.00
.373 v024/21 and 22
Tom Pearson Invoices, claim for handsawing of blockwork. This work is ordinarily associated only with rectification. $556.75
.381 Kelly Variation 104. Claim for building in of Environ units. $986.00
.382 Kelly Variation 107. Claim for rebuilding wall demolished by Environ. $171.00
Tom Pearson Invoices 22977 and 23527. Claim
fc: csnc ie ts i"Lting. Si514.82"
As to those proposed new sub-paragraphs Mr Priestley has sworn:
"With respect to items .371 to .383 (that is, those items concerned trade package 24) I have examined the invoices and dockets in respect of those matters and allocate or describe them as items of rectification work upon the same bases as I have given evidence previously in respect of other trade packages."
However, I consider that in order to raise a genuine issue about items like these, Caboolture Park must establish a foundation for Hr Priestley's expert opinion not merely that
would not have been necessary but for the negligence or the item8,can be described as "rectifjratlon" but that they defective workmanship of WIQ or one of its sub-contractors. The documents to which these proposed new sub-paragraphs + point are at least equally consistent with- the relevant variations having resulted from ad~ustments to the blockwork brought about by changes in design, or insufficient preliminary design or specification particularly in respect of airconditioning, electrical and other services. Leave to insert the proposed new sub-paragraphs .371 to .383 is accordingly refused.
Paragraph 24 This paragraph corresponds with paragraph 14(c)(viii) which embodies Caboolture Park's allegations of negligence in respect of "preliminaries" said to have been included in approved variation claims. By paragraph 24 it is contended that Caboolture Park has no liability to WIQ in respect of any of a series of such items of work and money amnuets identified in particulars subjoined to paragraph 24(a).
It is now sought to add to those particulars some further alleged items of "preliminaries", the first group opposed by WIQ being:
".091 BP Inv. 502563; 503650; 503544; 700031; 502564; 503701; 502893; 700025; 700062; 700084; 700130
Dewatering - $603.24
.l301 B & P Hiring Inv. 503361; 503565; 503512;
503438; 503375
Dewatering - $727.84
.l41 Coates Inv. 00188/1, 002107/1 Dewatering - $259.57
.l42 JB Invoices 24.12.86
Progressive cleaning of works -, $3656.00
.l43 JB Invoices 24.12.86
Temporary electricity - $80
.l44 JB Invoice8 24.12.86
Access road - $152.00
.l71 Progressive cleaning of works $1110.22 Labour attendance on subcontractors $ 448.00
Provision of scaffolding $ 51.20 Dewatering and removal of dirt and mud
Consumables - Ramset items
Progressive cleaning of works
$2500.00Claim for grouting of l ? f t dcscs, b=i;j part of the functions undertaken by head contractor as attendant labour. $432.00
Claim for cost of provision of oxygen and acetylene gas. $334.80
Claim for grouting of lift doors, being a part of the functions undertaken by head contractor as attendant labour. $432.00
Claim for cost of provision of oxygen and acetylene gas. $334.80
.361 VO11/12, V011/13 and V011/16 (part) Invoices Q0415 and Q0284. Claim for cost of grouting lift frame doors, responsibility of builder's own labour."
>
This part of Caboolture Park's case depends on the proper construction of the head contract in the circumstances in which it was let and the application of the contract as so construed to particular items of expenditure. Hr Perry has given an assurance that the insertion of the additional particulars set out above will lead to the calling of very little, if any, additional evidence. Since those additional particulars do not concern work done by any of the sub- contractors which were joined as respondents in these proceedings, I am persuaded, on balance, to allow the insertion of the sub-paragraphs quoted above.
Another new sub-paragraph which Caboolture Park seeks to insert in paragraph 24 is:
"VOl8/04 ITEM 1 Amount of claim $147.00 ~nstallation, removal and folding of tarpaulins
is a cost of protecting and safeguarding the
works, materials and plant."
Although this amendment is related to a joined sub-contractor with which WIQ later settled, I am disposed, having regard to the amount involved and its place in the context of paragraph 24, to allow it.
However, I refuse leave to insert in the particulars to paragraph 24 reference to V0 18/04 Item 4 (part only) in an
amount $550.00 and V0 18/04 Item 5. As well as being referable to variations claimed by a joined sub-contractor, no basis in fact has been established for asserting that the scaffolding components of the two claims are "preliminaries" in the sense that they were expenses necessariiy incurred in performing the works required either by the head contract or Profile's sub-contract, and were not necessitated by variations properly so-called.
'.
For similar reasons, I refuse leave to insert in the particulars to paragraph 24
a reference to V 0 18/05 Item
5 ,
being $ 2 7 6 for the hire of a cherry picker used to provide aluminium flashlng to close a gap in the framing of barrel vault ends.
The next group of "prelimrnaries" which it is sought to add over the objection of WIQ is:
' l . 6 4 1 Pearson Invoice 22213
Provision of builders equipment $ 1 3 7 . 8 0
Pearson Invoices 22662 and 2 2 7 3 5
Provision of builders equipment $ 4 1 8 . 9 5 . 6 4 3 Mitre 1 0
Provision of small tools and consumables$ 6 . 2 5 . 6 4 4 Additional preliminary costs from Kellyps $ 2 4 3 2 1 . 8 9
Pearsons Invoice 2 2 9 7 7 and 2 3 5 2 7
Provision of builders equipment $ 1 5 1 4 . 8 2 "
Tlra,evidence in support of this part of the application
for leave to amend is provlded in part by this passage from
Mr Priestley's affidavit:
"With respect to Items . 5 9 to . 6 4 5 (thab is those items of work contained in package 2 4 , block- layer) the proposed amendments concern items of work of the same or slmilar nature or type to those which I have previously touched upon in evidence. I have examined the invoices concerned and am of the opinion that the items of work referred to thereln meet the description or
definition of prellmlnaries as I have used that
term previously in evidence."
However, an examinat~on of the lnvolces, dockets or other documents relied on does not support Mr Priestley's expression of opinion on thls aspect. Nor does it bear out the description attributed to the ltems in the sub-paragraphs which it is sought to add to the particulars to paragraph 24. The Pearson Invoices 22213, 22662 and 22735 appear on their face not to have been for the "provision of builder's equipmentn but to have been for making saw cuts in concrete or blockwork of specified lengths and depths. I infer that the Mitre 10 invoice was for material used in connection with the making of those saw cuts, but even if I am wrong in drawing that inference, I would decline to allow an amendment for an item in an amount as trivial as $6.25. Leave to insert the proposed new sub-paragraphs .641, .642 and .643 is therefore refused.
Since exhibit B to Mr Priestley's affidavit discloses that no copies of Pearson's Invoices 22977 and 23527 have
been available to Caboolture Park it is in no better position in reapact of V0 24/26 and leave to insert these particulars by s ~ b - ~ a r a ~ r a p h .645, a reference to that claim, is The letter from G.R. Kelly Pty. Ltd. & WIQ to whlch similarly refused.
the proposed new sub-paragraph .644 refers is dated 25 November 1986 and, omitting formal parts, is in the following terms:
"We submit hereunder our claim for extra Preliminaries & Sundries on the above contract. This extra has been incurred because the contract, which was originally due for completion of 9th May, 1986 has increased in size by approximately 35%, resulting in considerable extra costs for scaffolding, hoisting, supervision, and other sundry
i tems . Original Contract Blockwork $572,948.50 Price:- Preliminaries
h Sundries $ 62,051.50 Total $635,000.00 Therefore percentage of preliminaries of contract -
62,051.507 572,948.50 X 100 - 10.83%
Revised Contract Price as
per ratesLess Original Price
Total Variations $224,578.87 Claim for extra for preliminaries and sundries on variations:-
Revised Contract Price as per our
claim No. 11 dated 28/10/86 $859,578.87 Extra to Preliminaries & Sundries on variations as above $ 24,321.89 Revised Contract Price to date
$883,900.76 ,I
That letter makes it clear that the claim was for extra "preliminaries" under Kelly's sub-contract and not for "preliminaries" under the head contract. Although the extra claim by Kelly for "preliminaries" appearss-to have been referable to items such as scaffolding, hoisting and super- vision which Caboolture Park contends are among the kinds of expenses which WIQ was obliged to meet out of the amount
allowed to it by the head contract for "preliminaries", it by no means follows that WIQ's obligation extended to everything which could be characterized as a "preliminary" under a given sub-contract. Significantly no part of the component of $62,051.50 attributable to Kellyls "Preliminaries 6 Sundries" comprised in Kellyls sub-contract price has been alleged either in paragraph 14(c)(viii) or in the earlier sub- paragraphs of the particulars to paragraph 24 to have been a "preliminary* for which WIQ is liable under the head contract.
Leave to insert the proposed new ~lth-n?-agraph .644 is accordingly refused.
The final opposed amendment which it is sought to make
to paragraph 24 involves re-numbering the present sub-paragraph .73 as .74 and expanding the catalogue of variation
orders there referred to so as to comprise VOs 42/06, 42/07, 42/09, 42/10, 42/16, 42/20, 42/21 and 42/22 to be followed by
the words:
"Attendant labour as per attached Schedule Category E Trade Package 42 Summary."
M r Priestley has deposed as to that amendment:
"With respect to item .73, items .74 and .75 have
been deleted and items .73 expanded by',referenceto the trade package 42 summary. In each instance
I am of the opinion that the docket categories
concern items of work which meet the description or definition of preliminaries as I have used that term previously in evidence."
An examination has been made of the claims made in respect of Package 42 which is referable to day labor provlded by Ivan Walker. They have been classified into Types A, B, C, D and E which have been described by Hr Priestley as follows:
"The categories of work have then been grouped into 5 headings, namely:
(a)
Work which should be covered by WIQ preliminaries.
(b) Work of rectification.
(c)
Work which should have been back charged to other subcontractors.
( d ) Reimburseable work, accepted variations to contract.
(e) Claims not understood, illegible or with insufficient backup."
Mr Priestley then expands on his explanation of "Type E" dockets by saying:
"with respect to Item 'E' the dockets in each case are either illegible or meaningless in that they do not refer in any way to the nature of the work concerned, the reason for the work being under- taken or the area of the shopping centre where the work was performed. Annexed hereto and marked with the letter 'Q' is a schedule of the dockets comprised within this category. I am of the opinion that work under this category, being site labour doing work which I assume to have been of aristance to other trade packages, amounts to attundant labour and therefore meets the description of or deflnltlon of preliminaries."
The documents show that V0 42/06 was approved by Mr McAllister and, after requests for further infgrmation, by Mr Poppleston on behalf of Caboolture Park. The description of the Type E documents gathered under VOs 42/07 and 42/10 does not suggest that they were unintelligible. Those descriptions
are "fixing timber to wall", "ramp at back wall - Grid
11-15", "form base to garden bay", "work in auto bay as list" and fire-rated columns". A similar comment applies to three out of four of the Type E items gathered under V0 42/16 and all of the five Type E items under VOs 42/20 and 42/21. Annexure C to Mr Priestleyls affidavit does not suggest that there were any Type E claims under V0 42/22.
In my view, to demonstrate that a genuine issue would be raised by this particular, Caboolture Park must establish a foundation for the assertion that each of these claims was for "attendant labour" in the sense which it claims justifies its characterization as a "preliminary" under the head contract. It must then indicate a basis on which the Court could find that item to have been incurred in the execution of the works as originally specified in the head contract and not in some variation. I do not believe that those requirements have been satisfied by the analyses in Annexures C, D and F to Mr Priestley's affidavit and his expressions of opinion on them. Leave to insert the proposed new sub- paragraph .74 is therefore refused.
Paragragll 25 By this paragraph Caboolture Park alleges that:
"Further or alternatively, in the case of those subcontracts and items of work listed below, the Cross-Applicant has claimed against *e CKOSS- Respondent sums in excess of the fair and reasonable cost of the work".
It is first sought to insert in the particulars to that paragraph, the following new sub-paragraph:
".011 Item l - spoon drains 342.5 m @ $2.50 -
$856.25Rate for steel trowel finish to spoon drains excessive - $2.50 assessed."
I consider that this proposed amendment raises a genuine
issue within a very narrow compass. I grant leave to insert
the new sub-paragraph.Caboolture Park next seeks to insert in the particulars to paragraph 25 this sub-paragraph:
".OS00 V06/10, 6/24 and 6/53 and 6/54
Site allowance claim
Total claimed V06/10 and V06,24 $29,486.68 Credit V06/54 (11,645.05) Site Allowance extra as claimed V06/10, 6/24 and 6/54 $17,841.63 Schedule of rates work measured at rates including 0.875 cent (should be 70 cents) increased site allowance V06/53 $314,586.91 Schedule of rates work measured at original contract rates (298,629.07) Site Allowance extra as claimed V06/53 $15,958.84 : Total claimed V06/10 V06/24 V06/53 and V06/54 $33,800.47 Correst site allowance at $0.70 not $0.875 is $15,958.84 X .70
.875 $12,767.10
,
Overclaim -$21,033.37"
M r Priestley has deposed as to a related amendment that
"[wlith respect to .OS001 I am of the opinion that the wrong rate has been charged ..." However, the documentary evidence
indicates that the increased site allowance was paid to Eagle
Concreting pursuant to a variation approved by or on behalf of Caboolture Park. Since Eagle was a joined sub-contractor with which WIQ settled in August 1988 in reliance on the pleadings as they then stood, I consider that this amendment should not now be allowed. If Caboolture Park wishes to persevere in the contention that Eagle has been overpaid as a result of a mistake, it may do so in separate proceedings in which Eagle can be joined. For the same reason, leave to
ineert sub-paragraph .05001 on p.68 n f g x h i b i t to H & Priestley's affidavit is refused.
~t is next sought to insert in the particulars to paragraph 25 the following sub-paragraph:
".054 V06/33 and 6/45
Quantities for Latham joint total $31527.82
not $37644.63 as charged excess cost $4013.73.$6116.81 less $2103.08 allowance for waste.
Latham joint 272.856~1 $105.00 $28649.88
Extra for
crossover 1 no $367.50 $ 367.50
Extra for "Tee" 3 no $315.00 $ 945.00
Extra for 90' bend 3 no $262.50 $ 787.50 - Extra freight,
insurance,
handling 272.856~1 $ 2.85 $ 777.64 Allowance for waste 13 No cut endewhich could
waste 3.lm at worst out of a 6m length.
Average waste however taken at 50% of this say
1.5m wasted per cut end = 19.5m at $105.00 +
$2103.008. This is considered adequate as any
off cuts from 6m lengths could be reused."
This proposed amendment appears to raise a genuine issue within a relatively narrow compass. I grant leave to make it.
Also related to the proposed amendments to insert sub-paragraphs .OS00 and .OS001 in respect of the increased site allowance is proposed new paragraph .OS931 in these terms:
"RMH site allowance claims to be reduced
corresponding to hours spent on claims notadmitted - $9147.60 Total claimed."
of that ame-?merit, Mr Priestley has deposed "Items .05001 and
.OS931 concern site allowance claims .. w4.th respect to ,05931 the claim relates to variation claims in respect of which Caboolture Park contests liability". If Caboolture Park succeeds whole or partly in avoiding liability on those claims its liability in respect of the site allowance paid or payable to RMH will correspondingly be reduced. However, no basis has been demonstrated for an independent attack on the site allowance. Leave to insert the proposed new sub- paragraph .05931 is therefore refused.
T R t w opposed insertions in the particulars to
paragraph 25 are related to variations claimed by the roofing
contractor, Profile. The first is:
"V0 18/04 AMOUNT CLAINED RESPONSE: fi4.50
Item 1 6 hrs X $24.50 Number of hours
claimed is excessive:
1 hr only allowed"
his proposed amendment raises a narrow issue on which little
evidence can be given. Leave to make it is granted. I also grant leave to insert a claim that V0 18/04 Item 11 for $3,840.50 should be reduced to $1,725, as that turns essentially on a question of measurement which can quickly be resolved. However, leave to insert references to V0 18/04 Items 12 and 13 is refused. The attack which it is desired to make on Item 12 is essentially speculative, as appears from the terms of the proposed amendment and the evidence in support of the application to make it. The attack on Item 13 involves an amount of only about $102 and could reasonably necessitate the calling of evidence from one and possibly two joined subcontractors with which WIQ settled many months ago.
~t is also sought to insert in the particulars to paragraph 25 references to three items of work done as variations by Master Carpets, one of the sub-contractors to which part of the floor-covering Package 20 was entrusted. Master Carpets was not a joined sub-contractor. The references to V0 20/18 Items 1, 2 and 3 seem to involve a
pure question of measurement and application of a schedule of rates. Wave to insert the relevant sub-paragraphs in the
particular'-to paragraph 25 is allowed.
For similar reasons, leave is granted to insert sub- paragraphs claiming that the cost of three 'items of work performed as variations to Package 21 by Sunstate Shop Fitters was excessive. The sub-paragraphs in question refer to V0 21 Items, 1 5 and 8.
.
Finally, it is deslred to insert In the particulars to paragraph 25 a sub-paragraph invoking V0 29/04. It 1s pleaded that a shutter door supplied by an outside contractor could have been provided more cheaply by another named sub- contractor otherwise involved in the Caboolture Park project. That amendment raises a narrow issue which does not concern a joined sub-contractor. Leave to make it is granted.
Paragraph 27 The only amendment to this paragraph which is opposed is related to V0 20/18 Item 3 which is in these terms:
"In the alternative to the matters particularised under paragraph 38, if (as claimed) the carpet for the public lift was supplied then a credit should be given for the vinyl tiles for the lift required by sub-contract Appendix B and D (L & B spec. p. 210) for which no credit has been given and which were not supplied. Reasonable credit: $270.00 as per HDC Pty Ltd purchase order 8802 to Master Carpets.
That proposed amendment raises an apparently genuine issue as to a claim for a credit, albeit for a small amount not allowed. I grant leave to make the amendment which is related
to the m n d m e n t allowed above to the particulars
to
'_
paragraph 25 in respect of the same item of work.
Paragraph 30 - It is sought to add to this paragraph, although lt more properly belongs in the particulars to paragraph 33, a reference to V0 22/04 by way of an allegation that WIQ failed to "co-ordinate size of door frames". This t r ~ v i a l claim for $17.31 has also been inserted without opposition, as sub- paragraphs .362 and .363 of the particulars to paragraph 23. I refuse leave to rely on it in the alternative in paragraph 33.
Paragraph 35
By this paragraph Caboolture Park has pleaded that WIQ has claimed as the cost of variations work done by a particular sub-contractor which Caboolture Park concedes was not within the scope of the sub-contract of the sub- contractor who actually performed the work. However, the paragraph goes on to allege that the work was within the scope of the sub-contract of another sub-contractor who should have been "back-charged" with the cost of doing the work. Particulars are provided in paragraph 35(e), the headings to which indicate the nature of the allegation made in respect of each item:
"Variation Subcontractor Subcontractor Amount"
Order No Performing Work to be back- charged
It is first sought to insert in those particulars Pty Ltd, which it is contended should have been backcharged
referena8,to items of work performed by Etgle Concrete (Qld)
to one or other of the earthworks sub-contractor Lobegeier, the blockwork sub-contractor Kelly, the reinforcing fixer RHH, the concrete pumping sub-contractor Meales, or the post- tensioning sub-contractor VSL. Similar particulars are then sought to be added in respect of work done by Lobegeier which, it is alleged, should have been "backcharged* to RMH and work done by "associated works" suppliers and sub- contractors whlch lt is alleged should have been variously "backcharged" to Lobegeler, RMH, Kelly, Meales and Eagle. Finally, in thls section of the proposed amendment it is sought to allege that work performed by the steel erector, Gay Constructions, should have been "backcharged" to the pre- cast subcontractor, Nucast.
All of these variations were approved on behalf of Caboolture Park after a process of scrutiny which, the documents reveal, involved consideration of whether a "backcharge" should have been raised against a particular sub-contractor. The evidence of M r Priestley in support of this part of the application for leave to amend is as follows:
"Paragraph 35
The proposed amendments concern both additional unapproved claims and claims which have been approved under the trade package or in respect of the subcontractor who actually performed the work. I have examined both the approved and unapproved claims which are set out in the proposed pleading and am of the opinion that the work referred to therein is of the nature or type required to be performed by the
wal...work in fact performed by the subcontractor subcontractor referred to in each instance but who made or makes each respective claim."
There is no direct evidence that Mr Poppleston, and M r McAlliSter, employees of Hersfield Development Corporation who approved the relevant variations on behalf of Caboolture
Park and Lynch & Blow Pty Ltd, which, as Caboolture Park's
architect, certified the variations, were all mistaken or misled. I consider that to re-open at this remove of time
these variations in the way the proposed amendments seek to do would be to impose a burden on WIQ which could not be compensated by an order for costs. I am reinforced in this conclusion by the consideration that WIQ has settled in August last year with Eagle, one of the sub-contractors involved in some of the relevant variations. For these reasons, leave to insert in the particulars to paragraph 35(e) the material which appears at pp 81 to 87 of Exhibit A to Mr Priestley's affidavit is refused.
On the other hand, I consider it reasonable CO allow Caboolture Park to advance this contention in respect of the opposed amendments collected between pp 87 and 96 of Exhibit
A to Mr Priestley's affidavit. I have reached that conclusion
despite the fact that some minor parts of those amendments are related to work which it is alleged should have been backcharged to joined sub-contractors. I therefore grant leave to make the opposed amendments to which I have just referred on condition that all money amounts which have been left blank are filled up.
Paragra* 37 '_ Caboolture Park seeks leave to insert this new paragraph which, after setting out the text of cll.
4.03.03,
5.04 and 10.27.03 of the head contract, concludes with these
sub-paragraphs:"(b) The cross applicant has claimed against the cross respondent, pursuant to paragraph 30 of the Amended Defence and Crossclaim, certain sums allegedly being the value of work carried out by it, by its sub-
contractors, and due and owing to it by the cross respondent pursuant to clauses 4.03.03 and 10.27.03;
(C) With respect to those items of work claimed by the cross applicant, and as further particularised in annexure 'C' to the Amended Defence and Crossclaim, the cross respondent admits that the Architect issued instructions to the builder with respect to those variation orders set out in annexure 'A' hereto and noted under the column marked 'Architects Instruction or Drawing Revision Issued - yes';
(d) The cross respondent denies that the architect issued instructions, within the terms of clauses 4.03.03 and 5.04, to the builder with respect to thonc v a r i r t i c n orders set out in annexure 'A' hereto, other than those variation orders noted under the column marked 'Architects Instruction or Drawing Revision Issued - yest; (e) In the premises the cross respondent denies liability, under or by virtue of clauses 4.03.03 and 10.27.03, in respect of those variation orders set out in annexure 'A1 hereto other than those variation orders noted under the column marked 'Architects Instruction or Drawing Revision Issued -
yes' ; "
In support of this part of the application for leave to amend, Mr Priestley has deposed that:
"under my supervision Mr Paul Robinson prepared a schedule in respect of all of the trade packages, uhich details those items of work where an ar&itectls instruction or drawing revision can be wentified as the reason for the work being undertaken. Annexed hereto and marked with the letter 'G' is a copy of that schedule. As can be seen from the schedule there are three categories, namely: >
(a) Architect's instruction or drawingjevision;
(b)
No Architect's instruction or drawing revision;
(C) Position unclear.
I have been informed by Mr Robinson and verily believe that he has examlned all of the site instructions given by the architect and the drawing revisions for the purpose of ascertaining which of the items of work claimed by the cross applicant were undertaken pursuant to either a slte instruction and/or drawing revision.
With respect to category C I am informed by Mr Robinson and verily believe that the category concerns those items of work where neither a positive nor negative determination can be clearly made. I am further informed by Mr Robinson and verlly believe that the circumstances givrng rise to category C include, but are not limited to the following examples:
(a) Jack hammer/compressor hire. This equipment may be used fnr e variety =f ' - - I - - LCLDAD end whilst it may be possible to ascertain whether a site instruction or drawing revision required the performance of work which would have necessitated the use of such equipment, it is frequently impossible to allpcate any one claim in respect of such equipment to a site instruction or drawing revision; (b) Some items of work may have been undertaken at the express request of either Coles or as a result of leasing agreements for the speciality shops but were not the subject of an architect's instruction or a drawing revision; (c) In many instances the information supplied on the invoices is insufficient to enable either a positive or negative determination. Thia is particularly so where associated work claims are made and which comprise
hire of equipment or supply of materials simply a number of invoices concerning the without any indication of what the work was
' undertaken for.
I an further informed by Mr Robinson and verily believe that the schedule includes brief comments in respect of the items of work contained therein. Mr Robinson has informed me and I verily believ-that the comments simply categorised the nature of the various invoices insofar as those comments concern the issue of architects instruction or drawlng revisions."
Annexure G to Mr Priestleyls affidavit is a document of some thirty-six pages in which varration claims by WIQ are treated in numerical order by trade package. It is then indicated in respect of each Item whether or not an architect's instruction or drawing revision was issued or whether the position is regarded by Mr Robertson as unclear. In the next column what is called a "brief description" of the item is given, of which the following are typical; "associated work", "preliminaries", "schedule of rates", "day work", "backcharge", "quotation". In another column headed
Ilrrr---iL -I# a r e observations of a more tendentious kind
apparently indicating the substantive reason why Caboolture Park contends that it is not liable for the item in question, or why the position in respect of it is unclear. Assertions of the latter kind are usually formulated as "insufficient details" or "insufficient detail for identification".
It is proposed that Annexure G to Mr Priestley's
affidavit should become the Schedule A referred to in the draft new paragraph 38. Mr Perry of Counsel for Caboolture Park who argued this part, amongst others, of its application
for lea- to amend, contended that it was made in response to an invita&on implicitly held out by the Full Court on 8 February 1989 when it refused leave to appeal from my refusal of an earlier application for leave to insert an earlier version of a new paragraph 37. As pressed b6fore the Full Court, that version was in these terms:
"37. Save as aforesaid and excepting those items
of work eypressly admitted in the Scott Schedule
delivered herein by the cross-respondent, the
cross-respondent:-
(a) Denies that the cost of the items of work claimed in paragraph 30 of the Amended Defence and Cross Claim was a provisional sum, or an adjustment thereto, to which paragraph 4.03.03 applied; (b) Denies that the items of work, the cost of which is clalmed in paragraph 30 (of the statement of cross-claim) were undertaken pursuant to the instruction of the Architect as required by Clause 4.03.03;"
Of the application to insert sub-paragraph b U thac version, Sheppard J., with whom Gummow J. agreed, observed at p.7 of the reasons of the Full Court:
"A similar difficulty, I think, arises in relation to sub-para. 37(b) which denies that the items of work were undertaken pursuant to the instruction of the architect. A background factor which is not irrelevant is that it seems unlikely, on what we have been told, that the architect is intended to be called as a witness in the proceedings. It is unnecessary to go into the reasons for this, but one might have expected that if there were an issue about instructions given by an architect, the best person to ask about whether they were given or not would be the architect himself.
~t is in relation to what is pleaded in sub-para. 37(b) that a trial judge concerned to control long running litigation, and to try to bring it,
conrietently with the due administration of j-tice, to a conclusion, would be concerned to sea that only issues which were real or genuine issuer would be raised. In the course of the argument which has ensued, it has been suggested from the bench that the problem could be overcome if affidavits or other material were put before the Court which would rndicate the particular items in respect of which it is said that instructions were either not given or in relation to which the cross-respondent is unable to say whether they were given or not. This would, one would hope, cut down the area of dispute. In the absence of any attempt by the cross-respondent to do something of this kind, particularly bearing in mind the stage of the proceedings at which the application for amendment was made, sub-paca. 37(b) seems to me to suffer from the same sort of problem that surrounds sub-para. 37(a)."
His Honour's judgment then concluded with this paragraph, at
nIn other words, notwithstanding the problems that there may be about further amendments to the pleadings in this litigation, if there is a properly formulated application to amend which plainly, either in its own terms or with the aid of particulars, indicates precisely what it is that the cross-respondent wishes to rely upon, and which is supported by some evidence or other material which discloses that the issues sought to be raised are genuine and real, it may well be appropriate for an amendment to be aiiowed. T do not wish to say anything, however, which would bind the discretion of the judge. The matter is for him if and when such an application is made to him."
It seems that Caboolture Park desires to rely on the facts
Sought to be pleaded by the proposed new paragraph 37 in
this, its fourth, formulation in support of a contention that
a written instruction from the Architect was a condition
precedent to recovery by WIQ of a provisional sum under cl.
4.03.03 of the head contract valued in accordance with cl.
10.27.03. If that is so, the denial of fulfilment of the
condition precedent should have been pleaded specifically as
require&* 0.11 r.6 of the Federal Court Rules. See also Abbs v Matkran i CO (1898) 104 LTJ 268.
However, a more fundamental objection to the contention 3 C
which I presume Caboolture Park desires to base on the proposed new paragraph 37, is that it appears to be based on a misapprehension of the concepts of "provisional sums" and "variations" as used in the head contract. In my tentative view, the "necessary instructions" referred to in cl. 4.03.03 are only such instructions as are requared to indicate that the work to which a provisional sum is referable is to be carried out by the builder and not by a nominated sub- contractor or a nominated supplier to whom cl 4.03.01 or cl. 4.03.02 respectively applies. Clause 4.03.03 I consider, as presently advised, does not require a separately identifiable instruction for each item of work comprised in or component of a provisional sum referable to an element of the works required by the plans and specifications detailed in cl. 1.06.03.
The draftsman of the amended reply and answer seems to
have shared my view when formulating earlier paragraphs of C
the pleading. Thus, some items in the proposed annexure to paragraph 38 are alleged in parqgra~ph 20 to have been within the scope of works required by particular sub-contracts, all of which on the evidence to date were let with the approval of Caboolture Park and the Architect. Other items in the schedule are said by paragraph 21 to have been left incomplete by the relevant sub-contractor. In that respect
admission d@ liability in paragraph 22. the propq.ad new paragraph 38 is inconsistent with the Yet other items in the schedule to the draft paragraph 38 are said by paragraph 23 to have involved re-ctlfication of previously defective work or by paragraph 24 to have been "preliminaries" within the meanlng of the head contract. Other items are alleged by paragraph 25 to have been the subject of claims in excess of the fair and reasonable value of the work involved. In respect of them, the proposed new paragraph 38 departs from the admission of liability in paragraph 26(b). Even more curiously, others, like V0 34/02, are to be found in the particulars to paragraph 27 in which it is alleged that insufficient credit has been allowed to Caboolture Park for deleted or incomplete work. Again some items in annexure "G" to klr Priestley's affidavit are listed in the particulars to paragraph 33 as being in consequence of a failure by wIQ properly to co-ordinate the execution of the works. Finally, as to others like V0 18/04 Items 6 and 7, it has been pleaded in paragraph 35 that the cost of work done by one sub-contractor should have been "backcharged" to another. As to them, the proposed new paragraph 37 departs also from the admission of liability in pargraph 35(c)(i).
It is also significant that some of the claims as to which Cabooltura Park now wishes to deny the existence of a written instruction said to be a condition precedent to recovery by WIQ of the value of the work were the subject of claims independently approved in writing on behalf of
~ a b o o l t u b , , ~ a r k
- .
by either or both of Mr Poppleston and Mr
v*
McAllistar. I instance by way of example only VOs 6/47 and
49, 9/12 and 12/14.
'C
Whether or not the tentative view which I have indicated about the interpretation of the head contract be correct, I consider that an appropriate question of law as to what is the proper construction of the relevant provisions of the head contract should be formulated and resolved pursuant to 0.29 r.2 before the Court is required to embark on a monumental factual investigation, on the strength of an analysis, by persons with no direct knowledge of what happened in the course of construction of literally hundreds of claims for revisions of provisional sums under cl. 4.03.03 and for variations under cl 6.10. The complexity of that task would be compounded if, as is highly likely, WIQ were to plead to the proposed new paragraph 37 that Caboolture Park is estopped from denying the existence of written instructions for particular adjustments of provisional sums or variations catalogued in the prcposed Schedule A.
!?or the reasons indicated a b w e leave to insert the new
. paragraph 37 is reft*sed.
- .
Paragraph 38
his is a new paragraph whlch Caboolture Park seeks leave to insert. It reads:
"38. The Cross-Respondent denies that the following items of work, for which payment is claimed by the Cross-Claimant, have been p a f ormed : -.
V020/18, Item 1 Amount clalmed $1,410.82 In respect of Item 1, being the claim of $1,410.82 for 'vinyl to service lifts and PPU and Butchers,' if that claimed for work includes a claim in respect of 'supply and installqtion 75 X 5mm chamfered edge to parcel pick up corridor, against ceramic tiles' (refer letter Master Carpets to White Industries Pty Ltd dated 4 November, 1986, WQ 0025.248), then the Cross-respondent denies that such supply and installation was done."
It is also desired to insert in the particulars to this new paragraph a reference to V0 20/18 Item 3. It will be recalled that an alternative allegation copcerning it was proposed for insertion in the particulars to paragraph 25. I have indicated that leave will be granted to insert that sub-paragraph which was in these terms:
"V0 20/18, Item 3 Claim Response: In the alternative to the matters particularised under paragraph 38, if this carpet for the public lift was supplied (which is denied) then the amount claimed for it was
cr===sf v= .- u~~roaronabie - - insofar as it exceeds
$138.06 calculated as follows:
The denial that the work detailed in V0 20/18 Item 1 was carried out is supported by an assertion that:
*fir ~ a c i r har inspected the edge to the parcel pick-up corridor. There is no chamfered edge to the parcel pick-up corridor against the ceramic tiles. Mr Lacis saw nothing that suggested to him in the length of his building industry experience, that the work along the edge to the parcel pick-up corridor against the ceramic tiles had been changed since the date of original construction. For example, he did not see a change in the type of finish which suggested that
work that wan fresh work. On the basis of his
q o r i s n c e in the building industry, Mr Lacis S- that a chamfered edge in a corridor is no8my always built and installed as a permanent fixture and is designed so as to be durable.'
As to Item 3, it is simply asserted that carpet has been installed in the public passenger lfift. That is consistent with the request for variation to budget issued by WIQ and a supporting letter dated 4 November 1986 from Master Carpet Company (Qld) Pty. Ltd.
Because the two issues raised by the proposed new paragraph 38 have elements in common wlth amendments already allowed to paragraphs 25 and 27, and because the factual range of those issues is small, I grant leave to insert paragraph 38.
I direct that Caboolture Park supply to WIQ and bring
into court a consolidated reply and answer to w1Qfs cross-claim incorporating the unopposed amendments and those which
I have indicated in these reasons should be allewed. I chsll
then make a formal order granting Caboolture Park leave further to amend its reply and answer to conform with k h -
consolidated document. The order will stipulate that .
Caboolture Park pay WIQfs costs of and incidental to the m o t i m on notice dated 20 April 1g89 and any costs thrown awav as a result of the further amendments.
I certify that this and the preceding fifty-three (53) pages are a true c o ~ v of the Reasons for Judament of
hi;- on our Mr Justice Ryan.
Associate:
/
Dated: W
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