Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd

No judgment structure available for this case.

h

R T R E G I S T R Y No.61 07 2295881 0 7 , 0 2 , 8 9 1 0 : 4 7 P . 0 2

ZN THE FEDERAL COURT OF AUSTRALIA)

1

3VtGNSLAND DISTRICT REGISTRY ) N o . G196 of 1986
1
OBNERAL DIVISION 1

BSTOOEEN : CABOOLTURE PARK SHOPPING
CENTRF PTY. LTD.
(Applicant)

ANp: WHITE INDUSTRIES (PLD.)
P T Y . - t ' T D .
(Respondent)
AND BETWEEN:

WHITE INDUSTRIES ( Q L D . 1
PTY. LTD.
(First Cross-Claimant)
CABOOLTURE PARR SHOPPING
CENTRE PTY. LTD.
(First Cross-Respondent)

CORRIGENDUM

Amendment to p. 53 O f his Honour Hr Justice Ryan's

Reasons for Judgment delivered 28 October 1968.

In the last line after the words "of the work involved"

(Associate to Mr Sustice Ryan)

insert the words "has not been pleaded".

-- . -~e-a.43-%%

R. l'. TARANTO

JUDGMENT No. ........ ........ . 6481 -.- g&-
IN THE FEDERAL COURT OF AUSTRALIA)
1

QUEENSLAND DISTRICT REGISTRY ) No. G198 of 1986
1
GENERAL DIVISION )

BETWEEN: CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.
(Applicant)
AND : WHITE INDUSTRIES (QLD.)
- PTY. LTD.
(Respondent)
AND BETWEEN: WHITE INDUSTRIES (QLD.1

PTY. LTD.

(First Cross-Claimant)

AND : CABOOLTURE PARK SHOPPING
- CENTRE PTY. LTD.
(First Cross-Respondent)

Coram: Ryan J.

Date: 28 October 1988
-

Place: Brisbane
-
REASONS FOR JUDGMENT ON MOTION ON NOTICE

DATED 17 OCTOBER 1988 FOR LEAVE FURTHER TO
ANEND REPLY AND ANSWER TO CROSS-CLAIM

BY motion on otice dated 17 October 1988 the

applicant, Caboolture Park Shopping Centre Pty. Ltd.
("Caboolture Park"), has sought leave further to amend its
amended reply and answer to the cross-claim filed on behalf
of the first-named respondent, White Industries (Qld.) Pty.

Ltd. ( "WIQ" 1 .

In reasons for judgment published on 1 July 1988 in

respect of an earlier application by Caboolture Park for
leave to amend the same pleading, I described in a summary
way the present state of the pleadings relevant to the
present application.

Caboolture Park first seeks to insert a new

sub-paragraph in paragraph 6 of its reply to WIQ's amended

defence. Paragraph 6 commences with the words:-
"AS to the facts alleged in paragraph 20 of the
amended Defence, the Applicant:-"

The proposed new sub-paragraph (d) is in these terms:-

"(d)

Further says that - It was an implied term would administer the

of

the said agreement that the cross-applicant
said contract so as to

ensure that the works were executed and completed for a sum as close as possible to the target sum both as to total and as to each sum nominated in
15.03 of the said agreement for the respective

trade packages. The said term is to be implied by
reason of:-
(a) operation of law;

(b)

the precontractual negotiations between the parties alleged in paragraphs 7 and 8 of the amended Statement of Claim;

(c) the properly construed."

terms

of

the

said

agreement

when

Leave is also sought to amend the body of sub-paragraph

14(c) and sub-sub-paragraphs (i)(d), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (X), (xi), (xii), (xiii), (xiv)

and (xv) thereof to allege that the conduct described in
those sub-sub-paragraphs was further or alternatively "in

breach of the implied term alleged in paragraph 6(d) hereof".

That amendment was said by Mr Perry of Counsel for

.D .

Caboolture Park to “reflect, in terms, the state of the
evidence, and particularly the evidence given by Mr Herscu

recently“. That must be a reference to evidence given by

Mr

Herscu about what are described in sub-sub-paragraph (b)

of

the

proposed

new

sub-paragraph

6(d)

as

“precontractual

negotiations”.

However,

there

are

strict

limits

on

the

extent to which prior negotiations may be used as

a basis for

the implication of

a

term said to be necessary to give

business efficacy to

a contract. Those limits were succinctly

indicated by Nason

J.

(as he then was) in the following

passage from Codelfa Construction Pty.

Ltd. v State Rail

Authority of New South Wales (1982) 149

C.L.R. 337 at 352:-

“The true rule is that evidence of surrounding
circumstances is admissible to assist in the

interpretation of the contract if the language is

ambiguous or susceptible of more than one
meaning. But it is not admissible to contradict
the language of the contract when it has a plain
meaning. Generally speaking facts existing when
the contract was made will not be receivable as
part of the surrounding circumstances as an aid
to construction, unless they were known to both
parties, although, as we have seen, if the facts
are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect
to the evidence of prior negotiations. Obviously
the prior negotiations will tend to establish
objective background facts which were known to

both parties and the subject matter of the
contract. To the extent to which they have this

tendency they are admissible. But in so far as
they consist of statements and actions of the

parties which are reflective of their actual

intentions and expectations they are not

receivable. The point is that such statements and
actions reveal the terms of the contract which

the parties intended or hoped to make. They are

superseded by, and merged in, the contract
itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the

parties b ing admissible of a d in
construction, though admissible in an action for
rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual
intentions, aspirations or expectations of the parties before or at the time of the contract,

except in so far as they are expressed in the

contract, but to the objective framework of facts
within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual
intentions of the parties and for the very good
reason that an investigation of those matters
would not only be time consuming but it would
also be unrewarding as it would tend to give too
much weight to these factors at the expense of
the actual language of the written contract."

I have detected nothing in the evidence of Mr Herscu or

the two other witnesses who participated on behalf of
Caboolture Park in the pre-contractual negotiations which
tends to establish an objective background or framework to
support the implication of the term alleged in the proposed
new pargraph 6(d). Nor has anything been indicated to support

the allegation that the same term is implied by operation of
law, or arises by necessary implication from the express

terms of the contract between Caboolture Park and W I Q . It is

clear that a proposed amendment will not be allowed i f it

raises an obviously futile allegation; see e.g. Horton v

Jones (No 2) (1939) 39 S.R. (N.S.W.) 305 per Jordan C.J. at
309-310.

Accordingly, I refuse the application for leave to

insert the proposed new paragraph 6(d) in Caboolture Park's

.	.
t	.

. . - 5 -

reply to WIQ's defence and to make the consequential
amendments described above to the answer to the cross-claim.
AS it presently stands, paragraph 14(c) of the amended

answer to WIQ's cross-claim is in these terms:-
"As to the facts alleged in paragraphs 25,
30, 31, 32, 33, 34 and 36 of the Cross-Claim, the
Cross-Respondent:-
...
(c) denies that the amount claimed by the

Cross-Applicant in paragraph 30 of the

Cross-Claim is the value of the work
carried out by the Cross-Applicant by its
Subcontractors and says that that amount

was increased and exacerbated by the

negligence of the Cross-Applicant in

relation to the administration of the said

Agreement, and breach he the by
Cross-Applicant of its implied contractual

duty and duty of care under the said

Agreement to administer the same in a
reasonably careful and efficient manner and
in accordance with the ordinary practices
of reasonable and prudent contractors, the

particulars best which t e of
Cross-Respondent is able to provide until after discovery herein being as follows:-"

Paragraph 30 of WIQ's cross-claim is in these terms:-

"In addition to the amount mentioned in paragraph

25 hereof, pursuant to Clauses 4.03.03 and

10.27.03
of the said agreement there became due Cross-Claimant $4,450,310.19 as the value of work

and owing by the Cross-Respondent the o

carried out by the Cross-Claimant by its
subcontractors. Particulars of the calculation

of the said amount are contained in annexure 'C'
hereto."

Annexure C as amended contains a list of amounts

allegedly due in respect of work done by various

sub-contractors. sub-heading Under the "Original

Sub-Contract Lettings" a total amount of $1,092,484.27 is

. .

'

a .

claimed to be due in respect of work done by some twelve
specified sub-contractors. In Part B of the same schedule under the heading "Additional Works to Packages" are collected lists of variation order numbers divided into the thirty-one trade packages to which they are referable. A money amount is ascribed to each variation order and the total of those amounts is $3,452,825.92. In Part C of the

same schedule under the sub-heading "Eagle Concreting" it is
recited that "Eagle Concreting has submitted a claim for
approximately $30,000".
Subjoined to paragraph 14(c) of Caboolture Park's

amended answer as it presently stands are particulars of alleged negligent administration by WIQ of the head contract, including:-
"(vi) The Cross-Applicant failed to co-ordinate the performance of the sub contract 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

Subcontractors have been incurred which would n t
otherwise have been incurred:-
(a) variation claim No. 42/26 only so far as it relates to the day labour component.
( h ) variation claim No. 42/20 only so far
as it relates to the day labour component.

(c) variation claim No. 42/21 only so far
as it relates to making good of certain
works.
(d) variation claim No. 45/114.
(e) variation claim NO. 45/223.
(f) variation claim No. 15/11.
(g) variation claim NO. 35/42.

( h ) variation claim No. 18/04.

(i) Item NO. 4 of variation claim No.
36/05.

( j ) variation claim No. 21/11.

(k) variation claim No. 06/18.
(1) variation claim No. 10/01.
(m) variation claim No. 11/05.
(n) variation claim No. 15/01.
( 0 ) variation claim No 15/06.
(p) variation claim No 16/01.

(9) variation claim No. 24/10."

By the present application, it is sought to substitute

for that list of variation claims, which would not otherwise
have been incurred, the following list:-

"(a) variation claim No. 42/26 only so far as it

relates to the day labour component.
(b) variation claim No. 45/114. (c) variation claim No. 45/223.

,

- 8 -

* I

. .

(d) variation claim No. 18/04. (e) variation claim No. 06/18. (f) variation claim No. 10/01. ( g ) variation claim No. 11/05. (h) variation claim No. 15/01.
(i) variation claim NO. 15/06.
( j ) variation claim No. 16/01.
(k) variation claim No. 24/10.
(1) variation claim V011/01 additional
construction joint requested to suit WIQ
programming only
(m) variation claim v011/02 additional construction joint requested to suit WIQ programming only
(n) variation claim V011/03 additional construction joint requested to suit WIQ programming only
( 0 ) variation claim V011/04 overtime claim for Good Friday work. No approved acceleration claim, therefore sequencing is responsibility of WIQ refer Lynch & Blow specification p. 2 cl. 3

(p) variation claim V011/07 necessity for
isolation joint arose because non load bearing
walls were built before slabs were poured
(r) variation claim V012/03 double handling due
to commencement of construction before relevant
information available

variation claim V012/05 double handling due information available
( S )
to commencement of construction before relevant

(t) variation claim V012/06 amended work
sequence not at instruction of C.P.S.C., work
sequence responsibility of WIQ"
It will be seen that this amendment deletes the
previous references to variation claims numbered 42/20,

42/21, 15/11, 35/42, 36/05, 21/11 and adds, with a rather
terse and uninformative statement of the reason why it would
not otherwise have been incurred, each of the variation
claims identified in sub-sub-paragraphs (1) to (t) inclusive.
This amendment was opposed by Mr Fraser of Counsel for

WIQ on the ground, first, that it introduces additional
references to variation orders which have been approved by

Caboolture Park's architect under the head contract, and

which are not listed in the particulars to paragraph 30 of

WIQ's cross-claim. Thus it is not open to say of those

variation orders, as is done in the body of paragraph 14(c)
of the present amended answer, that negligent administration
of the head contract in relation to them "increased and
exacerbated" the amount claimed by WIQ in paragraph 30 of its
cross-claim because that amount is made up exclusively of
unapproved variation orders. However, the same criticism can
be made of the existing particulars to paragraph 14(c)(vi) of
the reply and answer, only seven out of seventeen of which
are related to unapproved variation orders listed in the

particulars to paragraph 30 of the cross-claim.

It was next contended on behalf of WIQ that liability

for the variation orders listed in the proposed new
particulars to paragraph 14(c)(vi) of the amended reply and
answer has been admitted in paragraph 14(a) of that pleading
which is in these terms:-

"14. As to the facts alleged in paragraphs 25, 30,

31, 32, 33, 34 and 36 of the Cross-Claim, the
Cross-Respondent:-

. .

'

I

(a) admits and alleges that moneys became
due and payable by it to the Cross-Claimant,
the extent of the indebtedness which the
Cross-Respondent admits and alleges being as
particularized in paragraph 15 of the Further

and Better particulars to the Amended

Statement of Claim delivered by the
Cross-Respondent to the Cross-Applicant;"
I have referred in some detail in reasons for judgment

given herein on 9 September 1988 to the history of the
provision of particulars of paragraph 15 of the amended

statement of claim. It is sufficient for present purposes to

say that hey admit hat Caboolture Park authorized

variations to a net value of $2,475,658.93. Consequently,

paragraph 14(a) of Caboolture Park's amended reply and answer

is an admission that it is indebted to WIQ in that sum in

respect of the specified approved variations. However, I

consider it at least arguable that a party can admit

indebtedness under a contract, and still counterclaim in tort

by alleging that part of that indebtedness was incurred as a

result of the negligence of the other party. fioreover, of

the nineteen paragraphs of particulars which would be
subjoined to paragraph 14(c)(vi) if this amendment were
allowed, the first four refer to variation orders which are

not listed in the further and better particulars of paragraph

15 of the amended statement of claim as incorporated by

reference in paragraph 14(a) of the reply and answer to
cross-claim.

Counsel for WIQ also complained that he broad

allegations of negligence in paragraph 14(c)(vi) of

Caboolture Park's reply and answer are insufficiently

particularized. A related vice is that no attempt has been

made to distribute the five allegations of negligence in the

body of that sub-sub-paragraph between the various variation
claims said to have been unnecessarily incurred. Those complaints can be made with even more force of the present particulars of that sub-sub-paragraph which comprise no more than a catalogue of seventeen variation claim numbers.

However, WIQ has apparently been prepared to allow the trial
to proceed without making those complaints. That of itself
is no reason for not requiring Caboolture park to provide
proper additional particulars of the fresh paragraphs (1) to (t) inclusive which it seeks to introduce as particulars of

paragraph 14(c)(vi). On the assumption that such additional

particulars can be provided, I am not persuaded that W I Q

would be unjustly prejudiced in a way not compensable by

costs if this amendment were allowed. In expressing that
view, I have not lost sight of the fact that the proposed new paragraphs (r), ( 5 ) and (t) raise allegations of negligence in the administration of the trade package of Gay Holdings Pty. Ltd. and that its claim against W I Q was compromised

before the separate trial of issues pertaining to it had

commenced.
Accordingly, I propose to allow the proposed amendment
to paragraph 14(c)(vi) provided that paragraphs (1) to (t)

inclusive of the particulars thereto are redrawn to

incorporate particulars specifying in respect of each item of
additional work or additional cost detailed therein all of

I. . .

the acts, facts and circumstances aid to constitute
negligence by WIQ in:-

failing to take into account the order in which
subcontract works must necessarily be carried out;

failing to make allowance for set-downs;

failing to take into account the time required for the
performance of detailing and special finishes;

failing to prepare, amend or adhere to a detailed
construction programme;
failing to co-ordinate the performance of subcontract

works so as to minimize disruption to individual
sub-contractors.
The next amendment for which Caboolture Park seeks

leave is to sub-sub-paragraph 14(c)(vii) which, as a result

of an amendment made pursuant to leave granted on 1 July 1988

is presently in the following form:-

"The cross-applicant has claimed, or allowed to be

claimed variations which related to those works,

excluding variations, which were to be performed
by the Builder and which were provided for in the

agreement referred to in paragraph 2 of the
Amended Statement of Claim. The said conduct on
the part of the Cross-Applicant was negligent, in

that was i the r sponsibility the of
cross-applicant under the said agreement (and, in

particular, Clause 6.01 thereof), and further or
alternatively it was the usual practice within

the building trades generally for a head

contractor to ensure that variations not be

I . . .
claimed in respect of works which are comprised
within the plans and specifications under the
head contract.

As a consequence of the cross-applicant's said
negligence, the following variations have been
incurred which would not otherwise have been
incurred:-"
Then followed details of work described in variation

orders numbered 7/10, 7/24 and 7/29, all of which was
performed by Paks Contractors Pty. Ltd. ("Paks") and which
has been the subject of a separate trial which concluded on

21 July 1988. No findings of fact or reasons for judgment
have yet been published in relation to that separate trial.

The amendment of sub-sub-paragraph14(c)(vii) for which

leave is now sought involves the insertion after the words "the head contract" the words "and/or relevant sub-contract'' and the sub-joining of the following additional particulars
referable to sub-contract trade packages other than that of
Paks:-
"VOl/O2

- backfilling, Ove Arup drawing 3907/00 and
3907/51 and 3907/03 detail the requirement for

backfill; also refer Lynch & Blow

specification p. 26 cl. 3 'scope of works' and
cl. 14. p. 29, cl. 17 p. 30

- exhaust rises ramp work driveway finishing and

work to section F. All of this work is

detailed on 3907/2, 3907/3, 3907/50 and 51
VO1/0 4

- hire of equipment to undertake backfill is a

necessary incident of the execution of the

backfilling work referred to above - provision

of necessary equipment to be at subcontractors
cost pursuant to clause 2 b(i) of subcontract.
V04/04

- backfilling refer comments above

- excavation - a detailed excavation
sub-contract was let

- concrete and sand for block layer was a part
of the block layers responsibility refer block
work subcontract appendix B l(f) and l(b)
V06/18

- (part) encasing columns refer Ove Arup tender
drawing 3907/22 and 3907/21
V06/21

- (part) fire proofing columns
VO9/Ol

- (part) fixing of re-inforcement refer RMH

subcontract appendix B extended work

VOll/Ol, 03

V0 13/0 2

- gatic grates refer Coles spec ifica tion 85003 3.
cl. C13, clauses A20, A27, C ,l, CE i, D3
V015/03

- item 19 construction of bulkhead over bakery

prep. area refer Coles specification H2 P. 41,

ECP tender 9.5.86 item 10(e)
- item 20 construct bulkhead, as above
- item 21 construct bulkhead, as above"
I have already drawn attention in reasons for judgment
published on 1 July 1988 to the difficulty inherent in the notion that merely making a claim or allowing a claim to be

made can constitute a breach of contract. A similar
difficulty is created by the allegation in the existing paragraph 14(c)(vii) of the answer that it was negligent for WIQ to have claimed or allowed to be claimed certain variations which were subsequently approved by Caboolture Park‘s architect.
No support for the existence of a duty of care of the

kind adumbrated in this paragraph is provided by cl. 6.01 of
the head contract which is particularly pleaded as casting
the relevant responsibility on WIQ. That clause is in the
following terms:-

“6.01

The scope of the Works shall include all the work specifically referred to in this Agreement, all Variations thereto instructed, sanctioned or required under the terms of this Agreement and all minor items of work obviously to be inferred therefrom for the proper execution and completion of the Works to the reasonable satisfaction of the Architect and for the proper performance by the Builder of his obligations under this Agreement.

6.02 Unless otherwise stipulated the Builder
shall provide at his own expense everything
necessary for the proper execution and
completion of the Works and for the proper

performance by the Builder of his
obligations under this Agreement.

6.03 The Builder is and shall remain responsible
for all construction means, methods,
techniques, sequences and procedures
employed and to be employed by him in and
abut the execution of the Works and for

co-ordinating all portions of and the
execution of all- portions of the Works.
6.04

The Builder is and shall be responsible for
the superintendence of the Works so as to
ensure that the Works are executed in
accordance with this Agreement. For the

purposes of such superintendence the

. . . . - 16 -

* L
Builder shall maintain on the Works during
their progress a competent person to
superintend the Works together with any
necessary assistants."

It may perhaps have been a tacit acknowledgement of the

kind of difficulty to which I have just referred, that, in
the course of the separate trial of issues pertaining to the

sub-contract of, and performance of work by Paks, Caboolture
Park adduced no evidence to substantiate this allegation of

negligence relation in s xteen he t xisting

sub-sub-paragraphs particulars of sub-paragraph to
14(c)(vii). At all events, no indication has been given that

evidence is now available to establish a duty of care on the

part of a head contractor to "ensure" that only those
variations are claimed which are properly allowable under the
relevant sub-contract and the head contract.

.

TO allow an amendment to the body of sub-paragraph

14(c)(vii) which allows Caboolture Park to contend that a
particular claimed (and approved) variation was not properly

allowable "under the ad contract and/Or relevant

sub-contract" would be embarrassing to WIQ because the

proposed additional particulars do not generally identify
whether the plans and specifications relied on as precluding
the work from being an allowable variation formed part of the
head contract, the relevant sub-contract, or both. Indeed,

the particulars referable to variation orders numbered

V06/21, V 0 11/01 and V 0 11/03 do not identify any plans or
specifications which are said to preclude that work from
being a proper variation.

. . . .

The new particulars which this proposed amendment seeks to introduce are all related to approved variations, in respect of all but one of which Caboolture Park has admitted in paragraph 14(a) of its answer discussed above, that moneys become due and payable by it to WIQ. Accordingly, the allegation in sub-paragraph 14(c)(vii) is in no sense set up
in diminution of the value of the unapproved variations to which the cross-claim is confined. It is a pure counterclaim

for damages for negligence. That was accepted by Mr Perry for
Caboolture Park when he said:-

"... all of the items set out through to page 25 are approved and paid for, but my client alleges

although there has been certification it has paid money and, therefore, suffered a loss in circumstances where the cost was incurred through the negligence of WIQ, and we are entitled to set off that sum in those circumstances, and, again,
submit the fact of an architect's certification
is not fatal to a claim in tort.

The implementation of the contractual provisions relating to approval and certification do not deny a tortious claim. It may be different in a contractual sense, which is why in the contractual parts of this pleading there is no reference to approved variations."

If this counterclaim in negligence has any validity at all, which I very much doubt, it raises the spectre of a
wide-ranging investigation of the responsibilities of Caboolture Park's architect in approving variations and the extent to which it discharged those responsibilities. It is conceivable that WIQ may wish to join as additional

cross-respondents, for the purpose of seeking contribution,

. - 18 -

1 . . .
Lynch & Blow Pty. Ltd. and any other consultant or person to

whom the measurement of a given variation was entrusted

pursuant to cl. 10.16.01 of the head contract.
As will be apparent from what I have already said and

in my earlier reasons for judgment on applications by
Caboolture Park for leave to amend its pleadings, the real

question or questions which it has sought to put in
controversy by its reply and answer have been far from clear.
However, it is clear that the proposed amendment of paragraph

14(c) (vii) raises at this late stage a new issue. That makes
applicable the principle enunciated in these terms by Jordon

C.J. in Commonwealth Dairy Produce Equalisation Committee NcCabe (1938) 38 S.R.

v

(N.S.W.) 397 at 400:-

"When it is sought by amendment to raise new

claims in a case in which it would be
inconvenient to litigate them, and no injustice
will be caused if they are left to be disposed of
in other proceedings, there is no reason why the
amendment should not be refused. If, however, it

is sought to raise a new issue, as to which there
is a genuine desire that it should be litigated,
and this is involved with the determination of
something necessarily falling to be determined in
the action, an amendment should always be allowed

for the purpose unless it is impossible to do so

without causing substantial injustice to the

other party. Especially is this the position

when, if the amendment be not allowed, the party
will be debarred from raising the issue at all."

~r Perry for Caboolture Park accepted that:-

"... it would not be difficult to commence
proceedings upon the basis that whether they be
certified or not the simple fact is there has
been an overpayment. And, similarly, with the

negligence proceedings it would be a simple

matter to commence proceedings and whatever

defence or defences White may have can be pleaded
in that case, just as they could be in this case

L .

. . . .

- 19 -

It would be a simple matter to issue proceedings
claiming that in effect, again, we have overpaid
White because these variations which have been
certified and paid for ought never have been
incurred."

However, he went on to urge that this Court as presently

constituted is the appropriate forum to determine the new
issues sought to be raised by these proposed amendments. He
emphasised the understanding already gained of "the nature of
the construction, what work was done, what arguments are

being raised for and against the sorts of work, particularly
where there is a common link between defences raised in the
contractual part by way of preliminaries, co-ordination,
scope of works, and in the negligence part, particularly
where the evidence will essentially be along the same track".

The Court clearly has a discretion in deciding whether

or not to grant an application for leave to amend pleadings,

notwithstanding the apparently mandatory language of 0.13 r.2
which provides:-
"All necessary amendments shall be made for the
purpose of determining the real questions raised
by or otherwise depending on the proceeding, or

of correcting any defect or error in any

proceeding, or of avoiding multiplicity of

proceedings. 'I

For a recent affirmation of the existence of the discretion

despite similar language in the rule, see G.L. Baker Ltd. v

Medway Building and Supplies Ltd. [l9581 1 W.L.R. 1216 per
Jenkins L.3. at 1231.

. I

. .

In my view, in exercising that discretion in the

present case I am required to consider the extent to which
the new issue involves evidence and argument common to issues

the
convenience of having that issue determined in the same
proceedings 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.
It is also appropriate to take account of the matters to
existing pleadings and to balance the

raised by

which I have earlier referred in respect of this proposed

amendment. On doing that, I have come to the clear
conclusion that the balance is heavily against allowing the
amendment, which is therefore refused.

Caboolture Park next seeks to add to paragraph

14(c)(viii) some six pages of additional particulars
referable to variation orders raised in respect of trade packages numbered l, 2, 4, 6, 8, 9, 20, 24 and 35. It is not sought to change the body of paragraph 14(c)(viii) which is
in these terms:-

"(viii) The Cross-Applicant has claimed, or
allowed to be claimed, variations in respect of

preliminary charges which ought not have been so
claimed or allowed.

The said conduct the on part the of
Cross-Applicant was negligent, in that it was the responsibility of the Cross-Applicant under the

Agreement referred to in paragraph 2 of the
Amended Statement of Claim (and, in particular,
Clause 10.18 of the Agreement), and further or
alternatively it was the usual practice within

the building trades generally for a head
contractor to ensure that claims were not made or

allowed in respect of preliminary charges in

excess of the provision thereof in the head
contract.
As a consequence of the Cross-Applicant’s said negligence, the following Variations claims have been incurred which would not otherwise have been incurred:-”

Paragraph 14(c)(viii) of an amended reply and answer

filed on 16 September 1987 included a list by number of some seventy-nine variation claims which it was alleged would not

have been incurred but for the negligence of WIQ specified in

the body of that sub-paragraph. In reasons for judgment
published on 1 July 1988, I allowed Caboolture Park to

substitute a much shorter and more detailed set of
particulars confined to variations claimed in respect of work

performed by Paks which were said to have been properly
classifiable as preliminary charges. I then observed, at p.
25:-

“Leave has also been sought to insert new
paragraphs 15(c) (vii), (viii), (ix) and (X)
charging WIQ with negligence. Those paragraphs
reproduce with only minor variations paragraphs
14(c)(vii) to (X) of the existing amended reply
and answer. Different particulars are appended to the proposed new paragraphs, but they are less

extensive and, in some instances, more
informative, than those subjoined to the existing

sub-paragraphs (vii) to (X). Without being taken
to endorse the form or substance of either the existing or proposed new paragraphs, I am prepared to allow the substitution of the latter

paragraphs. It should not be assumed that I have

formed any view about WIQ’s entitlement to
further and better particulars of the particulars

now given of these allegations of negligence. As
a result of the amendments which I have just
allowed, the new particulars are focussed on the
performance of work by Paks as a sub-contractor
to WIQ. I infer that application will be made
for leave to provide additional particulars of

negligence referable to aspects of the works

carried out by other sub-contractors. MY
attitude to each of those applications, if they

are made, will, of course, be influenced by the
time at which leave is sought in relation to the
date at which the trial of issues pertaining to
the sub-contract of, or the performance of work
by, the sub-contractor concerned is likely to
commence, and the sufficiency of the particulars
which Caboolture Park proposes to provide."

The forty-five variation orders on which the proposed amendment to paragraph 14(c)(viii)

is focussed have all been
approved by Caboolture Park's architect pursuant to the head

contract. Therefore, as with the variation orders sought to be inserted in the particulars to paragraph 14(c)(vi), it

s

not open to say of those variation orders, as is done in the
body of paragraph 14(c) of the present amended reply and

answer, that negligent administration of the head contract in

relation to them "increased and exacerbated" the amount

claimed by WIQ in paragraph 3 0 of its cross-claim which

refers exclusively to unapproved variation orders. By
contrast, the particulars provided under this sub-paragraph

as it presently stands, which are confined to variation
claims in respect of work done by Paks, are all directed to

unapproved variations. All but one of the variation orders to

which it is now sought to direct the allegations of

negligence in paragraph 14(c)(viii) are listed in the further

and better particulars of paragraph 15 of the amended
statement of claim. Consequently all but one contribute to
the net value of $2,475,658.93 for which Caboolture Park has

admitted indebtedness to WIQ in respect of approved

variations. The single exception appears to be v09/30.
.

- 23 -

Only nineteen of the forty-five variation orders to which the proposed new particulars

under

paragraph
14(c)(viii) are directed appeared in the list of seventy-nine
variation orders which comprised the particulars under that
sub-paragraph when it was originally inserted in September
1987.

Even in its present form, paragraph 14(c)(viii) raises for Caboolture Park a difficulty similar to that noted

a p.

15 above, of making good an allegation that a building

contractor can be negligent in merely claiming or allowing to
be claimed variations which should not have been approved by

the architect because they were for work properly subsumed
within the contractual description "preliminaries". Clause

10.18 of the head contract is of no assistance in

establishing the existence of the necessary duty of care

because it does no more than provide a mechanism and criteria
for the valuation of variations properly so-called.

It will be apparent from the analysis which I have just

undertaken that he proposed amendment of paragraph

14(c)(viii) shares many of the features which led me to

refuse the proposed amendment of paragraph 14(c)(vii). It

similarly embodies a pure counterclaim which could readily be
embodied in separate proceedings if Caboolture Park chose to

institute them. Likewise, it raises the prospect of a

substantial investigation of the discharge by Caboolture
Park's architect of its responsibilities to examine claimed variations and its understanding of what costs were properly attributable to "preliminaries" under the head contract.

As I understand the construction of the contract

contended for by Caboolture Park, it is that WIQ was liable

to meet out of its own funds all expenses within the
contractual description of "preliminaries" even if the sum of

those expenses overtopped the amount of $1,050,000

attributable to that item in cl. 15.03 of the contract.

Accordingly, whether or not a cost was properly subsumed
within "preliminaries", the entitlement of the sub-contractor

who incurred it to be paid remained unaffected. Thus,
negligence by the architect in failing to classify a claimed variation as a "preliminary" would not have caused damage to

WIQ as would have negligent approval of a claim by a
sub-contractor for what was not properly a variation to the

sub-contract. That difference, and the fact that
"preliminaries" have been recognized on both sides from an early stage in the hearing of this litigation as a real

issue, have led me, on balance, to exercise my discretion in

favour of the proposed amendment of paragraph ll(c)(viii),
notwithstanding my refusal of leave to amend paragraph
ll(c)(vii).

However, I consider that it is essential for Caboolture

Park to plead what it alleges is the effect of the

contractual term in relation to "preliminaries". See e.g.

Bullen & Leake, Precedents of Pleading 12th Edn p. 346. The

only express reference to "preliminarles" in the head
contract appears to be that single word and the money amount of $1,050,000 ascribed to it in cl. 15.03. I gather, therefore, that the term on which Caboolture Park relies as

establishing the ambit of preliminaries is to be implied.

That casts on Caboolture Park an obligation which was
identified in this way by Ferguson J. in Burton v Karbowsky
(1914) 14 S.R. (N.S.W.) 373 at 380:-
"The plaintiff, in suing upon an implied promise arising under this agreement, had two courses open to him. ne might have alleged in terms the

promise which he claimed as being implied: as for

example that the defendant for the considerations

stated had promised to supervise the construction

of the machine, or that he had promised to do all
things necessary on his part to enable the
plaintiff to construct the machine. On the trial
he would have given in evidence the written
agreement and the surrounding circumstances, and
it would then have been for the Judge to

interpret the document in the light of the
finding of the jury on the facts. As the plaintiff did not adopt this course, but set out verbatim an agreement depending for its interpretationupon surrounding Circumstances, it lay upon him to allege those circumstances with certainty, in such a way that the interpretation

he contends for must follow as a matter of
necessary implication."

Me Perry for Caboolture Park claimed to be absolved have been filed on behalf of his client by Mr Priestley, a

from that obligation in the present case because affidavits
quantity surveyor, and Mr Lacis, an engineer, which refer to

the concept of "preliminaries". In paragraph 3 of his
affidavit, Mr Priestly has deposed:-

"In this my Affidavit I have also used the terms
'Preliminaries' or 'Preliminary costs'. When using these terms I mean those items of plant, equipment and services which in my experience a builder usually supplies or provides to the site

.

.

. .

- 26 -

.

a

and which are generally not provided by any
particular trade. In my experience the following
items would be considered Preliminary items:-"

Then follows a list over some three pages of items on which

money might be expended in erecting a building. It is then

deposed that "Rawlinson's 1985 Edition defines preliminaries

to include:-". That assertion is followed by a further six

pages enumerating items of expenditure under different

sub-headings. It is then deposed that:-

"The Australian Standard Method of Measurement of

Building Works Fourth Edition requires

Preliminaries to be considered as follows:-
'General Particulars

2 . 0 7 Unless already covered by the schedule

of insertions in accordance with clause

2.04(d) or by the particulars stated in
accordance with clause 2.04(e) items shall be
given in respect of any requirements of the

contract regarding matters such as the

following, reference being made to the

relevant general or special conditions of

contract, specification clause or other
document:-'"
Then follow a further two pages of extracts from that work.

Paragraph 5 of the affidavit of Mr Lacis is in

substantially identical terms to paragraph 3 of Mr
Priestley's affidavit.

In my view, to treat those passages from the affidavits

of Mr Priestley and MC Lacis as notionally incorporated in paragraph 14(c)(viii) of the reply and answer would not discharge Caboolture Park's obligation to plead the effect of
the term as to "preliminaries" on which it relies and,

. .

insofar as the term is to be implied, the facts giving rise
to that implication. To reproduce the whole or part of the

passages from the affidavits which I have just described
would also offend against the prohibition in 0.11 r.2(a) on
pleading evidence.

I also consider that the particulars proposed to be

added to paragraph ll(c)(viii) are insufficient to enable WIQ

to know the case which it has to meet. I shall therefore

grant leave to Caboolture Park to amend that sub-paragraph on
condition that, as amended, that paragraph contain:-

(i) a statement in summary form of the effect of the
alleged term ofthe contract inrespect of "preliminaries", and, insofar as that term was to be implied, particulars of the acts, facts, matters and circumstances which gave rise to such implication;

(ii) as to each item in each of the variation orders
specified therein, particulars of the facts, matters
and circumstances which are said to constitute the cost

incurred in respect of that item a "preliminary" or

"preliminary cost" within the meaning of that term as
pleaded in accordance with (i) above.

Caboolture Park next seeks leave to insert in its

amended answer entirely new paragraphs 17 - 20 inclusive. Counsel for WIQ does not oppose the proposed additions of paragraphs 17 and 18 although he does criticize some parts of
.

. .

- 28 -

17 as not accurately stating the effect of the contractual provisions to which those parts refer. However, as I understand it, paragraphs 17 and 18 are sought to be inserted

only by way of providing a foundation for the allegations in

the proposed new paragraphs 19 and 20. In the draft amendment

as initially put forward, paragraph 19 was in these terms:-

"19. In the case of each of the matters described

in clause 15.03 the cross-respondent and the
cross-applicant by the matters alleged in paragraph 20(h) of the defence and cross-claim, expressly or impliedly agreed:-
(a) that the relevant sub-contractor would execute perform or supply the work and/or

services and/or materials the subject of
such matter;
(b) the price

and/or cost of such work
and/or services and/or materials the subject
of such matter;
(c) the form and terms of sub-contract for such work and/or services and/or materials the subject of such matter;
(d) the items of work the subject of each

such sub-contract. "

On the morning of 21 October 1988, Mr Perry for

Caboolture Park proffered the following new version in

substitution for the proposed additional paragraph 19:-

"19. In the case of the trade packages described

in Clause 15.03 the CKOSS Respondent and
Cross Applicant, by the matters alleged in

paragraph 20(h) in the Defence and Crossclaim
expressly or impliedly agreed:
(a) that the relevant subcontractor would
execute perform O K supply certain work
and/or services and/or materials;

. .

. -

(b) that the Cross Applicant would cause or ensure that the relevant subcontractor

performed and/or supplied the work

and/or services and/or materials in

accordance with the terms of the
relevant subcontract;

(c) that the price and/or cost of such work
and/or services and/or materials was not

to exceed the price and/or cost set out
in the relevant subcontract;

(d) the form and terms of subcontract for

such work and/or services and/or
materials;

(e) the items of work the subject of each

such subcontract .'I

In the course of discussion with Counsel I expressed

reservations about the efficacy of that alternative

formulation, and, when the hearing of the application for

leave to amend resumed on 24 October 1988, yet a third

version was proposed in these terms:-

"19. In the case of the trade packages described

in clause 15.03 the cross-respondent and the

cross-applicant by the matters alleged in
paragraph 20(h) of the defence and cross-claim
expressly or impliedly agreed:

(a) that the cross-applicant would cause or
ensure that the relevant sub-contractor performed

and/or supplied the work and/or materials and/or

services required to be performed and/or supplied
pursuant to the subcontract;

(b) that the price and/or cost and/or rate of

supply of such work and/or services and/or

materials would not exceed the price and/or cost

and/or rate of supply set out in the subcontract;

Paragraph 20(h) of the defence and cross-claim pleads

that: -

"The Applicant has known since on or before 13th

November 1985, and at all times up to the date
that it filed this Application in this Honourable

Court (22nd December 1986) , that the price

payable by the Applicant to the Respondent
pursuant to the said agreement would not be close
to the said target sum of $13,375,000.00.

Particulars

...
(h) The Applicant knew of the prices and rates

for which each of the sub-contracts for each
of the 41 trades mentioned in Clause 15.03

of the said agreement was let by the
Respondent and the Applicant approved of the
letting of each such sub-contract on or
about the date that each such sub-contract

was let. The total values the of

sub-contracts when let ($15,426,572.60),

substantially exceeded the total of the

provisional sums clause in 15.03
($11,975,000.00). Particulars of the date
and the value of each such sub-contract are
contained in annexure 'B' hereto."
The facts there pleaded on behalf of W I Q in no sense

establish an express agreement to the effect of either
sub-paragraph (a) or (b) of the proposed new paragraph 19 in
its final form. Nor in my view are they capable, without much

more, of providing a foundation for the implication of an
agreement to the effect of either of those sub-paragraphs.
Paragraph 20 as proposed to be inserted in Caboolture

Park's amended reply and answer also underwent significant

changes in the course of argument. As initially proposed it
was in this form:-

"20. In the premises:-

(a) the cross-respondent is obliged to pay

to the cross-applicant in respect of each

matter described in clause 15.03 no more

than the sum or sums specified as the
sub-contract sum in the sub-contract let in

respect of that matter together with

variations properly authorised by the
cross-respondent;

. .

(b) the cross-respondent is not liable for
the items of work set out hereunder being

items of work within the scope of works of a

sub-contract t e which for but
cross-claimant claims in addition to the
relevant sub-contract sum."

There then follow some twenty-two pages of particulars
related to specific variation order numbers, as to each of

which it is contended that work for which a sub-contractor

has claimed an amount due as a variation was work within the
scope of the relevant sub-contract and the price for which
was included in the relevant sub-contract price.

By way of a first revision M r Perry offered to

substitute the phrase "trade package" for the word "matter"
where twice appearing in the proposed new paragraph 20(a).
Then he accepted my suggestion that it might be made more

conformable with the scheme of the head contract if it were
expressed thus:-

"20. In the premises:-

(a) the Cross Respondent is obliged to pay
to the Cross Applicant in respect of
all of the trade packages described in
Clause 15.03 no more than the total of

the sum or sums specified as the

subcontract sum in each of the
subcontracts let in respect of all the
said trade package together with any

sum properly incurred the in

performance the by work of

Cross-Applicant together with
variations properlyauthorised pursuant
to the agreement;

(b) the Cross Respondent is not liable for
the items of work set out hereunder
being items of work within the scope of

works of a subcontract but for which
the Cross Claimant claims in addition
to the relevant subcontract sum."

However, that reformulation has the effect that

sub-paragraphs (a) and (b) each assert the same legal
consequence, one in positive terms and the other in negative

terms. That of itself might render one or other
sub-paragraph otiose, but is is unnecessary to consider that
criticism. The introductory words "in the premises" make it
clear that the allegations in both sub-paragraphs of the

proposed paragraph 20 depend on the allegations sought to be
introduced in the preceding paragraphs, and particularly

proposed new paragraph 19. For reasons which I have already

indicated the insertion of that paragraph cannot be allowed.

The related paragraphs 17, 18 and 20 (in whatever form) must
therefore fall with it.

It is next proposed to plead in what would become a

completely new paragraph 21 that:-

"21. In the case of those sub-contracts and items
of work described below the cross-applicant has

claimed against the cross-respondent the whole of
the sub-contract price but has not performed or

procured the performance or completion of the

items of work in such sub-contracts to the extent
described below:-"

Appended to the proposed

according to variation order number are some six pages of new paragraph 21 and arranged
particulars of items of work or materials which specified
sub-contractors were allegedly obliged by their sub-contracts

to perform or supply, but which were allegedly not performed
or supplied in their entirety or at all.

. .

. . . .

,

- 3 3 -

The first four items in those particulars are
reproduced by way of example:-
"V018/04
Item 10 Penetrations for A/C Units not complete ($3840.00)
V018/06

Item 1 'U' channel gutter to barrel vaults

not installed ($128.00)
V019 - Beavis & Bartels
(a) downpipes not erected to front awning
but priced in item 1K of Beavis & Bartels
variations dated 26/6/86 (WIQ V109/94)
($1,967.00)

(b) drains to air-conditioning units shown

on Contract Drawing H20-Rev B but not

completed northside of roof ($8,542.00)"

Mr Fraser for WIQ has criticized, I think validly, the sufficiency of those

particulars.

In

my view, the
particulars should indicate the term and any specification or

drawing incorporated in the relevant sub-contract which

required the sub-contractor to perform the omitted work
without addition to the sub-contract price. If those further
and better particulars are supplied I shall allow Caboolture

park to amend by inserting a paragraph in the form of the

proposed new paragraph 21.

The legal effect of those omissions alleged in the

proposed new paragraph 21 is then pleaded as follows in the
proposed new paragraph 22:-
"22. In the premises:-
(a) the cross-respondent has suffered loss and damage in the value of such omitted

i tems ;
(b) alternatively, the cross-respondent is

entitled to set-off the value of such
omitted items against the cross-applicant's
cross-claim.''

Complaint is made on behalf of WIQ that no basis has been established for the

allegation that Caboolture Park has
suffered loss and damage equal to the value of the omitted

work, or is entitled to set off that value against WIQ's

claim. I uphold that complaint. A claim in damages of this
kind depends upon payment or liability to pay the amount in

question. Likewise a claim to a set off must be predicated on

an admission of liability on same claim against which it is

alleged the amount in question is to be set off. I shall

therefore allow the insertion of a paragraph in the form of

the proposed new paragraph 2 2 provided that hese
prerequisites to the entitlement to damages and a set off are
also pleaded.

By a further entirely new paragraph 23, Caboolture Park

seeks leave to raise these allegations of defective

workmanship:-

"23. (a) It was a term of the said agreement

implied by operation of law that the

cross-applicant exercise due care and skill
in and in respect of the performance of the
works alternatively it was provided by cl.
608 of the said agreement that all materials

and standards of workmanship used or
undertaken in connection with the works be
of a kind both suitable for its purpose and

consistent with the nature and character of

that part of the works for which it was
used.

. .

(b) In breach of the said term the

cross-applicant failed to perform the works

with due care and skill or alternatively
used materials or undertook workmanship which was not suitable for its purpose and consistent with the nature and character of

that part of the works for which it was

used. Particulars of the manner and extent
of the breaches are set out hereunder."
Particulars are then given over the ensuing five pages of items of allegedly defective workmanship referable to specific variation order numbers, of which the following are set out, again for purposes of illustration:-
"V04/08
J & B letter to WIQ 15/08/86

- Item (e) - surveyor's error

Lynch & Blow specification cl. 32 p. 10 (responsibility of builder, cl. 6.07.01of the said agreement)
VO4/10
B & P Hiring Inv. 503344; 403355; 305555

Tools associated with
rectification

V06/0 3

Item 3
sawcutting to concrete

V06/06
Removal of defective blockwork
V06/51

Quality Control Contracting, remedial work on
K-Mart Auto Bay Floor"
A money amount is ascribed only to the last item in that collection of particulars which is in these terms:-
1 .

. .

. -

- 36 -

Sub-paragraph 23(c) is separated from sub-paragraph

23(b) by the five pages of particulars to which I have just

referred, because although it, too, alleges defective
workmanship the rectification has been, or will have to be,

undertaken by Caboolture Park. It is in these terms:-

"Further in breach of the said term the
cross-applicant failed to perform the work with
due care and skill thereby causing the defects,
loss and damage particularised below.

PARTICULARS

(i) Repairs roof to undertaken by
cross-respondent
$17,586.00

(ii) Plumbing to Dalkin air-conditioning

units not correctly installed. Estimated
cost of rectification
$500.00"

The consequences of the alleged defective workmanship of WIQ and its sub-contractors are then pleaded as follows in

sub-paragraphs (d) , (e) and (f of the proposed new paragraph
23:-

I, (d) The Cross-respondent, as it was entitled
to do, rectified the said defects for the
cost particularised above.
(e) In the premises the cross-respondent is
entitled to set-off the cost of rectification
against the cross-applicant's claim.
(f) Further or alternatively the items of
work described in paragraph 7(b) above are
not items of work done, incurred or expended
under or in performance of the said agreement

but were done, incurred or expended in
rectifying defective and/or damaged work."

. .

(Presumably the reference in sub-paragraph 23(f) to
"paragraph 7(b)" should be to "paragraph 23(b)".)

In my view, that pleading rolls up in a wholly

embarrassing way particulars of the alleged breaches of the
term requiring the exercise of due care and skill, and of the
consequences of those breaches. Particulars should first be

given, for example in relation to V04/10, of the faulty
workmanship O K unsuitable materials which necessitated the rectification for which tools were hired from B & P Hiring.

The consequences of the alleged breach should then be

indicated separately in relation to each item. If these
defects were cured, I would allow an amendment involving the insertion of a paragraph in the general form of the proposed

new paragraph 23. For reasons which I have outlined in

respect of the proposed new paragraph 22, the liability
incurred or accepted against which the cost of rectification

is to be set off should be indicated if the proposed new
paragraph (e) is to stand.

Caboolture Park further seeks leave to insert into its

amended answer to WIQ's cross-claim the following new
paragraph 24:-

"24. Further or alternatively:-

(a) the said agreement provided, by clauses
8.01 and 8.03 that the cross-claimant would

be liable for and would indemnify the
cross-respondent against any injury loss or
damage whatsoever to any property arising
out of or in the COUKSe of or by reason of
the execution of the works provided that

. .

. . '	- 38 -
. .

such loss was due to the negligence omission

or default of the cross-claimant, its

servants or agents or any sub-contractor and

its ervants or agents and that he
cross-claimant would insure the works;
(b) the items of work set out hereunder

were incurred by or occasioned by reason of
damage having occurred to the works through

the negligence omission or default of the

cross-claimant, its servants or agents or a
sub-contractor and its servants or agents."
The same particulars are then given, as are appended to

the proposed new paragraph 23(b) of about fifty-two items of
damage or rectification.
Then follows the proposed new sub-paragraphs 24(c) and

(d) which are in these terms:-
,I

(C) further or alternatively the said

agreement provided, by clauses 8.01 and 8.03
that:-
(i) any loss and damage occasioned to
any property during the execution of
the works was the responsibility of the
cross-applicant and;
(ii) the cross-applicant is required to

indemnify the cross-respondent in
respect of any claim arising out of or

as a consequence of damage to any
property during the execution of the
works.

(d) in the premises the Cross-Applicant is
required to indemnify the Cross-Respondent

in respect of the claims et out in
paragraph 25(b) hereof."

In fact, there is no paragraph 25 in Caboolture Park's draft

further amended reply and answer and the reference to

paragraph 25(b) appears to be a mistake which should read
"paragraph 24(b)".

. . -	. .
. .	- 39 -

Clauses 8.01 and 8.03 of the head contract are in the
following terms:-

"8.01

The Builder shall be liable for and shall indemnify the Proprietor against any liability, loss, claim or proceeding in respect of any injury loss or damage whatsoever to any property real or personal

insofar as such injury loss or damage arises out of or in the course of or by

reason of the execution of the Works
provided always that the same is due to the
negligence omission or default of the
Builder, his servants or agents or of any
sub-contractor, his servants or agents and
provided further that the indemnity hereby
given shall not be defeated or reduced by
reason of any negligence, omission or
default of the Proprietor or any person

other than the Builder for whom the
Proprietor is responsible.

8.03 The Builder in the joint names of the
Proprietor, himself and all sub-contractors
(all of whom are referred to in this Clause

as 'the Insured') for their respective
rights and interests shall have OK effect insurance upon such terms and conditions including exclusions and excesses (if any)
as shall be agreed by the Proprietor and the Builder or failing such agreement as

shall be reasonably required by the

proprietor under a Contractor's Risks Insurance Policy or Policies which shall at all times cover the whole of the Works including any associated temporary works and including material incorporated or to be incorporated therein the property of the Insured or for which they are responsible and whilst on or adjacent to the Site of the Works all of which are in this Section

8 only called 'the Works' in respect

of

loss, destruction or damage of or to the
property insured for the full reinstatement

and replacement cost. The sum insured
shall take into account but be not limited
to:
8.03.01 The full amount of the Contract
sum ;

8.03.02 an amount of not less than that stated in Item E.4 of the Appendix

to provide for additional costs of

demolition and of removal of
debris;

.

. .

- 4 0 -

8 . 0 3 . 0 3

the percentage stated in Item E.5 of the Appendix to cover fees of the Architect and other Consultants;

8 . 0 3 . 0 4 the value stated in Item E.6 of
the Appendix of any materials or things to be supplied by the

Proprietor for the purposes of the
Works; and

8 . 0 3 . 0 5 the percentage (if any) stated in Item E.1 of the Appendix of the

total of the items referred
to in paragraphs 8.03.01 to 8 . 0 3 . 0 4 inclusive to provide for escalation costs incurred (including such costs as may be incurred during any period of reinstatement and/or replacement) during the period up to Practical Completion of the Works."
In my view, cl. 8 . 0 1 is concerned with the obligation of the builder to indemnify the proprietor against liability to third parties for the negligence, omission or default of the builder, his servants or agents or any sub-contractor. Clause 8 . 0 3 obliges the builder to insure the works against

loss, destruction or damage during the p riod f
construction. Those clauses have no bearing on the
obligation of the builder to rectify faulty workmanship or
defective materials, or the entitlement of the proprietor to

damages if such rectification be not carried out. Those
matters would be sufficienly raised by the proposed new

paragraph 2 3 amended in the way suggested above. I therefore
disallow the insertion of the proposed new paragraph 2 4 .

A further allegation is then made about "preliminaries"

in paragraph 26(a) of the draft which reads:-

. *

. .

"26. (a) In the case of those items described

below which are claimed the by
cross-applicant, the cross-respondent says
that the items come within the scope of or

meet the description of 'preliminaries' in
clause 15.03."

Then follow a further six pages of particulars of which
the first four items are reproduced by way of example:-

"V0 4/08

- J & B letter 15/08/86 Item (g) - provision of temporary

access, clause 3.07 the of said
agreement.

- J & B letter 15/08/86 Item (a) cleaning, refer EG Item 20 on
document AN 96

- B & P Inv. 502588
Temporary electricity, refer item 11 document
AN 96

- B & P Inv. 502996
air hoses"

Sub-paragraphs (b) and (c) of the proposed new

paragraph 26 are in these terms:-

"(b) Clause 15.03 of the said agreement provides

that the otal p yable sum

he cross-respondent

by

o the cross-applicant for

preliminaries is $1,050,000.00.

(c) In the premises, the cross-respondent has no
liability in respect of those items of work

and/or sums set out in sub-paragraph (a) hereof."

The observations which I made at pp. 24 to 27 above

about paragraph 14(c)(viii) of the amended reply and answer to WIQ's cross-claim apply with equal force to the proposed

insertion of the new paragraph 26. I shall therefore allow

the latter amendment provided that it is redrawn to
incorporate or refer to a statement in summary form of the

effect of the alleged term of the contract in respect of

“preliminaries”, and insofar as that term was to be implied,
particulars of the acts, facts, matters and circumstances
which gave rise to such allegation. I also require, as a
condition of leave to amend by inserting the proposed new
paragraph 2 6 , the incorporation in the particulars subjoined
to sub-paragraph (a) thereof further particulars stating in

respect of each item in each of the variation orders

specified therein, the acts, facts, matters and circumstances
which are said to constitute the cost incurred in respect of that item a “preliminary“ or “preliminary cost“ within the meaning of cl. 15.03 of the head contract.
The proposed new paragraph 27 of Caboolture Park’s

amended answer in effect denies liability to pay for any
unapproved variations which were not authorized in writing by

the architect. It is in these terms:-

“27 . (a) The said agreement provided, by clause

6.10.03 that all variations to the said
agreement be authorised in writing by the

architect before the variation work was
commenced;

(h) the said agreement further provided, by
clause 5.04 that no instruction notice or authorisation by the architect would have

any force or effect unless in writing;

(c) in the case of the items of work

particularised in the Scott schedule
delivered by the cross-applicant herein no authority in writing by the architect was provided;
(d) in the premises the cross-respondent is
not liable to the cross-applicant in respect
of such work.“

. . . .

- 4 3 -

Clause 5.04 of the head contract provides:-
"Any instruction or notice which the Architect is
obliged to give or chooses to give pursuant to
this Agreement shall be given promptly and in
writing. No instruction shall have any force or

effect under this Agreement unless given by the
Architect."

By cl. 6.10 of the head contract it is stipulated:-
"The Architect may instruct Variations and the
Builder shall carry out the same subject to the
following:

6.10.01 Unless otherwise agreed all Variations
shall be within the general scope of

this Agreement so as to be of a
character and extent contemplated by
and capable of being executed under the

applicable conditions of this
Agreement.
6.10.02 The Contract Sum shall be subject to
any appropriate adjustment under Clause

10.16 and the Date for Practical
Completion shall take into account any
extra time or reduction of time under
Clauses 9.07 and 9.08 respectively.

6.10.03

All such Variations shall be authorised in writing by the Architect before the variation work is commenced unless the
Architect is of the opinion that the
matter is one of such urgency that the
Builder should proceed without awaiting
a written instruction, in which case

the Architect shall authorise the

Variation in writing as oon as

practicable thereafter. The provisions

of Clause 5.04 shall be read and

construed subject to the provisions of
this paragraph."

The allegation in the proposed new paragraph 27(c) is ambiguous but I read it as being that none of the items

of

work comprised in the unapproved variations listed by WIQ in

its Scott Schedule has been authorized in writing by
Caboolture Park's architect.

. .

Mr Fraser has attacked this proposed amendment as not

raising a genuine issue b cause, in its response to the Scott
Schedule, Caboolture Park has referred to drawings and specifications described in unapproved variations, and has admitted liability to pay for some of those variations. There

is much force in this attack on this indiscriminate denial of
liability for all unapproved ariations, particularly when it is remembered that Mr Perry indicated in the course of the separate trial of issues related to the performance of work by Paks that the corresponding allegation in paragraph

14(c) (ix) of the existing reply and answer was not pressed in
respect of variations said to have been carried out by that

sub-contractor. I also take the view that the contention in

the proposed new paragraph 27 as to the effect of cll. 5.04
and 6.10.03 of the head contract cannot be sustained. Leave

to insert that paragraph is accordingly refused.

By its proposed new paragraph 28, Caboolture Park seeks leave to contend that some of the

amounts claimed by WIQ (in

its cross-claim) are in excess of the fair and reasonable
cost of the work involved. About wo pages of particulars of

excess of $74,953.23. allegedly excessive claims are provided disclosing a total Paragraph 29 as proposed to be inserted is linked to

paragraph 28 and is in these terms:-

“29. In the premises, the cross-respondent:-
(a) denies liability to the extent to which

the amount claimed exceeds the fair and
reasonable cost of the work;

. .

(b) admits liability for those amounts set
out as 'responses to the amounts claimed' in
the particulars to paragraph 28."

I consider that the insertion of the proposed new

paragraphs 28 and 29 can be allowed without prejudice to WIQ
if particulars are provided in each instance of the basis and
method of calculation of what Caboolture Park alleges to be
the fair and reasonable cost of the work involved. Moreover,
no indication is given in the present draft particulars of
what Caboolture Park contends to be the fair and reasonable

value of variation V06/03 for which WIQ has claimed
$13,012.30. If these deficiencies are supplied I shall grant leave to insert new paragraphs in the form of the proposed paragraphs 28 and 29.
A further allegation is then sought to be introduced by

paragraphs 30 and 31 that insufficient credit has been given
to Caboolture Park for work within the scope of the head

contract which was deleted or incompleted. The alleged
deficiency in credit allowed for those items as revealed by
the particulars is $39,695.89.

As with proposed paragraphs 28 and 29, I am prepared to

allow this amendment provided that Caboolture Park

incorporates in it particulars of the basis and method of
calculation of the amount which it contends should have been

allowed to it as a credit in respect of each deleted or
uncompleted item.

. .

The proposed new paragraph 32 of Caboolture Park's

amended reply and answer is in these terms:-

"32.

With respect to paragraph 32 of the defence and cross-claim the cross-respondent:-
(a) alleges that the items of work set out
in the particulars to paragraph 32 come
within the scope of or meet the description
of 'preliminaries' in clause 15.03 of the
said agreement;
(b) denies that the amounts claimed therein
were or are provisional sums;

(c) denies that the items of work are

claimable pursuant to the provisions of
clauses 4.03.03 and 10.27.03 of the said
agreement;
(d) says that clause 15.03 of the agreement provided that the total sum payable by the cross-respondent to the cross-applicant in
respect of preliminaries was $1,050,000.00; (e) denies that it is liable in respect of

the items of work and/or sums set out in the
further and better particulars of paragraph
32."

Paragraph 32 of WIQ's defence and cross-claim recites

that:-

"Further, pursuant to Clauses 4.03.03 and 10.27.03
of the said agreement there became due and owing by the Cross-Respondent to the Cross-Claimant the further sum of approximately $500,000.00 as the
value of work carried out by the cross-claimant.

Particulars of the calculation of this amount

will be provided."

The further and better particulars provided by WIQ of that paragraph are:-
"The Cross Claimant/Respondent has estimated the
average cost to the Cross Claimant/Respondent of

its labour in supervising variations and

assessing variations. It has also calculated
photocopying costs and other costs associated

e calculations with application to each variation These estimates and

with variations.

. . . .

to each Subcontract package are set out in

Schedule 4 hereto. ''

Mr FKaSeK did not oppose the grant of leave to insert sub-paragraphs (b) to

( e ) inclusive of the proposed new
paragraph 32. He objected to the proposed paragraph 32(a).
In my view, that objection can be overcome by incorporating

expressly or breference a statement related to

"preliminaries" of the kind indicated at p. 21 above and by
providing particulars of the facts, matters and circumstances

which are said to constitute the costs detailed in Schedule 4

to the further and better particulars of WIQ's defence and
cross-claim "preliminaries" as pleaded in that statement.

Conditionally on the making of those further amendments, I
shall grant leave to make the amendments embodied in the
proposed new paragraph 32.

Leave is next sought to insert the following new

paragraph 33:-

"33.

With respect to the sub-contracts and items of work listed below:-

(a) the cross-applicant provided or

procured the provision of materials and/or

labour pursuant to schedule of rates
sub-contracts;

(b) the cross-applicant has claimed the
following sums pursuant to those schedule of
rates sub-contracts:-"

Particulars are then given of six sub-contracts showing in

respect of each one an "approximate original value" and a
"total amount claimed". Then by sub-paragraph (c) it is
proposed to allege:-

. . . .

(c) the cross-applicant in fact provided or

procured the provision of materials and

labour to the value and extent of:-"
Then follow more particulars of the same six sub-contracts ascribing to each an amount said to represent the "value of labour and materials supplied". It is then sought to contend by sub-paragraph 33(d) that:-
the cross-respondent:-
(i) is entitled, to set-off the difference

between the amount already paid to the

cross-applicant and the amount properly

payable, against the cross-applicant's
cross-claim;
(ii) is not liable in respect of any further
sum. "
This proposed amendment seeks to go behind admitted

approved variations but does not disclose the basis of the
alleged entitlement to do that. Moreover, details have not

been provided as to how it is said that the schedules of
rates in the relevant sub-contracts have been misapplied to

the work in question, if that is what it is intended to
allege by this proposed new paragraph. Leave to insert it is
therefore refused.

It is next proposed to insert the following three new

paragraphs alleging breaches by WIQ of a duty of care
described differently from that pleaded in the existing
paragraph 14(c)(v) and (vi) and the proposed new paragraph
23:-

.

. . . .

- 49 -

"34.
It was a term of the agreement, pursuant to
clause 6.03 or alternatively implied by operation
of law, that the cross-applicant would exercise
due care and skill in the co-ordination and
execution of all construction means, methods,

techniques, sequences and procedures for the
performance of the works.

35. In breach the said of term the

cross-applicant has failed to exercise due care and skill in the co-ordination and execution of

all construction means, methods, techniques,
sequences and procedures for the performance of
the works.

36. Claims in respect of the items of work

listed below were incurred by or as a consequence

of the said breach of duty."

Particulars appended to the proposed new paragraph 36 s ecify

some thirteen items of work allegedly necessitated by

insufficient c -ordination or o of the work of

sub-contractors. A money amount is indicated in respect of
only three of those items, but it is alleged in the proposed
new paragraph 37 that:-

"In the premises the cross-respondent is not

liable for those amounts et out in the
particulars to paragraph 36."

For purposes of illustration I set out the first four items of particulars to the proposed new paragraph

36:-

"V06/38 Tom Pearson Inv. 20439; 21191; 21059;

20050; 19673; 19725; 19726; 20355;

20457; 20501; 20663; 20684; 20675;
20674; 21028
Value of work $12,436.26

V0 15/12
Item 7 ECP Variatin 70 lowering ceiling grid to accommodate A/C ducts
Value of work ($778.00)

V015/15

Item 2 ECP Variation 97 A/C Ducts replaced
Value of work ($865.00)

V034/15

Item 1 Extra ihstal duct work incurred by insufficient

cost

o

refabricate

and

co-ordination Environ of G y and
construction work."

I consider that, like the particulars discussed at p.

those distinguish facts said to constitute breaches of the alleged particulars embarrassingly fail to

obligation to exercise due care and skill from the
consequences of those breaches. The particulars are also
insufficient in that some fail to identify at all the alleged
lack of co-ordination and others fail to indicate which

trades were not co-ordinated sufficienly or at all.
37 above,

I shall consider a further application to amend to

raise the issues attempted to be identified in the proposed
new paragraphs 34 to 37, if the amendment is reformulated to
overcome these objections. However, the present application

for leave to amend by inserting those paragraphs is refused.

Caboolture Park next seeks to add new paragraph 38 in

these terms:-

"38. Further or alternatively in the case of

those i tems listed below, which the

cross-claimant claimed had against the
cross-respondent, the cross-respondent alleges
that:

.

. .

- 51 -

S

.

(a) the items of work were not within the
scope of the works to be undertaken by
the subcontractor who performed those
items of work;
(b) the items of work were within the scope
of works of the subcontractor set out
in the column marked 'subcontractor to
be back charged' hereunder."

About three pages of particulars are then given indicating a
total amount which allegedly should have been charged to
other sub-contractors of $98,225.00. Of that sum, $56,380.30
is referable to work detailed in variation orders numbered
42/7, 42/9, 42/10, 42/16, 42/20 and 42/21 undertaken by a
sub-contractor named Walker. It is indicated only that the

amount of $56,380.30 should have been backcharged to
"various" other sub-contractors.

It is then contended in proposed new paragraph 39

that:-

"In the premises the cross-respondent is not
liable for the amounts set out in the particulars
to paragraph 38."

In my view, paragraphs 38 and 39 are deficient because they do not allege that Caboolture Park has paid or accepted

liability to pay the sub-contractor who actually performed

the work. Nor do they indicate that a claim has been made by
WIQ on the assumption that the sub-contractor, who should

have performed the work but omitted to do so, remained

entitled to be paid for it. In the light of these

deficiencies, I refuse leave to amend the answer to WIQ's
cross-claim by inserting the proposed new paragraphs 38 and

It is then sought by proposed new paragraph 40 to rely

as follows on compromises between WIQ and certain of its
sub-contractors of their claims for moneys unpaid in respect
of work done in the construction of the Caboolture Park
shopping centre:-

"40. (a) The cross-applicant has entered into
agreements with each of the sub-contractors
listed below:-
Eagle Concrete Services Pty Ltd
Opat Decorating Services (Queensland)
Pty Ltd
Naturform Pty Ltd
C.W. Norris & Co. Pty Ltd
Fred Pazotti Pty Ltd
Profile Roofing Pty Ltd
Environ Mechanical Services Pty Ltd
Gay Holdings Pty Ltd

F.F.E. Group (Qld) Pty Ltd
East Coast Plastering Pty Ltd

(b) by each of the said agreements the
cross-applicant has:-

(i) compromised the sub-contractor's

claim against the cross-applicant in
this action;

(ii) consented to judgment by the

sub-contractor the against
cross-applicant in a specified sum;
(iii) agreed with the sub-contractor

that the sub-contractor will not

enforce judgment for a sum greater than
a further and lesser specified sum;

(c) in the premises the loss and damage (if

any) of the cross-applicant is limited to
the extent and in the manner set out in the
said agreements;
(d) the cross-respondent will refer to the
said agreements for their full terms, true
meaning and effect."

I indicated in the course of argument certain

reservations about the efficacy of that paragraph to raise a

real issue between W I Q and Caboolture Park. However, M r Perry
indicated that he would not press for leave to insert it in its present form so it is unnecessary now to say more about it.
The draft amended reply and answer as proposed to be

further amended then concludes with following e
paragraph:-

"41.
Save as aforesaid and excepting those items
of work expressly admitted in the Scott Schedule
delivered herein by the cross-respondent:-
(a) denies that the amounts and items of
work claimed pursuant to paragraphs 30, 31
and 32 of the defence and cross-claim are

properly claimable pursuant o clauses
4.03.03 and 10.27.03 of the said agreement;

(b) denies that the amounts claimed

represent a fair and reasonable value,

pursuant to clause 10.18 or otherwise, for
the items or work referred to therein."

It is not clear whether this paragraph is intended

merely to summarise the specific denials contained in the
previous paragraphs or to add something to them. If it

reflects the latter intention it offends against 0.11 r.18

because the basis on which it is alleged that the amounts

claimed pursuant to paragraphs 30, 31 and 32 of WIQ's defence
and cross-claim are not properly claimable or are in excess

of the fair and reasonable value of the work involved. It

.

- 54 -

also seems that this plea is inconsistent with the partial admission in paragraph 14(a) of Caboolture Park's reply and answer reproduced at pp. 9-10 of these reasons. I refuse

leave to insert a new paragraph in terms of the proposed
paragraph 41.

Finally, it is sought to attach to the amended pleading

a counterclaim expressed as follows:-
"AND BY WAY OF COUNTERCLAIM

42. The cross-respondent repeats and relies on
paragraphs 17 to 39 hereof.

43. The cross-respondent claims against the

cross-applicant those sums set out in paragraphs
23(c) and 33(d) hereof.
44. The cross-respondent will seek to set-off

against the cross-applicant's claim those amounts
set out in paragraphs 23(c) and 33(d) hereof."

Because I have refused to allow the insertion of the proposed new paragraph 33, only a pleading in the form of the

proposed paragraph 23(c), if an amendment incorporating it is
ultimately allowed, can support the proposed counterclaim.
The claim to set off the amount of $18,086 specified in that
proposed new sub-paragraph is sufficiently pleaded in the

proposed paragraph 23(e) without the need for a separate
counterclaim. I therefore refuse leave to insert the proposed
new paragraphs 42, 43 and 4 4 .

I shall hear Counsel on the directions which should continued hearing of this litigation. Caboolture Park must pay WIQ's costs of and incidental to the motion on notice

be

given in the light of these reasons to facilitate the

dated 17 October 1988 and any of WIQ’s costs thrown away as

result of any amendment to the reply and answer to

cross-claim which may later be made in response to one or
more of the invitations given in these reasons.
I certify that this and the preceding
fifty-four (54) pages are a true copy
of the Reasons for Judgment herein of
his Honour Mr Justice Ryan.
/ p ~ L - l C + ( L 5
Associate

Dated: 22 C k . % ’ - k d ,?.&’>

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Citations

Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd [1988] FCA 648

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Horton v Jones [1935] HCA 7

3VtGNSLAND DISTRICT REGISTRY	)	N o . G196 of 1986
1
OBNERAL DIVISION	1

QUEENSLAND DISTRICT REGISTRY	)	No. G198 of 1986
1
GENERAL DIVISION	)

BETWEEN:	CABOOLTURE	PARK	SHOPPING
CENTRE PTY. LTD. (Applicant)
AND :	WHITE INDUSTRIES (QLD.)
-	PTY. LTD. (Respondent)

AND :	CABOOLTURE PARK SHOPPING
-	CENTRE PTY. LTD. (First Cross-Respondent)

the allegation that the same term is implied by operation	of
law, or arises by necessary implication from the express

Jones (No 2) (1939) 39 S.R.	(N.S.W.)	305 per Jordan C.J.	at
309-310.

Paragraph 30 of WIQ's	cross-claim is in these terms:-
"In addition to the amount mentioned	in paragraph

and	owing	by	the	Cross-Respondent	the	o
carried	out	by	the	Cross-Claimant	by	its

(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

As a consequence	of the Cross-Applicant's said
negligence,	the following variation claims by
Subcontractors have been incurred which would	n t
otherwise have been incurred:-

(c) variation	claim No. 42/21 only so far
as it relates	to making good of certain
works.
(d) variation	claim No. 45/114.
(e) variation	claim NO. 45/223.
(f) variation	claim No. 15/11.
(g) variation	claim NO. 35/42.

( h )	variation	claim No. 18/04.
(i) Item NO.	4 of variation claim	No.
36/05.
( j )	variation	claim No. 21/11.

(k) variation	claim No. 06/18.
(1) variation	claim No. 10/01.
(m) variation	claim No. 11/05.
(n) variation	claim No. 15/01.
( 0 ) variation	claim No 15/06.
(p) variation	claim No 16/01.

Caboolture Park's	architect under the head contract, and
which are not listed in the particulars to paragraph 30	of
WIQ's	cross-claim. Thus it is not open to say of those
variation orders, as is done in the body	of paragraph 14(c)

31, 32, 33, 34 and	36	of the Cross-Claim, the
Cross-Respondent:-

(a) admits and	alleges that moneys became
due and payable	by it to the Cross-Claimant,

and	Better	particulars	to	the	Amended
Statement	of	Claim	delivered	by	the

variations to a net value of $2,475,658.93.	Consequently,
paragraph 14(a) of Caboolture	Park's amended reply and answer
is an admission that it is indebted to WIQ	in that sum in

indebtedness under	a contract, and still counterclaim in tort
by alleging that part of that indebtedness was incurred as	a
result of the negligence of the other party.	fioreover, of

[1988] FCA 648

28 Oct 1988

not listed in the further and better particulars of paragraph
15 of the amended statement of claim as incorporated	by

reference in paragraph 14(a)	of	the reply and answer to
cross-claim.

particularized.	A related vice is that no attempt has been
made to distribute the five	allegations of negligence in the
body of that sub-sub-paragraph between	the various variation

failing to prepare, amend	or adhere to a detailed
construction programme;

"The cross-applicant has claimed,	or allowed to be
claimed variations which related	to those works,
excluding variations, which were	to be performed

particular, Clause 6.01 thereof), and further	or
alternatively it was the usual practice within

necessary incident	of the execution of the
backfilling work referred to above	- provision
of necessary equipment to be	at subcontractors

-	backfilling refer comments above
- excavation - a detailed	excavation

-	gatic grates refer Coles spec	ifica	tion 85003	3.
cl. C13, clauses A20, A27, C	,l, CE	i, D3

"... all of the items set out through to page 25	are approved and paid for, but my client alleges
although there has been certification it has paid money and, therefore, suffered a loss in circumstances where the cost was incurred through the negligence of WIQ, and we are entitled to set off that sum in those circumstances, and, again,
submit the fact of an architect's certification is not fatal to a claim in tort.
The implementation of the contractual provisions relating to approval and certification do not deny a tortious claim. It may be different in a contractual sense, which is why in the contractual parts of this pleading there is no reference to approved variations."