Crea v Bedrock Construction and Development Pty Ltd; Bedrock Construction and Development Pty Ltd v Crea - [2020] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CREA v BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD; BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD v CREA & ANOR
[2020] SADC 124
Judgment of His Honour Judge O'Sullivan
21 August 2020
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - VARIATIONS
The plaintiff and first defendant by cross-claim (“Mr Crea”) entered into a Contract ("Contract") with the defendant and plaintiff by cross-claim (“Bedrock”) for Bedrock to fit out a new restaurant in Morphett Street, Adelaide.
The Date for Practical Completion under the Contract was 12 March 2016. On 22 April 2016, Mr Crea took possession of the restaurant, at which time the defendant was still carrying out work. On 19 May 2016, the Architect gave notice on behalf of Mr Crea terminating the Contract.
On 23 May 2016, Bedrock issued a “Final Claim and Invoice” dated 20 May 2016.
Mr Crea issued proceedings alleging the work carried out by Bedrock was defective, thereby breaching the Contract, or alternatively its duty of care owed to Mr Crea.
By cross-claim, Bedrock claims the sum of $103,144.80 (incl GST) for unpaid progress claims, Variations and delay costs. It joins the second defendant by cross-claim (“C & N Group”) who at all times owned the business name and operated the restaurant. Mr Crea is the sole director and shareholder of C & N Group.
On 7 February 2019, the Court referred a number of issues for determination to an Arbitrator. In her Award, the Arbitrator determined the cost of rectification of defects and incomplete work is $103,396.70 (excluding GST). The Arbitrator did not determine if Bedrock was liable for those costs.
Bedrock opposes the Court adopting the Award on a number of grounds including the reasonableness of incurring rectification costs within the meaning of Bellgrove v Eldridge.
Questions of the effect of non-compliance with the contractual procedure for claiming Variations and delay costs; the right of an Owner to prohibit the Contractor from accessing the Site to carry out rectification work and to complete the Works; the reasonableness of carrying out rectification work; and the entitlement of Bedrock to recover the cost of work performed outside of the contractual regime.
Held:
1. Judgment for the plaintiff on its claim for rectification costs in the sum of $105,159.67 (incl GST).
2. Judgment for the defendant on its cross-claim for the balance due under progress claims 1-4, Variations and delay costs in the sum of $83,641.93 (incl GST).
3. The defendant's cross-claim against C & N Group (Aust) Pty Ltd is dismissed.
District Court Act 1991 (SA) s 33; District Court Rules 2006 (SA), referred to.
Bellgrove v Eldridge [1954] 90 CLR 613; Peninsula Balmain v Abigroup Contractors Pty Ltd [2002] NSWCA 211 [50]; Liebe v Molloy (1906) 4 CLR 347; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No.3] [2014] WASC 162; Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 [26]; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1998) 164 CLR 662; Lumbers & Anor v W Cook Builders Pty Ltd (In liq) (2008) 232 CLR 635; Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161, 166; W Cook Building Pty Ltd (In liq) v Lumbers (2007) 96 SASR 406; Angelopoulos v Sabatino (1995) 65 SASR 1; Mann v Paterson Constructions Pty Ltd [2019] HCA 32; SC Taverner and Co Ltd v Glamorgan County Council (1940) 164 LT 357; Sabemo Pty Ltd v De Groot Unreported judgment, New South Wales, no. 50195 of 1990, BC9102171; Brooking on Building Contracts Cremean, Whitten and Sharkey (LexisNexis, 6th ed, 2019) 205-207 [9.9] ; Goff & Jones: The Law of Unjust Enrichment (8th ed, 2011) 453-454 [17-03]; W&R Pty Ltd v Birdseye [2008] SASC 321 [73]; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; Concut Pty Ltd v Worrell (2000) 75 ALJR 312; Electricity Generation Corporation v Woodside Energy Ltd & Ors (2014) 251 CLR 640, 656 [35]; Browne v Dunn (1893) 6 R 67; Reid v Kerr (1974) 9 SASR 367; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; Stone v Chappel [2017] 128 SASR 165; Ruxley Electronics & Constructions Ltd v Forsyth [1996] AC 344; De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28; Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361; Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253; Willshee v Westcourt Ltd [2009] WASCA 87; Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] 94 NSWLR 108; Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067; Built Environs Pty Ltd v Saunders International Limited [2012] SASC 111; Architectural Installation Services Ltdv James Gibbons Windows Ltd (1989) 46 BLR 91; Stocznia Gdyni SA v Gearbulk Holdings Ltd [2010] QB 27, considered.

CREA v BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD; BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD v CREA & ANOR
[2020] SADC 124
Contents
Contents
Introduction
The pleaded cases
Plaintiff’s case
Contract documents
Breach of Contract
Breach of Duty of Care
Loss claimed

Bedrock’s cross-claim
Procedural history
Award
Objections to the Award
Tables of Disputes by Topics

Tendered Documents
Overview of the Contract
Date for Practical Completion
Claims
Defects liability period

Factual Background
Contract Execution date

Witnesses
Mr Anthony Crea
Mr Ryan Genesin
Mr James Henderson
Issues
Issues (g), (h) and (i)
Termination of the Contract
Certificate of Defects
Certificate for payment

Variations
Variations – Pleadings
Variations – General Principles
The Meaning of the Word “Extras”

Variations - Contractual regime
Architect’s instruction
Contractor requests a Variation
Official document

Claims
Consideration of the Variations and Claims procedure
Bedrock’s final tax invoice served 23 May 2016

Browne v Dunn
Variation 1 – Supply and Install Boxing Out of Column & Finish with BT01 – North eastern corner. REF: Rev C1-C2 (Plan Ref: ID1.3’s) - $600 (excl GST)
Variation 3 – Additional Installation of 2 L08 – Light fitting to the Northern wedge wall. Light fittings. REF: Rev C1-C2 (Plan Ref: ID2.8.1’s) - $300 (excl GST)
Variation 4 – Supply & Install Finish to Column - Southern wall. REF: Rev C1-C2 (Plan Ref: ID1.6a) - $170 (excl GST)
Variation 5 – Supply and Installation of Colourbond Flashings to Wedge Walls Rev C1-C2, (Plan Ref: ID1.7a & ID1.7b) – Genesin instruction – max flat plate size too small - $590 (excl GST)
Variation 6 – Supply & Install Extra Grille to Internal Wall above Front Door (Architect & Owner Direction) - $650 (excl GST)
Variation 7 – Installation of 2 x New L01 Light Fittings – FOH entry. REF: Rev C1-C2 (Plan Ref: ID1.7a) - $300 (excl GST)
Variation 8 – Hanging Client’s Overhead Shelf & Fitting 2* Heat Lamps - $580 (excl GST)
Variation 9 – Supply and Install Hold Open Door Closer – FOH entry door. Rev C1-C2 (Plan Ref: ID2.2.3 & ID2.2.5 – $450 (excl GST)
Variation 10 – Extra Render to Northern Wall previously Painted Finish - $570 (excl GST)
Variation 11 – Supply and Install Fire Signage: Extinguishers and Blankets - $950 (excl GST)
Variation 12 – Wallbridge & Gilbert Invoice SA116331 – Structural Design for Doors - $1,573 (excl GST)
Variation 13 – Supply & Install of Extra Floor Wastes/ IP (Inspection Point) Covers to Kitchen: Bar & Pizza Area - $2,400 (excl GST)
Variation 14 – Removal & Relaying of Faulty Supplied Bricks - $1,450 (excl GST)
Variation 15 – Timber Studs & Steel Sleeves for Bar Supports – Not Shown on Deli Bar - $1,500 (excl GST)
Variation 16 – Finalisation of Cushion Material Selection – Architects Decision - $925 (excl GST)
Variation 17 – Cutting & Delivery of Completion Bricks - $6,000 (excl GST)
Variation 18 – Trims to Walls & Doors – To Correct Existing Floor Level Issue (+25mm) - $1,500 (excl GST)
Variation 19 – Floor Levelling & Extra Infill in Bar Area etc. – Over and Above PC sum – $1,500 (excl GST)
Variation 20 – Coolroom BRC Requirements - $654.00 (excl GST)
Variation 21 – Prolongation Claim - $30,852 (excl GST)
Variation 22 – Change on Kitchen Window Frameless Glass Window from 6mm to 10mm Toughened - $780 (excl GST)
Variation 23 – Extra Plumbing Scope; Installing Coffee Machine: Extra Icemaker: Client Supplied Kitchen Equipment (Water & Gas) - $3,700 (excl GST)

Conclusion on Variations
Prolongation claim - $30,852 (claimed as Variation 21)
Delay costs
The Prolongation Claim
Delaying events
Item 1 – Latent conditions
Item 2 - Pizza oven - delay in the delivery of the pizza wood oven
Item 3 - The design of the structural steel
Item 4 – Addition of cleaner’s sinks & associated work
Item 5 – Brick cutting Variation

Conclusion
Defects
Bellgrove v Eldridge
Challenges and adjustments to the Arbitrator’s Award
Revision A Defects List dated 12 April 2016
Revision B Defects List issued 20 April 2016
The 3 May 2016 meeting and the revision C defects list
Access to trades
2 May 2016
Mr Henderson’s evidence
Mr Crea’s evidence
Mr Genesin’s evidence

9 May 2016
Mr Henderson’s evidence
Mr Crea’s evidence
Mr Genesin’s evidence

Consideration
Bedrock’s right to carry out rectification work
Did Mr Crea act reasonably in prohibiting Bedrock from accessing the restaurant

Tables of Disputes by Topics
Challenges to the adoption of the Arbitrator’s Award – four specific items – Table 1
Arbitrator’s Award - Items 2.25 and 2.26 – Channel for light fitting around the bar not as documented - $6,612.50 (excl GST)
Arbitrator’s Award - Item 3.22 – Waterproof planter boxes - $2,850 (excl GST)
Arbitrator’s Award - Item 5.14 – Set-out ceiling lights as documented - $1,930 (excl GST)
Arbitrator’s Award - Item 5.09 –– reinstall tap and soap dispenser as documented amended at the Arbitration to - Placement of taps not in accordance with plan - $5,415 (excl GST)

Design Defect – Table 2
Item 1.20 – Incorrect door closer to door D.02 installed -$750 (excl GST)
Item 2.01 – Replace damaged bar stone top. Reinforced backing - $3,350 (excl GST)
Items 3.06 – Replace installed ceiling angle with that instructed by Mr Genesin - $3,254 (excl GST)
Item 3.14 – Cladding to brickwork junction not as detailed - $1,500 (excl GST)
Item 4.06 – Realign window to existing bulkhead as documented - $1,847.50 (excl GST)
Item 5.12 – Relocate floor drain from underside of partition - $3,160 (excl GST)
Item 3.22 – Re-grout and waterproof planter boxes - $2,850 (excl GST)

Opportunity to rectify the defects – Table 3
Instruction to Add, Vary or Alter – Table 4
Item 1.07 – Entry door D.01 black powder coated door pull and lock system/handles - $420 (excl GST)
Item 1.21 – Door closer to D.01 has not been installed - $640 (excl GST)
Item 2.10 – Incorrect light fittings installed - replace and make good - $1885 (excl GST)
Item 2.11 – Complete deli bar glazing as documented - $1,250 (excl GST)
Item 2.17 – Replace stonework to joinery items and install as documented - $14,152.50 (excl GST)
Item 4.13 – Stone Panel Joints not located as documented - $5,450 (excl GST)
Item 5.03 – Mitre tiled edge to hob as detailed - $985 (excl GST)
Item 5.19 – Replace power points with that specified - $205 (excl GST)
Item 4.48 – Relocate GPO to office as documented - $770 (excl GST)
939 Item 4.49 - Power point in a cupboard in the pizza servery area - $210 (excl GST) – Not in Tables of Disputes by Topics
Item 5.23 – Mirror above basin not installed to detail or code - $905 (excl GST)

Balance of the Award
Conclusion
ANNEXURE A – TABLES OF DISPUTES BY TOPICS
ANTHONY CREA
BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD (A.C.N. 155 392 742)
TABLE 1: CHALLENGES TO AWARD
TABLE 2: DESIGN DEFECTS AS PER AWARD
TABLE 3 – INCOMPLETE WORKS
TABLE 4: INSTRUCTION TO ADD, VARY OR ALTER AND BY WHOM
ANNEXURE B – SUMMARY OF DETERMINATIONS
ANNEXURE C – NOT REPRODUCED
Introduction

On a date between 22 December 2015 and 6 January 2016, the First plaintiff, Anthony Crea (“Mr Crea”) and the defendant, Bedrock Construction and Development Pty Ltd (“Bedrock”) entered into a Contract (“Contract”) for Bedrock to fit out a new restaurant (“Works”) in Morphett Street, Adelaide known as “Antica Pizzeria e Cucina” (“Site”).
At all times the business name “Antica Pizzeria e Cucina” was owned by C & N Group (Aust) Pty Ltd (“C & N”) which also operated the restaurant. Mr Crea is the sole director and shareholder of C & N.
The Contract was administered for Mr Crea by Mr Ryan Genesin (“Mr Genesin”) of the Interior Design firm, Genesin Studios. Mr Genesin, an interior designer, held the position of “Architect” under the Contract.[1]
[1] As with the use of other expressions such as “Superintendent” or “Engineer”, the use of the term “Architect” is a label given to a position and does not mean that the person or entity occupying that position has that qualification.
In these reasons, any reference to Mr Genesin is in his capacity as the “Architect” under the Contract unless otherwise stated.
Mr James Henderson (“Mr Henderson”) is the sole director and shareholder of Bedrock. The communications between Mr Crea and Mr Genesin and Bedrock were directed to Mr Henderson.
The Date for Practical Completion under the Contract was 12 March 2016. On 22 April 2016, the plaintiff took possession of the Site at which time the defendant was still carrying out work. On 19 May 2016, Mr Genesin on behalf of Mr Crea and in his role as Architect gave notice under the Contract terminating it.
Under cover of a letter from its solicitors dated 23 May 2016, Bedrock issued its “Final Claim and Invoice” dated 20 May 2016.[2]
[2] Exhibit D2.
On 16 March 2017, Mr Crea issued proceedings in this Court alleging the work carried out by Bedrock was defective and claiming the sum of $221,518 (incl GST) for breach of contract, alternatively breach of duty of care, by Bedrock. In the alternative, Mr Crea claims the sum of $221,518 (incl GST) pursuant to a certificate issued by Mr Genesin in his role as Architect on 7 March 2017.
Mr Crea also claimed the sum of $28,360.50 for loss of profit which he alleges C & N will suffer during a 24-day period said to be required for rectification work. In closing submissions, that claim was abandoned.[3]
[3] Plaintiff’s Written Submissions [1.6].
On or about 10 April 2017, Bedrock issued proceedings against both Mr Crea and C & N Group in the Magistrates Court in Action No. 1272 of 2017 claiming the sum of $88,879.88, apparently relying on its final tax invoice although that invoice is for $85,996.[4] That action was transferred to this Court, given Action number 715/17 and on 26 June 2017, a Master of this Court ordered that action be consolidated with this action, with the two actions to proceed thereafter as one action. The former Magistrates Court Action became the cross-claim.[5]
[4] Exhibit D2.
[5] Master’s orders, dated 26 June 2017 [1]-[5].
Although named as a party in the cross-claim, C & N Group is a non-contracting party and played no role in this matter.
After some confusion the defendant now cross-claims $103,144.80 (incl GST).[6]
The pleaded cases
[6] See emails between the Court and the parties dated 16 March 2020, 18 March 2020, 7 May 2020, 11 May 2020.
Plaintiff’s case
The plaintiff pleads that on or about 22 December 2015, Mr Crea and Bedrock entered into a written contract for Bedrock to carry out the Works at the Site. The defendant pleads the Contract was executed on 6 January 2016.[7]
[7] Defence [4.1].
The form of the Contract was “Simple Works Contract – ABIC SW-2008”.
Paragraphs [4]-[8] of the Statement of Claim plead various terms of the Contract. I deal with some of the Contract terms below and with specific terms when considering specific claims.
Contract documents
It is alleged the following documents (“contract documents”) formed part of the Contract in addition to the General Conditions of Contract:
i.Construction drawings identified in Schedule 3 to the Contract;[8]
ii.Reverberation Time Assessment prepared by Sonus Pty Ltd dated November 2015;
iii.Appliance Schedule (revision C1) dated 19 December 2015;
iv.Finishes and Hardware Schedule (revision C1) dated 19 December 2015;
v.Lighting Schedule (revision C1) dated 19 December 2015;
vi.Sanitary Schedule (revision C1) dated 19 December 2015; and
vii.Revised Construction drawings (revision C2).
[8] Clause B2.1(e).
The defendant admits each of those documents formed part of the Contact apart from the reverberation time assessment which it does not admit and pleads that it was never provided with the document.[9] Nothing turns on that document. The defendant also does not admit that the revised construction drawings formed part of the contract documents as they were not provided to Bedrock prior to or at the time the Contract was executed.[10]
[9] Defence [4.5.3].
[10] Defence [4.5.8].
It is common for drawings to be revised during the course of a construction contract. There does not appear to be any issue as to whether a particular revised drawing issued by the Architect comprised a contract document or not. To the extent that during the Works the Architect issued revised drawings, I find the revised drawings form part of the contract documents.
Breach of Contract
Mr Crea alleges that in breach of the Contract, Bedrock has not performed the Works in accordance with the Contract and in particular the drawings, the instructions of the Architect, Australian Standards and the Building Code of Australia.[11]
[11] Statement of Claim [12].
He continues by alleging that Bedrock was in further breach of the Contract in that it failed to:
i.Diligently carry out and complete the Works to the standard set out in the Contract contrary to clause A2.1(b);
ii.Keep the Site and any areas affected by the Works clean and tidy at all times contrary to clause A2.1(c); and
iii.Comply with all instructions issued under the Contract by the Architect, contrary to clause A2.1(d).
The consequence of these breaches is alleged to be that the Works are “substantially” defective.[12]
[12] Statement of Claim [15].
Mr Crea then alleges that:
i.Defects were notified to Bedrock by list of defects dated 13 April 2016 and that Bedrock carried out some rectification work but that it was performed incompetently such that some of the defects were not remedied;[13]
ii.A final defects list was delivered to the defendant on 13 May 2016 (final defects notice) which Bedrock has not attended to;[14] and
iii.Bedrock has refused or neglected to remedy the defects contained in the final defects notice,[15]
[13] Statement of Claim [18].
[14] Statement of Claim [20], [21].
[15] Statement of Claim [21].
such that he is entitled to engage other contractors to correct the defects pursuant to clause M12 of the Contract.[16]
Breach of Duty of Care
[16] Statement of Claim [22].
Mr Crea alleges that Bedrock owed a duty of care to him both under the Contract and at Common Law to undertake the Works in a competent and workmanlike manner, that it breached that duty of care such that the Works are “substantially” defective and have not been carried out to a standard reasonably expected of a competent builder. He continues that he is ‘required to rectify the Works and has suffered loss’ as a result of Bedrock’s negligence.[17]
Loss claimed
[17] Statement of Claim [30]-[33].
Mr Crea claims the costs of rectifying the defects in the sum of $257,514.40 (incl GST) as particularised in Schedule 1 to the Statement of Claim.[18]
[18] Statement of Claim [23].

Mr Crea also pleads what appears to be an alternative claim to an entitlement to monies due totalling $201,380 (excl GST), relying on a “Certificate of Defects” dated 28 June 2016 and alleged to be issued by Mr Genesin to Bedrock on 22 July 2016 pursuant to clause N4 of the Contract (which deals with progress claims).[19]
[19] Statement of Claim [24]; Exhibit P1, vol 2, tab 3, p 547; Exhibit D5.
Mr Crea also pleads that on 7 March 2017, Mr Genesin issued Bedrock with a “Certificate for Payment” pursuant to clause N4 for rectification costs in the sum of $201,380 (excl GST).[20] That document was not tendered and there is no apparent reliance on it. Nonetheless for completeness I will deal with it later in these reasons.
[20] Statement of Claim [28].
Bedrock’s cross-claim
The constituent parts of Bedrock’s cross-claim are as follows:

i.     The sum due under progress claims 1-4, subject to any claim the plaintiff has

$46,735 (incl GST);

ii.    Variation claims

$29,856.20

iii.     Prolongation claim[21]

$30,852

iv.   Less credit for signage

$(3,925)

v.    Error in prolongation claim

$(373.40)

vi.             Total

$103,144.80 (incl GST)

[21] Described as Variation 21.

In the cross-claim, Bedrock alleges a contractual relationship with both Mr Crea and C & N and bases its claim against both Mr Crea and C & N in contract.
In its defence to Bedrock’s cross-claim, C & N pleads it has no interest in the proceedings.[22]
[22] Defence to Counter-Claim [6].
I find C & N had no contractual relationship with Bedrock, and to the extent Bedrock claims against C & N in contract, I dismiss that part of the cross-claim.
Bedrock submits that in his defence to the cross-claim Mr Crea has admitted that moneys are due to it.[23] That is wrong. The admission in the defence to cross-claim relates to that part of the pleading headed ‘Basis of causes of action and other material matters’. Bedrock’s submission wrongly attributes Mr Crea’s admission to a different part of its cross-claim headed 'Background and uncontroversial matters” to which Mr Crea and C & N do not plead because the allegations are repeated in different paragraphs in part 2 of the cross-claim.
[23] Defendant’s Written Opening Submissions, 9 December 2019 [10]-[15].
There is no dispute that subject to any adjustment for claim made by the plaintiff, Bedrock is entitled to the balance of money due under progress claims 1-4 in the sum of $46,735 (incl GST).
Procedural history
The plaintiff’s Statement of Claim lists 85 defects which are set out in a Scott Schedule.
On 7 February 2019,[24] pursuant to s 33 of the District Court Act 1991 and r 208 of the District Court Rules 2006, the Court referred the following issues for determination to Ms Lolita Mohyla, as Arbitrator:
i.Whether or not each alleged defect complained of by the plaintiff in the Scott Schedule is a defect and/or incomplete work;
ii.The reasonable cost to rectify each item of defective work and/or incomplete work;
iii.If the alleged defect or incomplete work in question is an item in relation to which there is an allegation of an instruction or a direction in the Scott Schedule, the Arbitrator is to:
a. determine whether or not the item in question is a defect or incomplete work per se; but
b. note the allegation of a direction and/or instruction with the question of whether or not an instruction or direction was given to be determined by the Court; and
iv.If the alleged defect or incomplete work in question is an item in relation to which there is an allegation that the cause of the alleged defect or incomplete work is design related, the Arbitrator is to determine if the alleged defect or incomplete work is a result of defective design or not.
[24] Orders 3-5.
Award
On 10 July 2019, the Arbitrator delivered her Award (“Award”) in which she determined the cost of rectification of defects and incomplete work is $103,396.70 (excl GST). The Arbitrator did not determine if Bedrock was liable for those costs.
Objections to the Award
Pursuant to the s 33(4) of the District Court Act 1991, the Court will, unless good reason is shown to the contrary, adopt the Award of the Arbitrator as its judgment on the action or issues referred.
Bedrock submits it is not liable for the entirety of the rectification cost of $103,396.70 (excl GST).
Tables of Disputes by Topics
At the commencement of the trial, I directed Bedrock to produce a table of disputed topics arising out of the Award. That table is titled “Tables of Disputes by Topics” and identified five disputed topics. A copy of the Tables of Disputes by Topics is at Annexure A to these reasons. As will become apparent, there are a number of overlapping issues with some items the subject of numerous complaints.
First, Bedrock objects to the adoption of the Award as part of the judgment of the Court in relation to four specific items on the basis there is good reason not to do so;[25]
[25] Table of Disputes by Topics – Table 1. Bedrock initially identified five challenges but withdrew the challenge to item 2.01 in its Written Opening Submissions (p 7).
Second, Bedrock alleges that some of the defects were a result of defective design.[26] Ms Mohyla has determined whether or not any particular defect is a result of defective design where that issue was raised before her. Bedrock submits that in those cases where the defect is wholly a result of defective design, it is not liable for the rectification costs such that the reasonable cost to rectify that item as determined by Ms Mohyla has to be deducted from the sum of $103,396.70. In circumstances where the defect is partly as a result of defective design and partly a result of some other matter then it is for the Court to determine the appropriate deduction (if any);
[26] Table of Disputes by Topics – Table 2.
Third, Bedrock alleges some of the defects are incomplete work and it was not given the opportunity to complete the Works;[27]
[27] Ibid, Table 3.
Fourth, Bedrock alleges that some of the defects were a result of an instruction or a direction from either the Architect or Mr Crea. That question has been left to the Court to decide. If the Court determines that a matter which Ms Mohyla has found is a defect is in fact the subject of an instruction from Mr Crea or the Architect then Bedrock submits that the reasonable cost to rectify that defect should be deducted from the sum of $103,396.70;[28]
[28] Ibid, Table 4.
Fifth, Bedrock alleges there are a number of defects (as opposed to incomplete works), and that it was denied the opportunity to rectify defects;[29]
[29] Ibid, Table 5.
Finally, woven into some of the disputed topics is the assertion that there are defects for which rectification work would be unreasonable as that term is understood in Bellgrove v Eldridge.[30]I deal with the question of reasonableness where it is raised specifically in relation to a limited number of defects.
[30] (1954) 90 CLR 613.
Depending on my finding as to whether there is good reason not to adopt Ms Mohyla’s determination on those items, be it in full or in part, will depend on whether or not adjustment needs to be made to the sum of $103,396.70.
A summary of the Arbitrator’s determinations is attached at Annexure B to these reasons with columns added to reflect my findings in relation to each item. The Arbitrator’s Award is attached at Annexure C to these reasons.
Tendered Documents
At the commencement of the trial, the plaintiff tendered six volumes of documents which were relied upon by both parties. Those six volumes were marked MFIP1.
At the end of the trial, I directed the parties to identify which of the documents contained within MFIP1 were relied upon. If not nominated, the document would not be received.
Documents not identified by either party have been removed from MFIP1 with the result that only identified documents have been received into evidence and MFIP1, with documents removed, was received as Exhibit P1.
Overview of the Contract
The Contract was entered into between Mr Crea as “Owner” and Bedrock as “Contractor”.
The Contract sum was $381,337 (incl GST).[31]
Date for Practical Completion
[31] Exhibit P1, vol 1, tab, 1, p 6, Contract Schedule 1, Item 4.
Item 22 of Schedule 1 to the Contract[32] records the Date for Practical Completion as 12 March. No year is identified however there is no dispute that it was 12 March 2016. Item 22 in Schedule 1 cross-references to clause M1 of the Contract which records the obligation on Bedrock to bring the Works to Practical Completion by the Date for Practical Completion.
[32] Ibid, p 7.
Practical Completion is defined the following terms:[33]
[33] Ibid, p 44. The definition of “practical completion” in section S of the Contract refers back to clause M1.
M1    Practical completion
1.    The contractor must bring the *works to *practical completion by the date for *practical completion shown in item 22 of schedule 1 as adjusted in accordance with this contract. The *works are at *practical completion when, in the reasonable opinion of the architect:
athey are substantially complete and any incomplete *necessary work or *defects remaining in the *works are of a minor nature and number, the completion or rectification of which is not practicable at the time and will not unreasonably affect occupation and use
ball commissioning tests in relation to the plant and equipment shown in item 23 of schedule 1 have been carried out successfully and
cany approvals required for occupation have been obtained from the *relevant authorities and copies of *official documents evidencing the approvals have been provided to the architect.
2.    Subject to clause M11, the owner takes possession of the *works at 4.00pm on the date the architect issues the notice of *practical completion.
Pursuant to clause M8,[34] if the owner takes possession of the Works before the Architect issues a Notice of Practical Completion, the Works are to be treated as having reached Practical Completion.
M8    Possession of the *works before *practical completion
1.     If the owner takes possession of the *works before the architect issues the notice of *practical completion, the *works are to be treated as having reached *practical completion within 5 *working days after being notified in writing that the owner has taken possession, unless clause M4 applies.
2.     If the owner takes possession of the *works before the architect issues the notice of *practical completion, the contractor may make a *claim to adjust the contract.
3.     The requirements for making a *claim to adjust the contract and the procedures to be followed are stated in section H.
[34] Ibid, p 45.
There is no dispute between the parties that Mr Crea took possession of the Site on or about 22 April 2016.
Claims
Section H of the Contract deals with “claims to adjust the contract”. That expression is defined in the definition section – section S - at the rear of the Contract as:
a claim made to the architect to adjust the *contract price (including *adjustment of time costs) or the date for *practical completion or both.
I deal with the contractual regime for making claims when dealing with the specific claims for Variations as well as for delay.
Defects liability period
Pursuant to Item 25 of Schedule 1,[35] there was a defects liability period of 6 months. Clause M13 provides the defects liability period commences to run from the Date of Practical Completion.[36]
[35] Ibid, p 9.
[36] Ibid, p 46.
As a consequence of Mr Crea taking possession of the Site on or about 22 April 2016, the defects liability period commenced to run on that date.
Factual Background
There are a number of facts which are not in dispute and I find that:
i.Bedrock commenced the Works on or about 7 January 2016;
ii.Mr Crea took possession of the Works on or about 22 April 2016;
iii.Mr Genesin was appointed to position of Architect pursuant to clause A6 and Item 2 of Schedule 1 to the Contract;
iv.The Date for Practical Completion under the Contract was 12 March 2016;[37]
[37] Clause M1, Item 22 of Schedule 1.
v.The Contract called for weekly progress payments.[38] Mr Crea made progress payments totalling $429,115, the last payment of $15,000 being made on 14 April 2016;[39]
[38] Clause N3, Item 26 of Schedule 1.
[39] Plaintiffs’ Opening Submissions [20].
vi.No Notice of Practical Completion was issued by the Architect;
vii.Defects were notified to Bedrock by defects lists issued by the Architect on three occasions. Those defects lists are dated 12 April 2016 (revision A),[40] 20 April 2016 (revision B),[41] and 13 May 2016 (revision C);[42]
[40] Exhibit P1, vol 3, tab 79, p 776.
[41] Exhibit P3, Exhibit P1, vol 2, tab 31, p 457.
[42] Exhibit P4.
viii.On 3 May 2016, the Architect and Mr Henderson attended at the Site to undertake an inspection and review of the progress and rectification of the defects;
ix.On 13 May 2016, the Architect issued the defendant with revision C defects list identifying the defects that were observed to exist at the time of the inspection on 3 May 2016;[43]
x.That revision C defects list was sent to Mr Henderson by Mr Genesin on 13 May 2016;[44] and
xi.The parties have agreed that:
1       Each of the witness sub-contractors Martin Cameron (painter) Frank Passalacqua (Joiner), Paolo Borghesan (stonemason and stone supplier) and Richard Kaesler were competent to carry out rectification works.
2       Each of the witness sub-contractors were willing to carry out the remedial work within their subcontract scope.
3       No point is taken as to the defendant’s failure to call sub-contractors.
Contract Execution date
[43] Exhibit P4.
[44] Ibid.
There is a difference between the parties as to the date the Contract was executed. On the evidence, I am unable to determine whether the Contract was executed on or about 22 December 2015 or 6 January 2016. I find that between 22 December 2015 and 6 January 2016, Mr Crea and Bedrock entered into the Contract.
Witnesses
The plaintiff called two witnesses: Mr Crea and Mr Genesin.
The defendant called Mr Henderson and Bedrock’s vinyl sub-contractor, Mr Neal.
I deal with the general aspects of each witness below but consider their evidence on the topics of Variations, delay (prolongation) and defects in more detail when I consider those topics.
Mr Anthony Crea
Mr Crea described himself as the proprietor of the business trading as “Antica Pizzeria and Cucina”. In fact, Mr Crea is the sole shareholder of C & N which is the name of the company that operates the restaurant.[45]
[45] T45.15-20, T46.17-24.
There are two venues trading under the name, “Antica Pizzeria and Cucina” one in Hyde Park, South Australia and the other in Morphett Street, Adelaide. In these reasons, whenever I refer to “the restaurant”, the “premises” or the “Site” I refer to the Morphett Street restaurant.
Mr Crea could not remember much of what occurred during the Contract. Given that the work occurred some four years prior, I am prepared to allow him some latitude as to what he does or does not recall, however I gained the impression that he was overly cautious such that he did not want to commit to a position. On occasions I formed the view he was being evasive.
Mr Crea said the restaurant has traded continuously since it commenced in April 2016,[46] and he and his wife are involved in the restaurant on a daily basis.[47]
[46] T37.20-22.
[47] T36.20-37.12.
The Contract has a number of prime cost items.[48] Mr Crea said in cross-examination that he could not recall any conversations with Mr Henderson over the Christmas break to the effect that Mr Henderson could not get hold of sub-contractors during that time[49] such that it was necessary to identify a number of prime cost items. Mr Crea was asked whether in early January 2016 he became alarmed at the cost of the project as a number of prime cost items became known to him. He said he did not recall that.[50] He agreed that in January 2016, he was under cost pressure at that time and that he gave an instruction to Mr Henderson and Mr Genesin that they were to attempt to save an amount of $50,000.[51]
[48] Exhibit P1, tab 1, p 18, sch 7; T58.12-17.
[49] T59.22-26.
[50] T62.1-13.
[51] T62.21-63.13.
He was cross-examined about whether he had a conversation with Mr Henderson on Site in or about January 2016 about whether he could save a $100,000 “budget blow out” but said he could not recall any such conversation. Having been shown an email sent 17 January 2016[52] from him to Mr Henderson and Mr Genesin, he agreed that although he did not have a specific memory of having a conversation with Mr Henderson about a “blow out” in his budget of $100,000, the email clearly shows that the project was going over budget.[53]
[52] Exhibit P1, vol 3, tab 65, p 743.
[53] T63.15-64.22.
Mr Crea agreed that as at 17 January 2016 he and Mr Henderson would see each other on Site probably once or twice a week and although he accepts that he would have had conversations with him he does not remember any conversations about budget matters.
I do not accept that Mr Crea did not have a recollection of a conversation with Mr Henderson concerning a “blow out” in Mr Crea’s budget in the order of $100,000 in or about January 2016. $100,000 is a significant sum in the context of a Contract for $381,337 and saving money must have been at the front of his mind.
Nevertheless, there is no dispute and I find that as at 17 January 2016 the plaintiff’s budget for the Works had “blown out” by a figure in the order of $100,000.
On the question of defects, Mr Crea said in evidence that if a matter had not been done in the way Mr Genesin had designed, then it should be a defect.[54] He said that the Arbitrator has found a number of defects in the work that was carried out[55] and that it is his and his wife’s intention to have the defects rectified.[56]
[54] T90.19-25.
[55] T37.23-27.
[56] T40.8-13.
Mr Crea was cross-examined about attempts by Mr Henderson to arrange trades to return to the restaurant to finish items over the period 22 April 2016 to 13 May 2016, however he said he was unable to remember and he would have advised Mr Henderson to liaise with Mr Genesin for anything that needed to be done.[57] The issue of defects was a significant issue for Mr Crea both before and after 22 April 2016, and one of the matters that arises in this litigation is the attempts by Bedrock to access the Site to carry out rectification.
[57] T75.16-33.
Mr Crea agreed that the construction period was a very tight timeframe and that he was speaking with Mr Henderson as well as Mr Genesin to get the restaurant finished in time. However he said he has no specific recollection of any of the conversations.[58] Whereas I accept he may well have had no specific recollection of any particular conversations, in my view Mr Crea was well aware of the issue of defects generally. I do not accept Mr Crea did not remember attempts by Bedrock to arrange trades to return to the restaurant to finish items. In my view, when saying he had no recollection of attempts by Bedrock to attend the premises he was being evasive.
[58] T76.6-77.11.
As to the issue of Variations, Mr Crea said he referred Mr Henderson to Mr Genesin to liaise with him in relation to anything to do with budgets or changes/ Variations.[59]
[59] T82.1-83.17.
Mr Crea said that because he had engaged an interior designer to design the Works and administer the Contract, he left it to Mr Genesin to deal with the budget and Variations. I accept Mr Crea’s evidence on this topic in relation to Variations as it is both understandable and logical that any questions about Variations should be referred to Mr Genesin, however, for reasons I set out below I do not accept that was always the case.

As to the budget, I gained the impression from Mr Crea that the question of the budget for the Works was at the forefront of his mind. Whereas I accept Mr Genesin was involved in considering the position of the budget for the Works as the Works proceeded, I do not accept Mr Crea left the question of the budget solely to Mr Genesin. I find Mr Crea was involved in relation to anything that impacted on the budget.
Mr Ryan Genesin
Mr Genesin is an interior designer and has worked in that profession for 16 years. He worked interstate and also overseas for a number of years before returning to Adelaide in 2008 where he established his business, Genesin Studio. In the course of that business he has worked on numerous houses, restaurants and hotels. He has received a number of awards in respect of his design work including Best Retail Store in Australia and Best Restaurant, as well as international awards.[60]
[60] T137.4-141.34.
He was the person named as “Architect” in the Contract and was responsible for the design and the fit-out work for the restaurant.[61] He did approximately 95% of the design personally.[62] He was also involved in supervising the work as the fit out was being done.[63] He said that the construction work on the restaurant commenced in early January 2016.[64]
[61] T141.35-38, T143.1-3.
[62] T143.10-14.
[63] T143.35-38.
[64] T144.19-24.
The position of “Architect” in this Contract as with the position of “Superintendent” in other Contracts involves a mixture of acting as the Principal’s or owner’s agent in some circumstances and as an independent certifier in others. The degree of impartiality required will vary according to the contract in question.
In this Contract, clause A4 provides:
A4     Obligations of the owner
1.      The owner must:
…
dappoint an architect to administer this contract and provide appropriate *contract documents for the *works, given the nature of the *works
eindemnify the contractor for any liability incurred by the contractor to a third party in respect of any default or negligence of the architect or any other consultant the owner engages in relation to the *works
f      issue instructions to the contractor only through the architect
…
Clause A6 of the Contract[65] provides that the Architect is to administer the Contract:
A6     Architect to administer contract
1.      The architect for the purpose of this contract is shown in item 2 of schedule 1.
2.      The architect is appointed to administer this contract on behalf of the owner and the owner warrants that the architect has authority to administer this contract.
3.      The architect is the owner’s agent for giving instructions to the contractor. However, in acting as assessor, valuer or certifier, the architect acts independently and not as the agent of the owner.
4.      The owner must ensure that the architect, in acting as assessor, valuer or certifier, complies with this contract and acts fairly and impartially, having regard to the interest of both the owner and the contractor. The owner must not compromise the architect’s independence in acting as assessor, valuer or certifier.
5.      The architect is not the Owner’s agent for giving or receiving notice under clause A8, section P and Section Q.
6.      …
[65] Ibid, p 22.
The obligation to act impartially does not apply to every function that a person filling the role of the Architect has under a contract. The position was succinctly put by the New South Wales Court of Appeal in Peninsula Balmain v Abigroup Contractors Pty Ltd:[66]
The authorities referred to by Mr. Douglas and Mr. Walker are not altogether clear as to whether a person in the position of a superintendent of a building contract is the owner’s agent in exercising all the functions of the superintendent. However, in my opinion the better view (supported by Perini, Dixon, Egan and London Borough of Merton, and not refuted by Sutcliffe) is that the superintendent is the owner’s agent in all matters only in a very loose sense, and that, when exercising certifying functions in respect of which the superintendent must act honestly and impartially, the superintendent is not acting as the owner’s agent, in the strict legal sense. In my opinion, this is confirmed by the consideration that the issue of a certificate by the superintendent does not bind the owner to any extent beyond what is prescribed by the building contract itself, so that the owner can challenge such certificates. If the superintendent was acting as the owner’s agent in the strict sense, the issue of the certificate would be an act done by the owner through its agent, which the owner could not then challenge.
[66] [2002] NSWCA 211 [50].
Mr Genesin accepted in cross-examination that he had an obligation to act fairly and impartially having interests of both the builder and the owner but did not do so.[67] The majority of Mr Genesin’s evidence related to Variations, prolongation and defects. The cross-examiner did not explore with Mr Genesin the occasions when he did not act impartially.
[67] T169.18-28.
Bedrock submitted that Mr Genesin’s concession as to his lack of impartiality goes to his credit.[68] I do not accept that submission. As I have noted, under the Contract there are occasions when Mr Genesin was required to act impartially and occasions when he was acting as Mr Crea’s agent. I consider Mr Genesin’s evidence against that background but overall I accept Mr Genesin as a truthful witness. That said, there were occasions when I consider he was defensive in his evidence, specifically in cases where his design was called into question as being defective. I bear that in mind when considering his evidence.
[68] T215.10-216.28.
Mr James Henderson
Mr Henderson graduated from the University of South Australia with a Bachelor of Construction, Management and Economics with Honours. After Graduation he worked as a contractor for Baulderstone Hornibrook between 2006 and 2007. He was engaged in a number of commercial projects where he contracted to tier 1 contractors both in South Australia, interstate and overseas.
I deal with his evidence in relation to Variations, prolongation and defects when I consider those specific claims, but overall I consider he was defensive in giving much of his evidence and as a result directed his evidence towards justifying his actions, which whilst understandable to an extent, in my view resulted in him engaging in reconstruction on occasions. I bear that in mind when considering his evidence.
Issues
The parties identified issues for determination.[69] Each party framed the issues differently but when taken together, the following issues arise:
[69] Attachment 1 to the Plaintiff’s Written Closing Submissions, dated 24 January 2020.
i.Whether an amount is due and owing to the defendant for work done including Variations, and prolongation and if so, how much.
ii.On the question of Variations, what is the effect of the alleged non-compliance by Bedrock with the contractual regime for claiming payment for Variations.
iii.On the question of defects:
a.    The challenges to the adoption of 4 items in the Arbitrator’s Award;
b.    Whether work was done in accordance with Site Instructions or directions such that if so, they are not defects;
c.    Whether work is defective because of design defects in whole or in part and the cost consequences of that;
d.    Whether the defendant has refused to return to rectify defects;
e.    Whether the defendant had a contractual right to rectify and complete incomplete work and the cost consequences of that; and
f.    Whether any rectification work falls within the unreasonableness exception within the meaning of Bellgrove v Eldridge[70] and if so, the cost consequences.
[70] [1954] 90 CLR 613, 616-619 per Dixon CJ, Webb and Taylor JJ.
To that list, I add further issues which are:
g.    The purported termination of the Contract by the Architect;
h.    The service of a “Certificate of defects” dated 28 June 2016,[71] served 22 July 2016 and the effect (if any) of that document; and
i.     Although not tendered, for completeness because it was pleaded, a “Certificate for payment”[72] dated 7 March 2017, and the effect (if any) of that document.
Issues (g), (h) and (i)
[71] Exhibit D5.
[72] Statement of Claim [28].
I deal first with issues (g), (h) and (i) above.
Termination of the Contract
A matter that is relevant to the question of Variations is the termination of the Contract by Mr Genesin giving notice to Bedrock on 19 May 2016 on behalf of Mr Crea. Each of the Variations claimed by Bedrock relates to work (with the exception of the prolongation claim which refers to a delay) that was done prior to 19 May 2016. As I have noted, the Variations were claimed by Bedrock on 23 May 2016.[73]
[73] Exhibit D2; Exhibit P1, vol 4, tab 100, p 912.
The notice of termination was given by the Architect and states that pursuant to clauses Q1 and Q2 of the Contract[74] the “Proprietor” has executed “their” right to terminate the Contract forthwith. A number of matters arise:
[74] Exhibit P1, vol 4, tab 100, pp 912-913.
First, neither of those provisions empower the Architect to terminate the Contract on behalf of the “owner” (not the “Proprietor”) and it is clear that the exercise of the power under clauses Q1 and Q2 is limited to the “owner”.
Second, clause A6.5[75] specifically provides that the Architect is not the owner’s agent for giving or receiving notices under section Q.
[75] Exhibit P1, vol 1, tab 1, p 22.
Third, the only right to terminate the Contract immediately is in circumstances of insolvency[76] and there is no suggestion of insolvency on the part of Bedrock.
[76] Clause Q2.
Fourth, in my view, clause Q1 is a code which must be followed. I find that it was not followed.
I find that the Contract was not validly terminated by Mr Genesin insofar as he purported to do so under the terms of the Contract.
That however is not the end of the matter. Even though I have found that Mr Genesin had no power under the Contract to terminate the Contract on behalf of Mr Crea, in my view the terms of the Contract do not exclude whether expressly or impliedly the right of a party to terminate the Contract at common law no matter the breach.[77] Further, there is nothing to prevent Mr Crea from acting through Mr Genesin as his disclosed agent to terminate the Contract at common law on the grounds not disclosed in the Notice given by Mr Genesin.[78]
[77] See Dennys, Raeside and Clay, Hudson's Building and Engineering Contracts (Sweet & Maxwell Ltd, 12th ed, 2010) 929; First and Ramsey, Keating on Construction Contracts (Sweet & Maxwell, 10th ed, 2016) [6-109], Architectural Installation Services Ltd v James Gibbons Windows Ltd (1989) 46 BLR 91; Stocznia Gdynia SA v Gearbulk Holdings Ltd [2010] QB 27, [18]-[19].
[78] W&R Pty Ltd v Birdseye [2008] SASC 321 [73]-[74]; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-378 per Dixon J; Concut Pty Ltd v Worrell (2000) 75 ALJR 312, [29], [42], [51].
Mr Genesin said that the decision by Mr Crea to terminate the Contract was based on his recommendation. He explained that the plaintiff could not get the job completed in terms of the finish that was required which resulted in his recommendation to get other trades in. He said that the workmanship was falling below a good standard and the main concern was that the work was never going to be completed. He described the relationship as not ‘ideal’ following a meeting on Site on 3 May 2016 (with which I deal below) and that the relationship with Mr Henderson was minimal and had deteriorated. He said that the restaurant was trading at the time Bedrock was doing rectification work.[79]
[79] T166.14-169.16.
Further, it is agreed between the parties that Mr Crea made a complaint to police on 15 May 2016, which resulted in an intervention order being issued against Mr Henderson.[80] I am not in a position to determine if the complaints or the intervention order were justified but the fact of one or the other, in my view, simply serves to confirm that the relationship between the parties had broken down completely and had become unworkable.
[80] Second Cross-claim [21]; Defence to cross-claim [21]; T492.20-498.16.
Bedrock takes no point that the Contract was unlawfully terminated. Although the defendant pleads in its defence the Contract was “unilaterally reputed” (sic repudiated) by the plaintiff, an allegation I do not accept, nonetheless the Bedrock subsequently confirmed no legal consequences flow from that pleading.[81]
[81] Email from the defendant’s counsel to chambers sent 21 April 2020 at 4.13pm.
Whereas the Notice of Termination, insofar as it purports to be a notice issued under the terms of the Contract, is of no effect, its contents serve to inform the basis of the termination of the Contract at common law. Based on those matters and the specific matters I have set out above, I am satisfied Mr Crea had good reason to terminate the Contract and that he did so by his agent, Mr Genesin, on 19 May 2016.
Notwithstanding that termination, the provisions of the Contract remain on foot for the purpose of regulating the parties’ rights insofar as those rights had already been acquired.[82]
Certificate of Defects[83]
[82] See McDonald vDennys Lascelles (1933) 48 CLR 457, 476-477 per Dixon J.
[83] Exhibit D5.
Mr Genesin was taken to Exhibit D5 which has on the front page a document titled “Genesin Studios Certificate of Defects.” The document is dated 28 June 2016, and has attached to it a seven-page report of Arcon Consulting Services Pty Ltd authored by Mr Dennis Camporeale (“Mr Camporeale”). Mr Genesin confirmed that report was prepared by Mr Camporeale and that the costings in that report were also that of Mr Camporeale.[84]
[84] T177.10-178.19.
By the “Certificate of Defects” Mr Genesin purported to certify the cost of rectification work for defects.[85] The text of the first page of the document is as follows:
[85] T162.16-34.
28^th June 2016
Antica Morphett Street
CERTIFICATE OF DEFECTS
(Simple Works Contract ABIC SW-2008, Clause N4)
To Whom it may concern.
Re: Proposed Restaurant Fit-Out at 226 Morphett St. Adelaide – Notes for content
Clause A2.1b of the contract provides that Bedrock Construction & Development must diligently carry out all necessary work and complete the works to the standard set out in the contract documents.
The works carried out defectively and required rectification pursuant to clause M11.1 of the contract.
The defects have not been remedied and are set out in our defects issued dated 13^th May 2016.
The owner in required to use another person to rectify the defects and make claim to adjust the contract in respect of the rectification costs pursuant to clause M12.1 to M12.3 of the contract.
The Owner has taken away the rectification work pursuant to clause M12.1 of the contract and will engage another person to perform the rectification work.
I certify the costs of the costs of the corrective/ rectification works as independently appraised by Dennis Camporeale as listed below:
No Notice of Practical Completion has been issued, notwithstanding the provision of clause M8.
Mr Genesin said there had been no further communication between him and Mr Henderson after Mr Genesin’s email dated 19 May 2016 terminating the Contract nor any communication between Mr Genesin and anyone from Bedrock in relation to Bedrock attending to rectify defects after the Certificate of Defects dated 28 June 2016.[86]
[86] Exhibit P1, vol 2, tab 35, p 547.
I received no submission from the defendant about this certificate. There is no provision in the Contract allowing for such a certificate. Further, it was provided after Mr Crea had terminated the Contract such that at the time the Contract no longer existed. Accordingly, I find the Architect’s Certificate of Defects dated 28 June 2016 is of no effect.
Certificate for payment
Although not tendered, Mr Crea pleads that on 7 March 2017 Mr Genesin issued Bedrock with a “certificate for payment” pursuant to clause N4 of the Contract for the sum of $201,380 (excl GST).[87] I can find no basis for the issue of a document such as this and certainly, there is no power under clause N4 to issue a document of this nature. I received no submissions on this document.
[87] Statement of Claim [28].
I find the certificate is of no effect.
Variations
In what it describes as its final claim dated 20 May 2016 and sent to Mr Crea and Mr Genesin by letter from Bedrock’s Solicitors dated 23 May 2016,[88] Bedrock claims Variations in the sum of $4,069 (excl GST). Attached to the final account is a list of the claimed Variations. In this list the first two Variations have no number ascribed to them. They are followed by Variation numbers BCVR.04-10 inclusive and then WVR.11-23 inclusive. The last item in the Variation Schedule is a credit to the plaintiff in the sum of $3,925 (excl GST).
[88] Exhibit D2.
Variations – Pleadings
As part of its final submissions Bedrock applied to amend its cross-claim as set out in paragraph 43 of its closing written submissions in these terms:
43.The Court is asked to adjudicate on the amendments proposed on the second day of the trial namely:
14. On 20 May 2016 Bedrock issued its final tax invoice in the sum of $85,996.00 inclusive of GST. The final tax invoice:
14.1. Consisted of a further claim in the amount of $59,475 inclusive of GST in respect of further variations and credits after those approved to 17 February 2016.
14.2. Incorrectly recorded that the unpaid amount to the date of the final invoice was $26,521 instead of $61,935 being the contract price plus approved variations of $476,050 less payments of $414,115.
14.3. The proper amount due and payable to Bedrock as at 20 May 2016 was $121,210 together with interest under the contract.
14.4. The plaintiff either personally or by the architect expressly directed and authorised (‘the direction and authorisation’) each of the extras and variations set out in the final tax invoice dated 20 May 2016.
14.5. In the event that the defendant is not entitled to be paid the extras and variations on the proper interpretation of the contract, then the defendant is nonetheless entitled to be paid by virtue of an implied promise to pay arising out of the direction and authorisation.
14.6. Further, in so far as the final tax invoice consists of a claim for prolongation (BCVR21 $30,852 + GST) the defendant relies upon clause H6 of the contract and says that the architect extended the time by email dated 2 March 2016.
Mr Crea objected to the late amendment to the cross-claim. The paragraphs sought to be added in the proposed amendment are those set out in paragraphs 14.4-14.6 above inclusive.
I reserved my decision on the application and indicated I would deal with it as part of my judgment.
In the case of proposed paragraph 14.4, the matters the subject of that proposed amendment were dealt with during the course of the trial. The matters pleaded in the proposed paragraphs 14.5 and 14.6 are questions of law.
I do not consider the proposed amendments are such as to irremediably prejudice the plaintiff and accordingly I grant leave to Bedrock to amend its cross-claim so that paragraph 14 of its second cross-claim reads as set out above.
Prior to publishing these reasons, I inquired with the plaintiff if Mr Crea intended to amend his defence to address these new allegations. I was informed that it did not wish to do so.
Variations – General Principles
The Meaning of the Word “Extras”
In its closing submissions[89] Bedrock identified 22 claims for “extras” and prolongation which its submits, after allowing a credit in the amount of $3,925, totals $59,475.90 (incl GST, $54,069 excl GST).
[89] Defendant’s Written Closing Submissions [33]-[43].
During cross-examination of Mr Genesin, Mr Riggall of counsel who appeared for Bedrock used the word “Extra” as well as “Variation”[90] in a number of his questions. In answer Mr Genesin referred to both “Variation” and “Extra”.[91]
[90] See for example T252.8.
[91] T268.21-32; T269.6-9.

The words “Variation”, “Extras” and “Additions” were used interchangeably in this hearing. I inquired with Mr Genesin during the evidence as to whether there was a difference between the two in this matter[92] but did not receive a clear answer. Nonetheless there is a distinction in principle between “Variation” and “Extra”.
[92] T281.1-5.
In Brooking on Building Contracts (6^th ed),[93] the authors make a distinction between “Variations and” “Extras”, identifying Extras as work of such a kind as to not fall within the contractual power to order “additions” and is therefore regarded as outside the Contract.
[93] Cremean, Whitten and Sharkey, Brooking on Building Contracts, (LexisNexis, 6^th ed, 2019) 205-207 [9.9].
The learned authors refer to a definition of “Extras” given by Humphreys J in SC Taverner and Co Ltd v Glamorgan County Council[94] where his Honour said[95] that “Extras” means extra to a contract.
[94] (1941) 164 LT 357, 358; Ibid 205 [9.9].
[95] At p 358.
In view of the High Court’s decision in Mann v Paterson Constructions Pty Ltd[96] with which I deal later in these reasons, the distinction between the two is important.
[96] [2019] HCA 32.
The definition of “Variation” in clause J1.4 defines it as a change to “(a) the scope of the works as contemplated by the contract documents and capable of being executed under this “Contract””.
That definition preserves the position that a Variation must be within the general scope of the work to be carried out under the terms of the Contract.
“Works” is defined as the completed construction set out in the contract documents. Accordingly, any change to work that is within the scope of the contract documents is a Variation.
In Sabemo Pty Ltd v De Groot,[97] Giles J considered the limitation on the power to order a Variation:[98]
…[it was] submitted that the inclusion of the Stage 2 works was beyond the contractual power to instruct variations. If one goes back to Thorn v Mayor and Commonalty of London (1876) 1 App Cas 120, Lord Cairns LC distinguished (at 127) between the kind of additional or varied work contemplated by the contract, and additional or varied work so peculiar, so unexpected, and so different from what any person reckoned or calculated upon, that it was not within the contract at all. In Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 Barwick CJ seems to have envisaged that electrical work originally omitted from a contract and intended to be performed by someone else might not be brought within it by variation. Mr De Groot also referred in this connection to the guarantee cases of Trade Indemnity Co v Workington Harbour and Dock Board (1937) 1 AC 1 and Dan v Barclays Australia Ltd (1983) 57 ALJR 442 to which I will come later in these reasons, although they were concerned with the effect of a variation under the guarantee rather than the principal contract.
However, it is necessary to apply the terms of CL6.10.01, since that provision defines the boundaries of permissible variations under the contract. The Stage 2 works were clearly of a character and extent capable of being executed under the contract. That they were of a character and extent contemplated by the contract is demonstrated by the facts that the contract referred to their being included (by the provision in Sabemo's tender) and that the parties to the contract agreed that they should be included as a variation.
[97] Unreported judgment, New South Wales, no. 50195 of 1990, BC9102171.
[98] Ibid, 5-6.
Whether work is a Variation within the meaning of a contract ultimately depends on the contractual provisions and the definition of “Variation” in that contract.
It is common for standard form contracts to provide that all Variations shall be within the general scope of the Contract and one sees such a provision in clause J1.4 whether there is a reference to a Variation being a change to the scope of the “works”.
Since the terms “Variations” and “Extras” (as well as sometimes “Alterations” and “Additions”) have been used interchangeably, when any of the witnesses or Counsel used the word “Extras”, it is necessary to determine if any claim for a “Variation” is in reality a claim for an “Extra”, because if it is the latter, it is outside the scope of the Contract and a different legal approach is required.
In Liebe v Molloy,[99] the High Court considered the question of work that had been done as “extras” in circumstances where the Contract provided that no extra works beyond those included in the Contract should be allowed or paid for without an order in writing from the employer (ie. the Principal under the Contract) and Architect. The Specification contained a similar provision.
[99] (1906) 4 CLR 347.
The appellant contractor executed a number of items of work, some of which were the subject of written orders signed by the Architect and expressed to be at the Principal’s direction but not signed by him. The High Court was not called upon to determine if the work for which the claim was made was of a kind contemplated in the specifications or drawings.
A dispute arose between the parties concerning the claim made by the contractor for the price of the extras. The matter went to an arbitrator who found as a matter of fact that the written orders were not endorsed by the Principal but that he had knowledge of those extras as a result of him constantly being on Site and took an active interest in them.
Griffiths CJ, who delivered the judgment of the Court said:[100]
…no orders in writing indorsed by the owner were given in respect of any of them, but he also found that the employer, Molloy, had such knowledge of those extras as might be fairly inferred from the fact that he was constantly on the works and taking an active interest therein.
…
The law on the subject may be very briefly stated. There was a written contract between the parties, and these items cannot be brought within its terms in face of the express stipulation that" no extra shall be paid for unless ordered by an order in writing by the architect indorsed by the employer;" but that stipulation does not exclude altogether the implied doctrine of law that, when one man does work for another at his request, an implied obligation arises to pay the fair value of it. The question is therefore is whether, notwithstanding the absence of written orders, the contractor is entitled to recover these sums, or in other words, whether under the circumstances of the case an implied contract to pay for them is to be inferred. That is an inference of fact to be drawn by the tribunal.
…
But a further inference must be drawn before a liability to pay arises, namely, that there was an implied contract to pay. It might be inferred, on the one hand, that, having regard to the nature of the works, the fact of the owner's presence, and the nature of the interest he took, he knew that they were outside the contract, and knew that the contractor expected to be paid for them as extras. On the other hand, it might be inferred as to all or some of them that he did not know that they were extras, or did not know or believe that the contractor expected to be paid for them. But that as I have said is a question of fact.
…
An implied contract may be proved in various ways. When a man does work for another without any express contract relating to the matter, an implied contract arises to pay for it at its fair value. Such an implication of course arises from an express request to do work made under such circumstances as to exclude the idea that the work was covered by a written contract. So it would arise from the owner standing by and seeing the work done by the other party, knowing that the other party, in this case the contractor, was doing the work in the belief that he would be paid for it as extra work. If the umpire was of opinion that any of this work was done under such circumstances that the owner knew or understood that the contractor was doing the work in the belief that he would be paid for it as extra work, then the umpire might, and probably would, infer that there was an implied promise to pay for it. That is one instance. Again, the architect might have been expressly authorised by the owner to order extra work.
[100] Ibid [353].
The High Court based its decision on an implied contract outside the written contract. Unfortunately, we do not know whether the work in question was within the general scope of the contract and therefore a Variation or not, but it was described as “Extras” so it seems it was work not within the scope of the contract.
In Pavey & Matthews Pty Ltd v Paul,[101] when considering the basis upon which payment may be recovered in circumstances where there was no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable, Deane J said:[102]
It suffices to say that, even accepting that traditional approach, it is clear that the old common indebitatus count could be utilized to accommodate what should be seen as two distinct categories of claim: one to recover a debt arising under a genuine contract, whether express or implied; the other to recover a debt owing in circumstances where the law itself imposed or imputed an obligation or promise to make compensation for a benefit accepted. In the first category of case, the action was brought upon the genuine agreement regardless of whether it took the form of a special or a common count. It follows from what has been said above that the cases in which a claimant has been held entitled to recover in respect of an executed consideration under an agreement upon which the Statute of Frauds precluded the bringing of an action should be seen as falling within the second and not the first category. In that second category of case, the tendency of common lawyers to speak in terms of implied contract rather than in terms of an obligation imposed by law (see, e.g., per Salter J., Scott v. Pattison (1923) 2 KB 723, at pp 727-728) should be recognized as but a reflection of the influence of discarded fictions, buried forms of action and the conventional conviction that, if a common law claim could not properly be framed in tort, it must necessarily be dressed in the language of contract. That tendency should not be allowed to conceal the fact that, in that category of case, the action was not based upon a genuine agreement at all. Indeed, if there was a valid and enforceable agreement governing the claimant's right to compensation, there would be neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration. The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution.
To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate. The circumstances in which the common law imposes an enforceable obligation to pay compensation for a benefit accepted under an unenforceable agreement have been explored in the reported cases and in learned writings and are unlikely to be greatly affected by the perception that the basis of such an obligation, when the common law imposes it, is preferably seen as lying in restitution rather than in the implication of a genuine agreement where in fact the unenforceable agreement left no room for one. That is not to deny the importance of the concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a new or developing category of case (see Muschinski v. Dodds [1985] HCA 77; (1985) 60 ALJR 52, at p 67[1985] HCA 77; 62 ALR 429, at p 455; Goff & Jones, op. cit., at pp 11ff.). In a category of case where the law recognizes an obligation to pay a reasonable remuneration or compensation for a benefit actually or constructively accepted, the general concept of restitution or unjust enrichment is, as is pointed out subsequently in this judgment, also relevant, in a more direct sense, to the identification of the proper basis upon which the quantum of remuneration or compensation should be ascertained in that particular category of case.
[101] (1987) 162 CLR 221.
[102] Ibid, 255-257.
In Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No.3],[103] Edelman J considered both Liebe v Molloy[104] and Pavey & Matthews Pty Ltd v Paul[105] amongst a number of other authorities.
[103] [2014] WASC 162.
[104] (1906) 4 CLR 347.
[105] (1987) 162 CLR 221.
In that matter his Honour was considering an application to strike out a statement of claim that had been amended significantly. The remaining claim after the amendments concerned a claim for unjust enrichment. The claim was brought for work done in anticipation of a contract that did not materialise with the work having been done for the benefit of the defendants in relation to a mine site in the north of Western Australia.
In the course of considering the strike out application, Edelman J considered the claim for unjust enrichment. His Honour referred to the High Court’s decision in Pavey & Matthews Pty Ltd v Paul,[106] noting the judgment of Deane J in which his Honour said that unjust enrichment is:
… a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question of whether the law should, in justice, recognise such an obligation in a new or developing category of case.[107]
[106] Ibid.
[107] Edelman J referring to Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256-257 in Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No.3] [2014] WASC 162 [48].
and observed that the unifying legal concept in Australia is limited to this taxonomic function[108] and not a direct source of liability.[109] His Honour continued by observing:[110]
The common features of actions within the 'label', 'concept', or 'notion' of unjust enrichment has generally been thought to be that, subject to defences, a plaintiff can prove its entitlement to restitution of the value of a benefit derived at the plaintiff's expense, if the Court is satisfied that the plaintiff has succeeded on any issues falling within three broad enquiries:
(i)    The defendant must be enriched.
(ii)     The enrichment must come at the expense of the plaintiff.
(iii)    The enrichment must be unjust.
[108] Ibid, [50].
[109] Ibid, [51].
[110] Ibid, [51].
As part of his consideration of the matter, his Honour referred to Liebe v Molloy and the passage from Griffiths CJ judgment where his Honour said:[111]
An implied contract may be proved in various ways. When a man does work for another without any express contract relating to the matter, an implied contract arises to pay for it at its fair value. Such an implication of course arises from an express request to do work made under such circumstances as to exclude the idea that the work was covered by a written contract. So it would [also] arise from the owner standing by and seeing the work done by the other party, knowing that the other party, in this case the contractor, was doing the work in the belief that he would be paid for it as extra work.
[111] Liebe v Molloy (1906) 4 CLR 347, 354.
Edelman J continued by noting the observation of Basten JA in Xu v Jinhong Design & Constructions Pty Ltd[112] that the use of the term “implied contract” by Griffiths CJ was ambiguous. His Honour continued that the ambiguity arises because the description may have either of two meanings, namely one, referring to a genuine contract which arises by implication rather than by the express declaration of the parties. The alternative meaning is that the reference by Griffiths CJ to “implied contract”:
… was to a class of claim was to a class of claim now recognised as based upon unjust enrichment. Before the express recognition of unjust enrichment in Australia, many claims for unjust enrichment were described as 'implied contract'.[113]
[112] [2011] NSWCA 277 [26].
[113] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 [15] (French CJ).
His Honour observed however that the High Court has rejected “implied contract” as a description of the basis for recovery of a payment made under a mistake of fact and described the action as based upon unjust enrichment.[114]
[114] Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1998) 164 CLR 662, 673 [11]; Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No.3] [65]-[69].
I note that as part of his Honour’s consideration he considered the concept of “free acceptance”, that:
[A defendant] will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the claimant who rendered the services expected to be paid for them, and yet did not take a reasonable opportunity open to him to reject the proffered services.[115]
[115] Lampson (Australia) Pty Ltd Ibid [59]; Mitchell, C, Mitchell, P & Watterson, S (eds) Goff & Jones: The Law of Unjust Enrichment (8^th ed, 2011) 453-454 [17-03].
The concept of free acceptance has not been adopted as the law of Australia and I give it no consideration.
In Lumbers & Anor v W Cook Builders Pty Ltd (In liq),[116] Lumbers, who was the owner of the land in question, entered into an oral contract with Cook & Sons Pty Ltd (“Sons”) for Sons to carry out building work on the Lumbers’ land. Unbeknown to Lumbers, Sons sub-contracted the entirety of the work to Cook Builders Pty Ltd (“Builders”). Builders went into liquidation and claimed against both Sons and Lumbers. The claim against Sons was stayed as a result of Builders failing to provide security for costs. The claim against Lumbers proceeded.
[116] (2008) 232 CLR 635.
Although Builders claimed on a number of bases, ultimately the Full Court of the Supreme Court of South Australia decided the matter on restitution grounds. A majority of the Full Court of the Supreme Court of South Australia held that the restitution claim should succeed, concluding that Lumbers had received an “incontrovertible benefit” which Lumbers had freely accepted at Builders’ expense and that it would be unconscionable for the Lumbers to retain the benefit without paying for it.[117]
[117] W Cook Building Pty Ltd (In liq) v Lumbers (2007) 96 SASR 406 [422]-[426], [75]-[95].
Lumbers appealed to the High Court.
The High Court observed that it is essential to consider how a claim in restitution fits with the contract the parties have made, and that the legal relationship between Sons and Lumbers cannot be dismissed from consideration whether on the bases assigned by the Full Court or otherwise.[118] The High Court[119] continued by citing Lord Goff in Pan Ocean Shipping Co Ltd v Creditcorp Ltd[120] that:
…serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract.
[118] Lumbers v W Cook Builders Pty Ltd [2008] 232 CLR 635, 662 [77].
[119] Ibid, [79].
[120] [1994] 1 WLR 161, 166.

In examination-in-chief Mr Henderson referred to the email from Mr Crea to Mr Genesin sent 17 January 2016,[630] to which I have referred. Mr Henderson said that he had a conversation with Mr Crea on the subject of the mirror during which he told Mr Crea that the frame to the mirror is a joinery item and a provisional cost item which had not been quoted, therefore the mirror would cause the price to increase. He said that Mr Crea agreed that the mirror should be installed without a frame.[631]
[629] T99.28-100.15.
[630] Exhibit P1, vol 3, tab 65, p 743.
[631] T390.1-391.18.

Mr Henderson said he discussed this item with Mr Genesin at the inspection on 3 May 2016.[632]
[632] T444.8-449.17.
Mr Genesin was not cross-examined on this item.
Exhibit D6 deals with item 5.23[633] where Mr Henderson’s notes ‘offer $250 credit’. In my view, that entry is inconsistent with the allegation that Mr Crea instructed the work not to be done and I do not accept Mr Henderson’s evidence on this item.
[633] Exhibit D6, p 11.
I find there is no good reason not to adopt the Arbitrator’s Award for this item and I adopt it as part of the Court’s judgment. I find the plaintiff is entitled to rectification cost of $905 (excl GST) for this item.
Balance of the Award
To the extent I have not dealt with any items contained in the Award it is because they have not been the subject of challenge by Bedrock whether directly or indirectly.
Subject to what I have found earlier in these reasons, I find there is no good reason not to adopt the Arbitrator’s Award and I adopt it as part of the Court’s judgment.
Conclusion
The result is that I find Mr Crea is entitled to the sum of $95,599.70 (excl GST)[634] for rectification costs for defects. That sum comprises the sum found by the Arbitrator as the reasonable cost of rectifying defects adjusted as follows:
i.Item 2.01 from $3,350 to $610;
ii.Item 3.06 from $3,254 to $3,039;
iii.Item 3.14 from $1,500 to $1,185.50;
iv.Item 4.06 from $1847.50 to $480;
v.Item 5.12 from $3,160 to $0.00.
[634] $105,159.67 (incl GST).
I find that Bedrock is entitled to the sum of $76,038.12 (excl GST)[635] for:
i.The agreed balance due on progress claims 1-4 of $42,486.36 (exclGST);[636]
ii.Variations in the sum of $16,441.33 (excl GST); and
iii.Delay costs in the sum of $21,035.43 (excl GST); less
iv.A credit to Mr Crea for signage in the sum of $3,925 (excl GST).
[635] $83,641.93 (incl GST).
[636] $46,735 (incl GST).
Accordingly:
1There will be a judgment for the plaintiff on its claim in the sum of $105,159.67 (incl GST).
2There will be judgment for the defendant on its cross-claim in the sum of $83,641.93 (incl GST).
3The defendant’s cross-claim against C&N Group (Aust) Pty Ltd is dismissed.
I will hear the parties on the question of costs and interest.
ANNEXURE A – TABLES OF DISPUTES BY TOPICS
FDN
IN THE DISTRICT COURT OF SOUTH AUSTRALIA
IN THE CIVIL JURISDICTION
DCCIV 346 of 2017
BETWEEN
ANTHONY CREA
Plaintiff
and
BEDROCK CONSTRUCTION AND DEVELOPMENT PTY LTD (A.C.N. 155 392 742)
Defendant
TABLE OF DISPUTES BY TOPIC
[For hearing before His Honour Judge O’Sullivan 11 December 2019]
Filed on behalf of
Bedrock Construction and Development Pty Ltd          STARKE LAWYERS
A.C.N. 155 392 742 by:28 Hurtle Square
  Adelaide SA 5000
T: 8232 6504
  F: 8232 7606
  E: [email protected]
L1238 – P3588
Settled by:   David Riggall
Date and time of filing:   11 December 2019
TABLE 1: CHALLENGES TO AWARD

DISPUTE AWARD

AWARD REFERENCE

SUMMARY OF DETERMINATIONS

BEDROCK CASE

SS Item No Item Details Defect
‘C’ = non-compliance with Contract Documents;
‘W’ = poor workmanship Incomplete
Work Reasonable Cost to Rectify
$/c*
(excl’ GST) Alleged Instruction or Direction
(for Trial Judge’s decision) Result of Alleged Defective Design Bedrock

2.25
2.26
(20) Channel for a light fitting around the bar, not as documented YES
(C) + (W) N/A $6,612.50 ALLEGED NO DISPUTE
should be a
Design defect. Aluminium 120mmX30mmx3mm does not exist as specified. Due to the size of the assembly the welds have to be done on site- rectification should occur on site, and was due to occur on the 9/5/16, costs excessive.

3.22 (33) Re-grout and waterproof planter boxes YES (part)
(C)
NO (part) N/A $2,850.00 N/A
NO (part)

YES (part)
DISPUTE
Boxes were waterproofed. Error as to ‘no disagreement’ at [818]. Design issue. Plaintiff expressly instructed no engineering because artificial plants.

5.14 (71) Set-out ceiling lights as documented
YES

(C)
N/A $1,930.00 ALLEGED NO DISPUTE
Original drawing C1- had no dimensions, C2 appeared after ceiling framing was complete and framing clashed with light position- only out by 150mm- unreasonableness

5.09 (67) Reinstall tap and soap dispenser as documented
Amended to: Placement of taps not in accordance with plans
YES

(C)
N/A $5,415.00 N/A NO DISPUTE Amendment to defect should not have been allowed mid arbitration. Angle has no relation to length of soap/ mixer. Unreasonableness exception.
TOTAL:   $16,807.50
TABLE 2: DESIGN DEFECTS AS PER AWARD

AWARD REFERENCE SUMMARY OF DETERMINATIONS BEDROCK CASE

SS Item No Item Details Defect
‘C’ = non-compliance with Contract Documents;
‘W’ = poor workmanship Incomplete
Work Reasonable Cost to Rectify
$/c*
(excl’ GST) Alleged Instruction or Direction
(for Trial Judge’s decision) Result of Alleged Defective Design Bedrock

1.20
(7) Incorrect door closer to door D.02 installed YES
(C) + (W) N/A $750.00 ALLEGED YES (part)
NO (part) Defective design. Rectification May 2016-no downtime.
Subcontractors available.

2.01
(9) Replace damaged bar stone top. Reinforces backing YES
(C) + (W) N/A $3,350.00 N/A YES
(part) Defective design. Challenge to double count withdrawn.

3.06
(26) Replace installed ceiling angle with that instructed by Ryan Genesin YES (part)
(W)
NO (part) N/A $3254.00 ALLEGED YES Defective design. Rectification-no downtime. Subcontractors available.

3.14 (30) Cladding to brickwork junction, not as detailed. YES (part)
(W)
NO (part) N/A $1,500.00 ALLEDGED YES (part) Defective design. Rectification-no downtime. Subcontractors available.

4.06 (39) Realign window to existing bulkhead as documented YES (part)
(C) N/A $1,847.50 (subject to Trial Judge’s decision) N/A YES Defective design. Unreasonable-ness exception

5.12
(69) Relocate floor drain from underside of partition
YES

(C) + (W)
N/A $3,160.00 N/A YES Found to be defective design, not defendant.

3.22
(33) Re-grout and waterproof planter boxes YES (part)
(C)
NO (part) N/A $2,850.00 N/A NO (part)
YES (part) DISPUTE
Boxes were waterproofed. Error as to ‘no disagreement’ at [818]. Design issue. Plaintiff expressly instructed no engineering because of artificial plants.
TOTAL:   $16,711.50
TABLE 3 – INCOMPLETE WORKS

AWARD REFERENCE
SUMMARY OF DETERMINATIONS BEDROCK CASE

SS Item No Item Details Defect
‘C’ = non-compliance with Contract Documents;
‘W’ = poor workmanship Incomplete
Work Reasonable Cost to Rectify
$/c*
(excl’ GST) Alleged Instruction or Direction
(for Trial Judge’s decision) Result of Alleged Defective Design Bedrock

1.21 (8) Door closer to D.01 missing. Amended to: Door closer has not been installed N/A YES $640.00 ALLEGED N/A Rectification May 2016-no downtime. Subcontractors available.

2.11 (11) Complete Deli Bar glazing as documented N/A YES $1,250.00 ALLEGED N/A Rectification-no downtime. Subcontractors available.

4.05 (38) Wall reveals documented as rendered, make good N/A YES $1,620.00 N/A NO Rectification-no downtime. Subcontractors available.

4.10 (41) Make good edge between rendered wall and stone. N/A YES $190.00 N/A N/A Rectification-no downtime. Subcontractors available.

4.48 (60) Relocate GPO to office as documented YES (part)
(C)
NO (part) YES (part) $770.00 N/A N/A Design change. Unreasonableness exception Instruction from Crea

5.08 (66) Rectify water damage to wall YES
(C) + (W) YES $2,371.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

5.11
(68) Caulking between vanity and top and wall missing N/A YES $125.00 N/A NO Rectification May 2016-no downtime. Subcontractors available.

5.16 (72) Redo angle trim to bottom of cubicle partitions YES (part)
(W)
NO (part) YES (part) $1,600.00 N/A N/A Rectification-no downtime. Subcontractors available.

5.26 (79) Door pull to disabled door missing N/A YES $725.00 N/A N/A Rectification-no downtime. Subcontractors available.
TOTAL:     $9,291

TABLE 4: INSTRUCTION TO ADD, VARY OR ALTER AND BY WHOM

AWARD REFERENCE SUMMARY OF DETERMINATIONS BEDROCK CASE

SS Item No Item Details Defect
‘C’ = non-compliance with Contract Documents;
‘W’ = poor workmanship Incomplete
Work Reasonable Cost to Rectify
$/c*
(excl’ GST) Alleged Instruction or Direction
(for Trial Judge’s decision) Result of Alleged Defective Design Bedrock

1.07
(2) Entry door D.01 black powder coated door pull & lock system/handles YES (part)
(C)
NO (part) N/A $420.00 ALLEGED
CREA NO Rectification May 2016-no downtime. Subcontractors available.

1.21 (8) Door closer to D.01 missing. Amended to: Door closer has not been installed N/A YES $640.00 ALLEGED
CREA N/A Rectification May 2016-no downtime. Subcontractors available.

2.10 (10) Incorrect light fittings installed. Replace and make good YES
(C) + (W) N/A $1,885.00 ALLEGED
GENESIN NO PC item. Design change to save cost.

2.11 (11) Complete Deli Bar glazing as documented N/A YES $1,250.00 ALLEGED
CREA N/A Rectification-no downtime. Subcontractors available.

2.17 (15) Replace stone work to joinery items and install as documented YES
(C) + (W) N/A $14,152.50 ALLEGED
CREA & GENESIN N/A
Defective design. Challenge to double count withdrawn..
Rectify.

4.13 (44) Stone panel joints not located as documented YES (part)
(C)
NO (part) N/A $5,450.00 ALLEGED
CREA & GENESIN N/A PC item design change. Unreasonableness exception

5.03 (64) Mitre tiled edge to hob as detailed YES
(C) N/A $985.00 ALLEGED
CREA & GENESIN N/A PC item design change.

5.19 (75) Replace power points with that specified YES
(C) N/A $205.00 ALLEGED
CREA N/A Rectification May 2016-no downtime. Subcontractors available.
TOTAL: $25,892.50

5.23 (77) Mirror above basin not installed to detail or code YES
(C) N/A $905.00 ALLEGED
CREA N/A PC Instruction on site.
TABLE 5: DEFECT REQUIRING RECTIFICATION

DEFECTIVE WORK

AWARD REFERENCE

SUMMARY OF DETERMINATIONS

BEDROCK CASE

SS Item No Item Details Defect
‘C’ = non-compliance with Contract Documents;
‘W’ = poor workmanship Incomplete
Work Reasonable Cost to Rectify
$/c*
(excl’ GST) Alleged Instruction or Direction
(for Trial Judge’s decision) Result of Alleged Defective Design Bedrock

1.15
(3) Paintwork to inter tenancy bulkhead is to have consistent surface finish YES
(W) N/A $1,450.00 N/A NO Rectification May 2016-no downtime. Subcontractors available.

2.15
2.31
4.31
5.04
(14) Remove vinyl sheeting and reprepare screed suitable for new vinyl sheeting. Prepare around floor traps and I.P. YES
(W) N/A $20,579.20 N/A
YES (part)
Admitted as defect This defect was identified after the defendant had left site. The subcontractor should have the opportunity to rectify.

2.22
2.23
(17) Make good metal flanges to bar top YES
(W) N/A $180.00 N/A NO Rectification May 2016-no downtime. Subcontractors available.

2.24
(18) Replace joinery hinges with soft close as documented YES
(C) N/A
$1,225.00
N/A N/A Rectification May 2016-no downtime. Subcontractors available.

2.32 (23) Reorientate exit sign to kitchen entry YES (part)
(W)
NO (part) N/A $80.00 N/A NO Rectification May 2016-no downtime. Subcontractors available.

3.05 (25)
Clean all frames of grout-glue-paint.
YES (part)
(W)
NO (part) N/A $1,580.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

4.07
(40) Remove black paint from rendered walls YES
(W) N/A $850.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

4.17 (46) Shadow line between stone face and joinery missing YES
(C) + (W) N/A $1,510.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

4.27 (52) Bench top to wood store not to detail YES
(C) N/A $1,230.00 N/A NO Rectification-no downtime. Subcontractors available.

5.13 (70) Ceiling needs reflushing YES
(W) N/A $1,850.00 N/A NO Rectification May 2016-no downtime. Subcontractors available.

5.17 (73) Remove silicon from toilet cubicles YES
(W) N/A $815.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

5.18 (74) Remedial work to walls unacceptable YES
(W) N/A $2,240.00 N/A NO Rectification-no downtime. Subcontractors available.

5.24
5.25
(78) Repaint disabled door to specification YES
(C) + (W) N/A $925.00 ALLEGED N/A Admitted as defect Rectification May 2016-no downtime. Subcontractors available.

5.28
5.29
(80) Re-grout wall tiles to cubicles YES
(W) N/A $745.00 N/A N/A Rectification-no downtime. Subcontractors available.

84 Remove screens and prepare the existing frame and screens for the specific applications, apply stated coatings, reinstate and instate and remove temporary security hoarding for security screens YES
(C) + (W) N/A $3,295.00 N/A N/A Rectification May 2016-no downtime. Subcontractors available.

88 Additional plumbing issue: sewer smell in restaurant YES
(W) $670.00 N/A N/A Defendant not notified until after refused entry
TOTAL: $3224.20
ANNEXURE B – SUMMARY OF DETERMINATIONS

AWARD REFERENCE		SUMMARY OF DETERMINATIONS
SS Item No	Item Details	Defect ‘C’ = noncompliance with Contract Documents; ‘W’ = poor workmanship	Incomplete Work	Reasonable Cost to Rectify $/c* (excl’ GST)	Alleged Instruction or Direction (for Trial Judge’s decision)	Result of Alleged Defective Design	Adopted by the Court (Y / N)	Result
1.07 (2)	Entry door D.01 black powder coated door pull & lock system/handles	YES (part) (C) NO (part)	N/A	$420.00	ALLEGED	NO	Y	$420.00
1.15 (3)	Paintwork to inter tenancy bulkhead is to have consistent surface finish	YES (W)	N/A	$1,450.00	N/A	NO	Y	$1,450.00
1.17 (5)	Soffit CFC cladding to be replaced with metal as detailed	NO	N/A	$NIL	ALLEGED	YES	Y	-
1.20 (7)	Incorrect door closer to door D.02 installed	YES (C) + (W)	N/A	$750.00	ALLEGED	YES (part) NO (part)	Y	$750.00
1.21 (8)	Door closer to D.01 missing. Amended to: Door closer has not been installed	N/A	YES	$640.00	ALLEGED	N/A	Y	$640.00
2.01 (9)	Replace damaged bar stone top. Reinforces backing	YES (C) + (W)	N/A	$3,350.00	N/A	YES (part)	N Figure reduced by $2,740.00	$610.00
2.10 (10)	Incorrect light fittings installed. Replace and make good	YES (C) + (W)	N/A	$1,885.00	ALLEGED	NO	Y	$1,885.00
2.11 (11)	Complete Deli Bar glazing as documented	N/A	YES	$1,250.00	ALLEGED	N/A	Y	$1,250.00
2.14 (13)	Conceal waste pipe in wall cavity	YES (part) (C) NO (part)	N/A	$NIL	N/A	NO (part) YES (part)	Y	-
2.15 2.31 4.31 5.04 (14)	Remove vinyl sheeting and reprepare screed suitable for new vinyl sheeting. Prepare around floor traps and I.P.	YES (W)	N/A	$20,579.20	N/A	YES (part)	Y	$20,579.20
2.17 (15)	Replace stone work to joinery items and install as documented	YES (C) + (W)	N/A	$14,152.50	ALLEGED	N/A	Y	$14,152.50
2.22 2.23 (17)	Make good metal flanges to bar top	YES (W)	N/A	$180.00	N/A	NO	Y	$180.00
2.24 (18)	Replace joinery hinges with soft close as documented	YES (C)	N/A	$1,225.00	N/A	N/A	Y	$1,225.00
2.25 2.26 (20)	Channel for a light fitting around the bar, not as documented	YES (C) + (W)	N/A	$6,612.50	ALLEGED	NO	Y	$6,612.50
2.30 (22)	Transition from vinyl flooring to tiled surface unacceptable	Refer Item 2.15, 2.31, 4.31, 5.04	Refer Item 2.15, 2.31, 4.31, 5.04	N/A	Y	-
2.32 (23)	Reorientate exit sign to kitchen entry	YES (part) (W) NO (part)	N/A	$80.00	N/A	NO	Y	$80.00
3.05 (25)	Clean all frames of grout-glue-paint.	YES (part) (W) NO (part)	N/A	$1,580.00	N/A	N/A	Y	$1,580.00
3.06 (26)	Replace installed ceiling angle with that instructed by Ryan Genesis	YES (part) (W) NO (part)	N/A	$3,254.00	ALLEGED	YES	N Figure reduced by $215.00	$3,039.00
3.14 (30)	Cladding to brickwork junction, not as detailed	YES (part) (W) NO (part)	N/A	$1,500.00	ALLEGED	YES (part)	N Figure reduced by $314.50	$1,185.50
3.15 (31)	Remove glue, grout and stains from brick tiled floor	YES (W)	N/A	$NIL	N/A	N/A	Y	-
3.17 (32)	Poor installation of lights over deli bar	YES (C) + (W)	N/A	$NIL	ALLEGED	N/A	Y	-
3.22 (33)	Re-grout and waterproof planter boxes	YES (part) (C) NO (part)	N/A	$2,850.00	N/A	NO (part) YES (part)	Y	$2,850.00
4.01 (35)	Remove/make good scuff marks/glue/grout marks and poor patching	YES (W)	N/A	$NIL	N/A	N/A	Y	-
4.02 (36)	Remove glue, grout or stains from brick tiled floor	YES (W)	N/A	$NIL	N/A	N/A	Y	-
4.04 (37)	L.08 and L.09 do not have dimmer switch as detailed	NO	NO	$NIL	ALLEGED	YES	Y	-
4.05 (38)	Wall reveals documented as rendered, make good	N/A	YES	$1,620.00	N/A	NO	Y	$1,620.00
4.06 (39)	Realign window to existing bulkhead as documented	YES (part) (C)	N/A	$1,847.50 (subject to Trial Judge’s decision)	N/A	YES	N Quote received as Exhibit P12	$480.00
4.07 (40)	Remove black paint from rendered walls	YES (W)	N/A	$850.00	N/A	N/A	Y	$850.00
4.10 (41)	Make good edge between rendered wall and stone.	N/A	YES	$190.00	N/A	N/A	Y	$190.00
4.13 (44)	Stone panel joints not located as documented	YES (part) (C) NO (part)	N/A	$5,450.00	ALLEGED	N/A	Y	$5,450.00
4.15 (45)	Kitchen transition from floor tiling to vinyl floor	Refer Item 2.15, 2.31, 4.31, 5.04	N/A	Refer Item 2.15, 2.31, 4.31, 5.04	N/A	Refer Item 2.15, 2.31, 4.31, 5.04	Y	-
4.17 (46)	Shadow line between stone face and joinery missing	YES (C) + (W)	N/A	$1,510.00	N/A	N/A	Y	$1,510.00
4.27 (52)	Bench top to wood store not to detail	YES (C)	N/A	$1,230.00	N/A	NO	Y	$1,230.00
4.28a (54)	Kitchen light fittings not installed as detailed	NO	N/A	$NIL	ALLEGED	N/A	Y	-
4.41 (59)	Remove stains, glue or grout from vinyl floor	Refer Item 2.15, 2.31, 4.31, 5.04	N/A	Included in Item 2.15, 2.31, 4.31, 5.04	N/A	N/A	Y	-
4.48 (60)	Relocate GPO to office as documented	YES (part) (C) NO (part)	YES (part)	$770.00	N/A	N/A	Y	$770.00
4.49 (61)	Install documented GPO to pizza servery area	YES (C)	N/A	$210.00	N/A	N/A	Y	$210.00
4.50 (62)	Install documented exit sign on restaurant side of kitchen	Refer Item 2.32	N/A	Refer Item 2.32	N/A	Refer Item 2.32	Y	-
5.03 (64)	Mitre tiled edge to hob as detailed	YES (C)	N/A	$985.00	ALLEGED	N/A	Y	$985.00
5.06 (65)	Provide compliant door handle to ambulant cubicle door	NO	NO	$NIL	N/A	YES	Y	-
5.08 (66)	Rectify water damage to wall	YES (C) + (W)	YES	$2,371.00	N/A	N/A	Y	$2,371.00
5.09 (67)	Reinstall tap and soap dispenser as documented Amended to: Placement of taps not in accordance with plans	YES (C)	N/A	$5,415.00	N/A	NO	Y	$5,415.00
5.11 (68)	Caulking between vanity and top and wall missing	N/A	YES	$125.00	N/A	NO	Y	$125.00
5.12 (69)	Relocate floor drain from underside of partition	YES (C) + (W)	N/A	$3,160.00	N/A	YES	N Plaintiff not entitled to rectification costs	$0.00
5.13 (70)	Ceiling needs reflushing	YES (W)	N/A	$1,850.00	N/A	NO	Y	$1,850.00
5.14 (71)	Set-out ceiling lights as documented	YES (C)	N/A	$1,930.00	ALLEGED	NO	Y	$1,930.00
5.16 (72)	Redo angle trim to bottom of cubicle partitions	YES (part) (W) NO (part)	YES (part)	$1,600.00	N/A	N/A	Y	$1,600.00
5.17 (73)	Remove silicon from toilet cubicles	YES (W)	N/A	$815.00	N/A	N/A	Y	$815.00
5.18 (74)	Remedial work to walls unacceptable	YES (W)	N/A	$2,240.00	N/A	NO	Y	$2,240.00
5.19 (75)	Replace power points with that specified	YES (C)	N/A	$205.00	ALLEGED	N/A	Y	$205.00
5.20 (76)	Stopcocks to disabled hand basin incorrectly installed	NO	N/A	$NIL	N/A	YES	Y	-
5.23 (77)	Mirror above basin not installed to detail or code	YES (C)	N/A	$905.00	ALLEGED	N/A	Y	$905.00
5.24 5.25 (78)	Repaint disabled door to specification	YES (C) + (W)	N/A	$925.00	ALLEGED	N/A	Y	$925.00
5.26 (79)	Door pull to disabled door missing	N/A	YES	$725.00	N/A	N/A	Y	$725.00
5.28 5.29 (80)	Regrout wall tiles to cubicles	YES (W)	N/A	$745.00	N/A	N/A	Y	$745.00
5.32 (82)	Redo transition from brick tiles to vinyl sheeting	Refer Item 2.15, 2.31, 4.31, 5.04	Refer Item 2.15, 2.31, 4.31, 5.04	Refer Item 2.15, 2.31, 4.31, 5.04	Y	-
5.33 (83)	Remove vinyl sheeting and reprepare screed suitable for new vinyl sheeting. Prepare around floor traps and I.P. See item 2.15 etc.	Refer Item 2.15, 2.31, 4.31, 5.04	Refer Item 2.15, 2.31, 4.31, 5.04	N/A	Y	-
84	Remove screens and prepare the existing frame and screens for the specific applications, apply stated coatings, reinstate and instate and remove temporary security hoarding for security screens	YES (C) + (W)	N/A	$3,295.00	N/A	N/A	Y	$3,295.00
6.1 6.2 (85)	Replace the ‘control joint’ in the flooring	NO	N/A	$NIL	N/A	YES (subject to Trial Judge decision)	Y	-
86	To replace brick pavers	Refer Item 6.1/6.2	Refer Item 6.1/6.2	Refer Item 6.1/6.2	Y	-
87	Replace airconditioning unit Amended to: Plaintiff no longer pursues this item	No determin’n	No determin’n	No determin’n	N/A	N/A	Y	-
88	Additional plumbing issue: sewer smell in restaurant	YES (W)	$670.00	N/A	N/A	Y	$670.00
TOTALS	103,396.70*	$95.599.70

ANNEXURE C – NOT REPRODUCED

i. The sum due under progress claims 1-4, subject to any claim the plaintiff has	$46,735 (incl GST);
ii. Variation claims	$29,856.20
iii. Prolongation claim[21]	$30,852
iv. Less credit for signage	$(3,925)
v. Error in prolongation claim	$(373.40)
vi. Total	$103,144.80 (incl GST)

DISPUTE AWARD AWARD REFERENCE		SUMMARY OF DETERMINATIONS					BEDROCK CASE
SS Item No	Item Details	Defect ‘C’ = non-compliance with Contract Documents; ‘W’ = poor workmanship	Incomplete Work	Reasonable Cost to Rectify $/c* (excl’ GST)	Alleged Instruction or Direction (for Trial Judge’s decision)	Result of Alleged Defective Design	Bedrock
2.25 2.26 (20)	Channel for a light fitting around the bar, not as documented	YES (C) + (W)	N/A	$6,612.50	ALLEGED	NO	DISPUTE should be a Design defect. Aluminium 120mmX30mmx3mm does not exist as specified. Due to the size of the assembly the welds have to be done on site- rectification should occur on site, and was due to occur on the 9/5/16, costs excessive.
3.22 (33)	Re-grout and waterproof planter boxes	YES (part) (C) NO (part)	N/A	$2,850.00	N/A	NO (part) YES (part)	DISPUTE Boxes were waterproofed. Error as to ‘no disagreement’ at [818]. Design issue. Plaintiff expressly instructed no engineering because artificial plants.
5.14 (71)	Set-out ceiling lights as documented	YES (C)	N/A	$1,930.00	ALLEGED	NO	DISPUTE Original drawing C1- had no dimensions, C2 appeared after ceiling framing was complete and framing clashed with light position- only out by 150mm- unreasonableness

DEFECTIVE WORK AWARD REFERENCE		SUMMARY OF DETERMINATIONS					BEDROCK CASE
SS Item No	Item Details	Defect ‘C’ = non-compliance with Contract Documents; ‘W’ = poor workmanship	Incomplete Work	Reasonable Cost to Rectify $/c* (excl’ GST)	Alleged Instruction or Direction (for Trial Judge’s decision)	Result of Alleged Defective Design	Bedrock
1.15 (3)	Paintwork to inter tenancy bulkhead is to have consistent surface finish	YES (W)	N/A	$1,450.00	N/A	NO	Rectification May 2016-no downtime. Subcontractors available.
2.15 2.31 4.31 5.04 (14)	Remove vinyl sheeting and reprepare screed suitable for new vinyl sheeting. Prepare around floor traps and I.P.	YES (W)	N/A	$20,579.20	N/A	YES (part)	Admitted as defect This defect was identified after the defendant had left site. The subcontractor should have the opportunity to rectify.
2.22 2.23 (17)	Make good metal flanges to bar top	YES (W)	N/A	$180.00	N/A	NO	Rectification May 2016-no downtime. Subcontractors available.
2.24 (18)	Replace joinery hinges with soft close as documented	YES (C)	N/A	$1,225.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
2.32 (23)	Reorientate exit sign to kitchen entry	YES (part) (W) NO (part)	N/A	$80.00	N/A	NO	Rectification May 2016-no downtime. Subcontractors available.

3.05 (25)	Clean all frames of grout-glue-paint.	YES (part) (W) NO (part)	N/A	$1,580.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
4.07 (40)	Remove black paint from rendered walls	YES (W)	N/A	$850.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
4.17 (46)	Shadow line between stone face and joinery missing	YES (C) + (W)	N/A	$1,510.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
4.27 (52)	Bench top to wood store not to detail	YES (C)	N/A	$1,230.00	N/A	NO	Rectification-no downtime. Subcontractors available.
5.13 (70)	Ceiling needs reflushing	YES (W)	N/A	$1,850.00	N/A	NO	Rectification May 2016-no downtime. Subcontractors available.
5.17 (73)	Remove silicon from toilet cubicles	YES (W)	N/A	$815.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
5.18 (74)	Remedial work to walls unacceptable	YES (W)	N/A	$2,240.00	N/A	NO	Rectification-no downtime. Subcontractors available.
5.24 5.25 (78)	Repaint disabled door to specification	YES (C) + (W)	N/A	$925.00	ALLEGED	N/A	Admitted as defect Rectification May 2016-no downtime. Subcontractors available.

5.28 5.29 (80)	Re-grout wall tiles to cubicles	YES (W)	N/A	$745.00	N/A	N/A	Rectification-no downtime. Subcontractors available.
84	Remove screens and prepare the existing frame and screens for the specific applications, apply stated coatings, reinstate and instate and remove temporary security hoarding for security screens	YES (C) + (W)	N/A	$3,295.00	N/A	N/A	Rectification May 2016-no downtime. Subcontractors available.
88	Additional plumbing issue: sewer smell in restaurant	YES (W)	$670.00	N/A	N/A	Defendant not notified until after refused entry