Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon - [2010] NSWSC 322

No judgment structure available for this case.

CITATION: Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322

HEARING DATE(S): 15/02/10, 18/02/10, 19/02/10, 22/02/10 - 26/02/10, 1/03/10 - 5/03/10, 8/03/10, 10/03/10 - 12/03/10

JUDGMENT DATE :
28 April 2010

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: The parties are to submit short minutes of order.

CATCHWORDS: CONTRACTS - Building, engineering and related contracts - The Contract - Claim by builder for variations and delay costs - Whether Court can adjust date for practical completion under contract - Whether architect/proprietors estopped from pleading that that builder’s claims were not made in compliance with the relevant contractual procedures and therefore must fail - The principle in Liebe v Molloy - Whether the plaintiff builder’s claims for variations and delays made out on the evidence - Relevant principles where the architects are simultaneously the proprietors - Whether architect had duty to act impartially - Whether this duty breached - Performance of work - Whether it is possible to assess delay where construction programming has not occurred - Whether the expert evidence relied upon by the parties should be accepted - Cross-claim by defendants against builder for defective work - PROCEDURE - Courts and judges generally - Courts - Relevant principles for making a finding of fraudulent conduct - Whether allegation of fraudulent conduct made out - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - Consumer protection - Misleading or deceptive conduct or false representations - Whether brochure produced by cross-defendants was misleading or deceptive - Whether cross-claimants proved reliance on particular representations - Whether causation shown in cross-claim - Whether relevant limitation period had expired - Whether evidence showed that cross-defendants’ product was not fit for purpose.

LEGISLATION CITED: Evidence Act 1995
Home Building Act 1989
Sale of Goods Act 1923
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Aleyn v Belchier (1758) 28 ER 634
Arenson v Casson Beckman Rutley & Co [1977] AC 405
Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266
Briginshaw v Briginshaw (1938) 60 CLR 336
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Canterbury Pipe Lines Ltd v Christchurch Drainage Board (1979) 16 BLR 86
Dixon v South Australian Railways Commissioner (1923) 34 CLR 71
Fink v Fink (1946) 74 CLR 127
Gould v Vaggelas (1984) 56 ALR 31
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 79 ALR 83
Hickman & Co v Roberts [1913] AC 229
John Holland Construction & Engineering Pty Ltd v Majorca Projects Pty Ltd (1996) 13 BCL 235
Jones v Dunkel (1959) 101 CLR 298
London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 BLR 51
Liebe v Molloy (1906) 4 CLR 347
Lubenham v South Pembrokeshire DC (1986) 33 BLR 39
Lubhman Fidelities and Investments v South Pembrook Shire District Council (1986) 33 BLR 39
Makita (Australia) v Sprowles (2001) 52 NSWLR 705
Medtel Pty Ltd v Courtney [2003] FCAFC 151
Minster Trust Ltd v Traps Tractors Ltd (1954) 3 All ER 136
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Ngurli & Ors v McCann (1953) 90 CLR 425
Pacific Associates Ltd v Baxter Co [1990] 1 QB 993
Pedler v Richardson (Supreme Court of NSW, Young J, 16 October 1997, unreported) BC 9705263
Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd (2002) 18 BCL 322
Perini Corporation v Commonwealth [1969] 2 NSWR 530
Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 113 ALR 30
Sutcliffe v Thackrah [1974] AC 727
Turner Corp Ltd v Coordinated Industries Pty Ltd (1995) 11 BCL 202
Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251
Watson v Foxman (1995) 49 NSWLR 315

TEXTS CITED: Brookings on Building Contracts, 4th Edition, 2004 LexisNexis Butterworths
Keating on Building Contracts, 6th Edition, 1995, Sweet & Maxwell
Keating on Construction Contracts, 8th Edition, 2006, Sweet & Maxwell
Tobin, Concurrent and Sequential causes of Delay, (2008) 24 Building and Construction Law Journal 10
Hon Mr Justice Byrne, Total Costs and Global Claims, (1995) 11 Building and Construction Law Journal 397

PARTIES: Dante De Grazia trading as All Sydney Building Services (Plaintiff)
Nicholas Solomon (First Defendant and First Cross Claimant)
Caroline Larcombe (Second Defendant and Second Cross Claimant)
Timbeck Pty Limited formerly trading as Timbeck Cedar Products (Cross Defendant)

FILE NUMBER(S): SC 2006/0268636

COUNSEL: Ms E Olsson SC (Plaintiff)
Mr I Roberts, Mr M Auld (First and Second Defendants/Cross Claimants)
Mr G Sirtes SC, Mr J Tobin (Cross Defendant)

SOLICITORS: John Carmody & Co (Plaintiff)
Sachs Gerace Lawyers (First and Second Defendants/Cross Claimants)
Thurlow Fisher Lawyers (Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Wednesday 28 April 2010

2006/0268636 Dante De Grazia t/as All Sydney Building Services v Nicholas Solomon & Anor
`

JUDGMENT

The proceedings

1 The proceedings before the Court concern the contractual arrangements entered into between the principal parties in October 2001. There is also a cross-claim pursued by the defendants by cross summons against a supplier of weatherboards.

2 On 17 October 2001 the plaintiff, Dante De Grazia trading as All Sydney Building Services, a licensed Builder, entered into a contract with the defendants, both of whom were registered Architects, to build two houses for the defendants on land situated at 26 and 26A Brown St, Bronte. The contract was in the standard form SBW-2. It included a specification and the drawings as well as other documents.

3 The contract sum was $1,319,935.00 inclusive of GST.

4 The defendants, Nicolas Solomon and Carolyn Larcombe, carried on a practice called Larcombe & Solomon Architects.

5 In 2001 the defendants sought Builders to develop their property. They wanted to build a duplex, in one of which they would live and the other, they would rent.

6 The contract provided that it was to be administered by an Architect. The owners were the Architects nominated to administer the contract. Mr Solomon carried out the day-to-day contract administration. However it is common ground that in the event that any of the causes of action pursued by the plaintiff against the defendants succeed, both of the Architects will be jointly and severally liable.

7 The original date for possession of the site was 1 November 2001 and Practical Completion was to be achieved by 11 September 2002.

8 During the course of the works, the plaintiff suffered various delays and for various reasons, the Architect extended the contract time for completion from 1 November 2002 (the original date) to 17 February 2003 [Memorandum L and S to DDG 28 January 2004 (Court Book 5: 1730)].

9 On 24 December, the plaintiff achieved actual Practical Completion [Notice of Practical Completion (Court Book 5: 1643)]. In working days [defined by the contract Clause 9.3 as days excluding Saturdays, Sundays, statutory or public holidays and RDO’s (rostered days off). The evidence of Mr Solomon was that RDOs are one day a month. T:795.5], the difference between the adjusted date and the actual date of Practical Completion is 206 days [calculated from calendars attached to report of George Zakos 13 August 2008, volume 4 of pale blue Court Book, page 1419 ]. There is a dispute between the parties as to the adjusted date for Practical Completion: the plaintiff contends for March 2003, the defendants contend for February 2003.

10 It is also to be kept in mind that, somewhat unusually, the contract remains on foot. There is still a final certificate to be issued. But for the contract remaining on foot the plaintiff's case may have been pleaded differently as to damages.

The principle issues as between the major parties

11 There are a number of disputes litigated as between the major parties.

12 Ms Olsson SC, the Builder’s counsel, endeavoured to focus throughout the trial on three items so called 'big-ticket items': these being the issues which had arisen concerning windows, cladding and joinery. This was not to be regarded as an abandonment of other variation and delay claims but it was said that because of the relatively small monetary claims involved, the small items could be dealt with fairly swiftly.

13 Without being exhaustive the real issues would least include the following:

i. Whether the Builder complied with the contract provisions in making the claims that are the subject of the proceedings.

ii. Whether the defendants are estopped from raising arguments regarding non-compliance with contractual procedures because neither party performed its works under the contract in strict compliance with the contractual terms or required the other party to so act.

iii. Whether the Builder is entitled to recover any of the amounts claimed.

iv. Whether each or any of the variations claimed are in fact variations entitling the Builder to recover cost.

v. Whether the Builder has demonstrated any delay to the works caused by any of the matters alleged.

vi. Whether the owners in their capacity as the Architect performed their role as Architect administering the contract.

vii. If negative to v, whether the defendants are entitled to any claim liquidated damages and if so, the quantum.

viii. Whether the defendants failed to address requests for details or instructions made by the plaintiff in a timely manner or at all.

ix. Whether the defendants’ conduct contributed to or caused a delay to the plaintiff's ability to complete the works in accordance with the scheduled program.

x. If affirmative to viii, whether the plaintiff is entitled to damages or compensation for that conduct and those delays and if so, the quantum.

xi. Whether the defendants issued instructions which affected the plaintiff's critical path programming and caused him to suffer increased costs, and if so, the quantum of those costs, both in terms of delay occasioned and the appropriate daily rates for the delay.

xii. Whether the Builder is bound by the agreements alleged by the defendants to have been reached in the meeting on 20 June 2003.

xiii. Whether the Builder is required to pay to the owners liquidated damages for the period when the works are said to have been delayed beyond the adjusted date for practical completion.

xiv. Whether the amount of liquidated damages recoverable by the owners is $162,750.00 or some other amount. If so what is that other amount?

xv. Whether the works are defective as alleged by the owners.

xvi. If so, whether the owners are entitled to recover the cost of rectifying those defects as assessed by the owners’ expert Mr Abbott or some other amount.

xvii. Whether Timbeck made the representations alleged.

xviii. Whether the representations by Timbeck were false.

xix. Whether Timbeck has engaged in misleading and deceptive conduct.

Trade Practices Act

The limited reference out

14 During the hearing the parties agreed to refer a particular matter out for enquiry to a referee. The matters which were thereafter so referred were identified as follows:

As to the matters contained in paragraphs C18 to 21 (inclusive) of the amended cross-claim filed on 29 March 2007 :

(a) Whether the items listed in the joint report of the experts filed on 4 February 2010 are defects under the contract;

(b) If so, how those defects should be rectified;

The plaintiff’s “Road Map” of results

Road map guide

15 The Court sought the assistance of counsel in drawing a roadmap in order to identify the sundry permutations depending as one or other of the parties may succeed on certain issues and all hail on other issues.

16 It is for obvious reasons, convenient to set this roadmap out in detail:

The plaintiff abandoned paragraphs 17 to 23 of the Further Amended List Statement (FALS) at the outset of the hearing.

Paragraph 24 was amended so that only the following sub- paragraphs were pressed:

(i)– (vi) inclusive

(viii) – (ix)

(xi)

(xiii)

(xvii)

(xx)

(xxiii)

(xxvi)

Items (iii) (windows and doors), (xvii) (cladding) and (xx) (joinery) were pressed as the ‘big ticket’ items.

If any or all of the ‘small’ items are found to have been established by the evidence, the value claimed should be allowed, there being no contradictory evidence as to quantum.

Some, but not all, of the ‘small’ items also attract a delay claim and a delay cost. If the item is accepted by the Court and a delay to the works is also found, then the number of days delay ought to be identified and flagged. If and only if none of the ‘big ticket’ items are found, then these delays claims and associated costs will be relevant.

(i) the evidence with respect to the windows and doors was that the works were delayed by approximately 31 days (a figure Mr Zakos calculated and accepted). Although the period of delay occurred in 2002, the length of the delay should be added to the date for Practical Completion.

(ii) If the cladding claim is accepted, the delay to the works should be measured from the date on which the work was discovered to be leaking water (23 February 2003) to the date upon which the remedial work was completed which was 3 July 2003 [DG 2: 422 Letter from L and S to ASBS re ‘Draft statement – in confidence’ ] (which is 88 working days).

Since these days overlap each other (to the extent delay is allowed at all) the delay is as follows:

If the windows only are allowed, the adjusted date for PC should be 4 April 2003 (ie 31 days);

If the cladding only is allowed, the adjusted date for PC should be no earlier than 5 July 2003 (90 days allowing for a few days to finish associated works)

If the joinery only is allowed, the adjusted date for PC should be no earlier than 17 December 2003 (or more than 190 days) which the Builder contended was the date on which the project was completed.

If the windows and joinery only are allowed, the adjusted date would be 5 July 2003.

If the windows and cladding and joinery are all found, the adjusted date should be 17 December 2003.

The daily rate for delay costs should be either $1,000.00 (per Zakos calculation) or $858.00 which is calculated in accordance with the industry accepted method of dividing the figure for preliminaries by the number of days in the job.

Preliminaries $180,000.00 [ Builder’s tender CB 2/80
Divided by 42 weeks (number of weeks in job per original completion date)

Subtotal $4,285.70 pw or $857.14 per working day (say $858.00).

The plaintiff’s cases

17 The plaintiff contends as follows:

i. The works reached Practical Completion on 24 December 2003.

ii. The works were varied during the course of construction.

iii. The plaintiff incurred time and cost in carrying out the additional work which resulted from such variations and contends that the defendant Mr Solomon was in breach of his duty as Architect under the contract in his assessment of the plaintiff’s applications for variation claims and extension of time claims.

a) variation claims by the Builder for work that has altered from that shown in the original contract documents, and

v. The plaintiff commenced proceedings in the Supreme Court to recover monies for the variations and delays alleged by him to have occurred throughout the progress of the job.

vi. The defendants defends those proceedings and cross-claimed for delay being the difference between the adjusted date for Practical Completion of 17 February 2003 (granted by Solomon) and 24 December 2003 when Practical Completion was actually granted. The claim for liquidated damages was 217 days at $750.00 per day being a total of $162,750.00.

vii. The plaintiff disputes the adjusted date for Practical Completion but agrees that Practical Completion was actually granted on 24 December 2003.

viii. In addition, the defendants allege that the plaintiff carried out work otherwise than in a proper and workmanlike manner and in breach of the warranties implied into the contract by virtue of s.18B of the Home Building Act 1989 . It is alleged that the cost of rectification is in the order of $475,000.00. The plaintiff denies both the defective work and the cost of rectification.

a) the work is not defective as alleged. Both properties have been inspected by Mr Peter Finnane and he has provided expert reports in respect of each property which reveal that the defective work is not capable of ready detection or is minor and easily capable of rectification and the kind of work which would normally be finished in a defects liability period

b) the plaintiff should have been given the opportunity to rectify the items which required attention. He requested access for the purpose of rectification and it was denied. As a result, even if work is found to have been defective, the appropriate measure of damages should be the cost to the plaintiff of rectifying the work rather than the cost of a third party Builder

x. The plaintiff’s claim opened with three main items, being the claim for $41,771.00 for changes to the window schedule; the rectification of the timber cladding of the houses being a claim for $204,082.45; a claim for 195 days of delay in respect of the Woodfast Joinery subcontract, being a claim for $338,500.00. The reasons treat with the ultimate manner in which these claims were put.

The defendants’ cases

18 The defendants contend as follows:

i. The Builder failed to complete the works in the time required by the contract. The original date for practical completion was 11 September 2002. The Builder did not reach practical completion until 24 December 2003. Even allowing for entitlements to extensions of time the Builder should have completed the works by 17 February 2003.

ii. The owners have filed a cross summons in which they claim liquidated damages for the 217 days that the Builder was late in completing the works.

iii. Following the date of practical completion the Builder was required to rectify defects notified to him during the defects liability period. He failed or refused to carry out that rectification work and those defects remain. The owners have also claimed the cost of that rectification work.

iv. More than two years after leaving the site, the Builder sent a series of letters dated 16 May 2005 that raised a number of variation claims as well as claims for delay costs. The owners did not receive the letters until 20 June 2005.

v. The contract includes provisions for the submission, assessment and payment of variations. It also includes provisions dealing with claims for extensions of time and delay costs. None of those provisions were complied with when the claims that are the subject of the proceedings were made. The claims are out of time pursuant to the contract by more the two years.

vi. During the course of the works the owners (through Mr Solomon) and the Builder met to resolve all outstanding variation claims. That meeting took place on 20 June 2003.

vii. During that meeting all positive variations (ie, additions to the works) were agreed by the owners and the Builder. Mr Solomon wrote to the Builder to confirm the agreements. The Builder did not respond to the letter confirming the agreements reached at the meeting.

viii. The only variations not agreed were some negative variations, that is, variations involving a deletion of part of the contract work. There were only very few of those.

ix. During the course of the works the Builder made claims for extensions of time. The owners in their capacity as the Architect assessed all claims that were made. All of the claims relating to delay that are made in these proceedings were first made in mid 2005 about two and a half years after the works reached practical completion. The Builder’s delay claims relate to the variations claim.

x. Despite the agreement on 20 June 2003 and the terms of the contract relating to the entitlement to recover for variations and delay, the Builder’s current claim is for variations and delays not previously notified and never before made pursuant to the contract.

xi. The owners, in their capacity as the Architect, assessed the claims and rejected them. They rejected them both on the basis that they had not been made in accordance with the contract as well as on the respective merits of each of the claims.

xii. The Builder asserts both a contractual entitlement to the amounts for variations and delays as well as damages for breach of the Architect’s obligation to act fairly and reasonably in administering the contract.

a) The Builder has no entitlement to claim other than pursuant to the contract. The contract provides a regime for the claim and payment of variations and other costs such as for delay. The Builder has not complied with the requirements of the contract entitling him to recover any amount for the items claimed.

b) Even if the Builder had complied with the contract entitling him to make a claim, each of the claims made has no merit and the Architect was correct to reject them.

The defendants’ claim against Timbeck Pty Ltd

19 The owners also move on a cross summons against Timbeck Pty Limited.

20 Their contentions in this regard are as follows

i. The Architectural Specification called up weatherboard external cladding available from a particular supplier; Australian Architectural Hardwoods . During the works the Builder asked the owners to allow him to source the weatherboards from a different supplier; Timbeck .

ii. The owners allege that they agreed to that change in reliance on certain representations made by Timbeck in its brochure. After the weatherboards were fixed to the frame there was considerable leaking through the external walls.

iii. The owners contended that the leaking occurred because the Timbeck weatherboards were not suitable as external cladding, contrary to its representations.

iv. Due to their unsuitability the Timbeck weatherboards had to be removed and replaced with weatherboards from another supplier. Those weatherboards have not leaked.

21 The defendants contend that the Builder is responsible but in the alternative bring Trade Practices claims against Timbeck, with respect to their alleged reliance on the suppliers representations in a brochure as to suitability of the weatherboards

22 At this stage in these reasons it is appropriate to identify one or two in limini issues which include certain questions of principle.

Can the Court alter the adjusted date for practical completion?

23 The first question for determination is whether further adjustment can be made to the adjusted date given by the defendant.

24 The difficulties when analysing entitlement to extensions of time (EOTs) (and damages said to flow from delays) where there are overlapping causes are conceptually challenging but this cannot deter the Court from addressing concurrent or sequential causes of delay: Tobin, ‘Concurrent and Sequential causes of Delay’ (2008) 24 Building and Construction Law Journal 10.

25 Rolfe J considered the legal and evidentiary burdens of delay in Turner Corp Ltd v Coordinated Industries Pty Ltd (1995) 11 BCL 202. His Honour concluded a number of propositions at page 221:

i. where the contract provides an extension of time clause, which can accommodate delay caused by the principal and provides a contractual regime or mechanism whereby the delay is to be calculated, the fact the principal may have caused delay has the effect that an allowance should be made in accordance with the contract. It does not have the effect that the contractual provisions are thereby overlooked or put aside or that time is put “at large”.

ii. In any event the principal’s actions must cause “actual” as opposed to potential delay in the sense that the completion of the work is delayed by the actions of the principal. It is not to the point to say that there could have been a delay. It is necessary to establish that delay was caused.

26 The plaintiff contends and I accept that the Court may and should adjust the completion date of this contract. Contract clause 9.2.2 provides that ‘Should progress of the Works be delayed due to causes beyond the control of the Builder, then the Builder shall be entitled to a reasonable extension of time for Practical Completion’. Contract clause 9.2.3 governs the Architect’s role regarding extensions of time:

27 In assessing a request for extension of time, it is implicit that the Architect must act impartially and fairly. The weight of authority dictates that it must be so: Perini Corporation v Commonwealth [1969] 2 NSWR 530; Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd (2002) 18 BCL 322; Sutcliffe v Thackrah [1974] AC 727; Keating on Building Contracts (6^th ed) at 330.

28 The proper interpretation of the above provisions is that the Court must first determine whether the progress of the works was delayed due to causes beyond the control of the Builder. If it was, the Builder was entitled to a reasonable extension of time (Contract clause 9.2.2). The Court must determine whether the Architect granted a reasonable extension of time. If the Architect did not, the Court may retrospectively grant a reasonable extension of time under the contract.

Examining the principles where the Architects are simultaneously the proprietors

29 The principles would appear to include the following:

Brookings on Building Contracts

^th

Brookings’

Aleyn v Belchier

Ngurli & Ors v McCann

Minster Trust Ltd v Traps Tractors Ltd,

“There is no general rule of law prohibiting the influencing of certifiers. Apart from fraud, a duty not to influence can only be imposed by an implication arising from the contract. Such an implication must, in accordance with settled principles, be both reasonable and necessary, and the contract must be examined to see what it yields in this respect.”

At (1954) 3 All ER at p 145 his Lordship observed:

“If two parties agree to appoint an arbitrator between them, it would be, I think, implied in the contract in order to give it business efficacy that neither side would seek to interfere with his independence. If a party to a contract is permitted to appoint his agent to act as arbitrator in respect of certain matters under the contract, a similar term must be implied.

Keating on Construction Contracts

"The Architect is engaged by the employer to act as his agent for the purpose of securing the completion of the works in an economical and efficient manner… But in performing them he most act fairly and professionally in applying the terms of the construction contract. An Architect acting under the ordinary construction contract is the employer's agent throughout notwithstanding that in the administration of the contract he has to act in a fair and professional manner . The Architect is required to act independently and honestly. The duty sometimes described as a duty to act 'impartially' does not overlay independence and honesty so as to encompass natural justice. The duty is one to act 'fairly', so long as what is regarded as fair is flexible and tempered to the particular facts and occasion. These obligations extend to such of the Architects duties as require him to use his professional skill and judgment in forming an opinion or making a decision where he is holding the balance between his client and the contractor. Typical of such duties are those requiring him to issue certificates or to grant extensions of time. An Architect is not however, ordinarily obliged to exercise a power to order a variation where it is fair to do so.

Keating on Construction Contracts

Sutcliffe v Thackrah

Arenson v Arenson

LBC Merton v Leach

Pacific Associates v Baxter

Canterbury Pipe Lines Ltd v Christchurch Drainage Board

Lubenham v South Pembrokeshire DC

Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd

Hickman & Co v Roberts

‘Had you not better call and see my clients, because in the face of their instructions to me I cannot issue a certificate, whatever my own private opinion in the matter’. The House of Lords had no difficulty in concluding that the adjudication of the Architect was not binding upon the contract, the Architect having failed altogether to preserve that attitude of independence which was required of him in the discharge of his duties as certifier.

Perini Corporation v Cth

Lubhman Fidelities and Investments v South Pembrook Shire District Council

John Holland Construction and Engineering Pty Ltd v Majorca Projects Pty Ltd

Dixon v South Australian Railways Commissioner

Perini v

Commonwealth

The contract in Perini contained a clause as to delays and extensions of time. The clause was in substance similar to the contract in question in Mr De Grazia’s case. Under the clause the Contractor could apply within a specified time for an extension of time due to delays. A sub-clause provided: “The Director of Works shall, if he thinks the cause sufficient, but not otherwise, by writing extend the time for completion of the works for such period as he shall think adequate …’

both

Returning to the instant proceedings

30 The Architect’s self-interest by reason of their bifurcated position has been strongly urged upon the Court by the plaintiff as an important consideration to be closely kept in mind. The plaintiff’s contention is that a close examination of the Architect’s conduct through the whole of the building project makes clear that the requisite independence which was required of him was very often absent.

31 Certainly in the present proceedings the Court is justified in the closest analysis of whether or not this claim by the plaintiff is made good by the evidence. The simple fact is that obligation of the Architect to act impartially must be very carefully monitored. The question for the Court is as to whether or not the obligation to act impartially was in fact breached or whether, notwithstanding their bifurcated position, the Architects have not been shown to have breached their duty of impartiality. The matter inheres in the detailed evidence and in the assessment of the credit of the principal witnesses.

32 For the reasons exposed below, the essential finding is that on a number of occasions Mr Solomon indeed breached the relevant contractual duties as to his role, whether it be conscious or unconscious.

Examining the contract in focus in the present proceedings as regards the Architect's role

33 The contract does not include an express provision prescribing how the Architect is to act. However, it is clearly consistent with the contract as a whole to imply such a term: cf Brookings at p 135, footnote 69.

34 The following terms are all consistent with the Architect having a duty to act in an impartial manner:

i. Under Contract clause 5.2.1 the Architect is authorised to issue instructions to the Builder where this Agreement so requires or provides;

ii. Under Contract clause 5.1 the proprietor [in this case effectively the Architect] is excluded from giving instructions to the Builder or acting contrary to any Architect’s instruction;

iii. Under Contract clause 5.2.3 the Architect is authorised to act as the assessor, valuer or certifier where this Agreement so requires or provides;

iv. Under Contract clause 6.8 the Architect may notify defects etc to the Builder after the date of Practical completion, and the Builder is to make good such defects at the Builder’s own cost, unless the Architect instructs otherwise;

v. Under Contract clause 9.1 the Architect is to judge when the stage of practical completion is met;

vi. Under Specification clause 1.23 the Architect is to take notes at site meetings;

vii. Under Contract clause 9.2.3 the Architect is to determine whether an extension of time for Practical Completion shall be granted and the extent thereof;

viii. Under Contract clause 10.9 where the time for Practical completion has been extended on grounds of delay caused by one or more of specified reasons, the Architect, upon receipt of a notification of loss or expense incurred by the Builder as a result of such delay, is to make an addition to the Contract Sum as the Architect considers reasonable;

ix. Under Contract clause 10.6 the Architect is to value any variation on a on a fair and reasonable basis having regard to specified matters;

Relevant provisions of the contract documents

35 Without being exhaustive the following represents an analysis of a number of the provisions of the contractual documents required to be closely kept in mind:

a) In what follows it is to be noted that t he documents listed in Appendix Item B4 constitute ‘The entire, final and concluded agreement between the Proprietor and the Builder relating to the execution of the works …’: Lump Sum Contract clause 1.2.4. These documents are: the Lump Sum Contract (‘the Contract)’, the Specification document (‘the Specification’) and several other specified drawings and documents. Under Contract clause 2.3, in the event of any ambiguity, discrepancy or inconsistency between the contract documents, the order of precedence set out in Item D of the Appendix to the Contract applies: the Contract is given the highest precedence, followed by the Specification and then the drawings.

Contract clause 5.2 Architect’s Authority

The Proprietor and the Builder expressly agree that the Architect is hereby authorised:

5.2.1 to issue instructions to the Builder where this Agreement so requires or provides; …

5.2.3 to act as the assessor, valuer or certifier where this Agreement so requires or provides.

Contract clause 5.3 Architect’s Instructions

Any instruction which may be given by the Architect shall be in writing, and signed by the Architect, and shall be within the general scope of the Works as contemplated by this Agreement…

Except where this Agreement otherwise provides, the Architect may give an instruction orally but shall promptly confirm it in writing. If the Builder in writing requests the Architect to confirm an oral instruction, the Builder shall not be bound to comply with the instruction until the Architect does so.

Contract clause 5.4 Compliance with instructions

Contract clause 6.1 Construction Methods

The Builder is and shall remain responsible for all construction means, methods, techniques, sequences and procedures employed and to be employed by him in and about the execution of the Works and for co-ordinating all portions of and the execution of all portions of the Works and the Architect shall not be entitled to issue any instructions as to these matters.

Contract clause 6.6 Materials and Workmanship

All materials and standards of workmanship shall be in conformity with this Agreement provided that:

6.6.1 In circumstances where material or workmanship so described or shown is not reasonably procurable the Builder shall seek the Architect’s instructions…

Specification 1.23 Site meetings

Throughout the course of the Contract, site meetings shall generally occur on a once per week basis. At all times the Builder shall attend. Additional meetings may be called by the Architect or Builder should the situation warrant.

Under Contract clause 1.2.12 “Variations” is defined as any of the following:

Increases or decreases in or omissions form the Works.

Changes in the character of quality of any material or work.

Changes in the levels, lines, positions or dimensions of any part of the Works.

Execution of additional work.

Contract clause 6.7 Variations

Subject to any other provisions of this Agreement, the Architect may instruct the Builder to carry out variations.

Notwithstanding any other provisions of this Agreement, the Builder shall not be obliged to execute any Variation (except a variation arising from the provisions of clauses 3.2 or 6.3) if within 5 days of receiving the Architect’s Instruction to do so the Builder shall make to the Architect written objection provided always that such objection is not made unreasonably or vexatiously.

Contract clause 10.6 Valuation of Variations

Unless otherwise agreed, any Variation (including a Variation to the work of a sub-contractor or supplier identified under clause 4.2) shall be valued by the Architect on a fair and reasonable basis having regard to the rates and prices (if any) shown in Items M1 and M2 of the Appendix but varied so far as reasonably necessary in respect of relevant alterations of award rates and conditions since the date of this Agreement.

10.6.1 Where the Variation results in an addition to the Contract Sum, the cost therefore, together with the percentage stated in Item N of the Appendix shall be added to the Contract Sum ….

10.6.3 Any delay costs and expenses arising from the Variation shall be added to the Contract Sum.

Specification clause 1.25 Contract Variations

Contract clause 9.3 provides:

Where under the provisions of this Contract any notice is to be given or any other matter or things is to be done in a stated period of days, the following days shall not be counted, namely:

Contract clause 1.3 Builder’s Obligations

The Builder shall: …
1.3.3 bring the Works to Practical Completion by the Date for Practical Completion.

‘Practical Completion shall mean that state in the execution of the work under the Contract when such documents and other information required under the Contract which, in the opinion of the Architect, are essential for the use, operation and maintenance of the Works have been supplied, and the Works are substantially compete except for minor items’ …

Contract clause 9.1 Practical Completion

The Architect shall decide the date when in the Architect’s opinion the Works have reached a stage of Practical Completion and shall thereupon notify in writing the Proprietor and the Builder accordingly …

Specification clause 1.22 Construction Program

Within the first two weeks of the Contract, the Builder shall provide a construction program showing the dates by which or the times within which the various states or parts of the work under the Contract are to be executed, and shall adhere to that program unless a deviation is approved by the Architect.

The program shall be updated monthly.

Specification clause 1.26 Extension of time

Requests for extension of time to the contract period must be submitted in writing to the Architect for consideration .
The Architect must respond in writing within 5 working days to an extension of time request.

Delay in activities which are not critical to the construction program shall not justify extension of the time for Practical Completion of the Works.

Contract clause 9.2 Delays

9.2.2 Should progress of the Works be delayed due to causes beyond the control of the Builder, then the Builder shall be entitled to a reasonable extension of time for Practical Completion.

9.2.3 The Architect shall determine whether an extension of time for Practical Completion shall be granted and the extent thereof and shall so notify the Builder in writing within 10 days of recept of the Builder’s notice under subclause 9.2.1 or where applicable subclause 9.2.1.2 …

Contract clause 10.9 Costs of delays

Where the time for Practical Completion has been extended on the grounds of delay caused by one or more of the following reasons:

10.9.1 by reason of Architect’s Instructions, other than under clause 6.6 with respect to standard of materials or workmanship;

10.9.2 delay by the Architect in giving necessary instructions requested by the Builder in writing;…

.

Contract Clause 10.10 Liquidated and ascertained damages

If the Builder shall fail to bring the Works to Practical Completion by the Date for Practical Completion then:

10.10.1 The Architect may give notice in writing to the Builder and the Proprietor not late than 20 days after the date of Practical Completion that in the Architect’s opinion the Works ought reasonably to have been brought to Practical Completion on some earlier date stated in that notice not being earlier that the Date for Practical Completion.

10.10.2 If such notice is given the Architect using the rate stated in Item P of the Appendix shall calculate and advise the Builder and the Proprietor of the total value of the Liquidated and Ascertained Damages. The Proprietor shall then determine and advise the Builder if damages will apply, and the Builder, if so required, shall pay or allow the Proprietor the sum calculated by the Architect.

Contract Clause 4.1 Sub-contacting

The Builder may sub-contract any part or parts, but not the whole, of the Works. The Builder, by sub-contracting, shall not be relieved or any of the Builder’s responsibilities under this Agreement.

Under Contract clause 4.2.1 the Architect is given the opportunity to instruct the Builder to use a particular subcontractor, however the Builder is not bound to accept the instruction.

Contract clause 4.2 Identification of Supply and Sub-contract Work

4.2.1 The Architect shall issue instructions in respect of any materials or goods or work which are the subject of a Provisional Sum referred to in clause 10.7 and the Builder shall make arrangements for supply or enter into sub-contracts in accordance therewith and consistent with the Builder’s obligations under this Agreement, provided that should the Builder have reasonable objection to any instruction, then the Builder shall not be bound to accept the instruction but shall as soon as practicable notify the Architect of this objection and seek the Architect’s further instructions.

4.2.2 The Architect shall not invite tenders pursuant to sub-clause 4.2.1 in such a way as to prevent the Builder from obtaining discount for prompt payment where this is customarily allowed.

Contract clause 4.5 Bankruptcy/Default or identified suppliers or sub-contractors

In the event that any supplier of materials or goods or sub-contractor carrying out works identified pursuant to clause 4.2:

4.5.1 Commits or becomes the subject of any one of the insolvency events included in clause 12.4 or;

4.5.2 defaults in such a way as would entitle the Builder to determine the supplier’s or sub-contractor’s employment under the supply or sub-contractor agreement; then

the Builder shall notify the Architect in writing which notice shall be left at or forwarded by certified mail addressed to the address of the Architect.

Contract clause 1.3 Builder’s Obligations

The Builder shall: …

1.3.2 regularly and diligently execute and complete the Works in accordance with this Agreement to the reasonable satisfaction of the Architect; and

Contract clause 5.5 Employment of others on Builder’s default

If within a reasonable time after receipt of a written notice form the Architect requiring compliance with any Architect’s Instructions the Builder does not comply therewith then:

5.5.1 The Architect may issue a second notice to the Builder requirement compliance within a reasonable time to be stated in the notice;

5.5.2 if the Builder does not comply with the second notice for the Proprietor may employ and pay others to execute any work whatsoever which may be necessary to give effect to such instructions of the Architect; and

5.5.3 except in the case of an instruction to which the Builder has made valid objection under the provisions of clause 6.7 all reasonable costs incurred in connection with the execution of such work and which the Proprietor would not have incurred but for the Builder’s failure to comply with the instructions, shall be recoverable from the Builder by the Proprietor as a debt. Such costs may be deducted by the Proprietor from any moneys due or to become due to the Builder under this Agreement.

Contract clause 6.8 Making good defects

Contract clause 10.1 Progress claims

At intervals as nominated in Item J of the Appendix (or less at the discretion of the Architect) the Builder may submit to the Architect claims for progress payments, including a statement of the Builder’s valuation of work done.

Contract clause 10.2 Progress Certificates

Within 5 days of receiving a progress claim, the Architect shall issue to the Builder a Progress Certificate showing:

10.2.1 The contract value of work done as assessed by the Architect;

10.2.2 the amount of Retention (if any);

10.2.3 the total amount previously certified;

10.2.4 the amount due to the Builder, and

10.2.5 any amount which the Proprietor is entitled to deduct pursuant to clause 10.14.

Contract clause 10.3 Differences between Claims and Certificates

Should the amount of any Progress Certificate issued by the Architect pursuant to clause 10.2 differ from the amount claimed by the Builder under clause 10.2 the Architect shall at the time of issue of such Certificate provide to the Builder in writing particulars of that difference.

Contract clause 10.4 Progress payments

Within the time stated in Item K of the Appendix of receiving any Progress Certificate, the Proprietor shall pay to the Builder the amount stated on the Certificate.

10.5 Failure to Issue or Pay Progress Certificates

Contract clause 10.7 Provisional Sums

A Provisional Sum (whether described as a Provisional Sum or Prime Cost Sum) means a sum included in the Contract Sum for:

10.7.1 Work materials or goods expressed to be executed or supplied by the Builder; or

10.7.2 the supply and fixing of materials or goods or the execution of work or the fabrication or manufacture and supply or materials or goods particular to and exclusively for Works by persons to be identified by the Architect under clause 4.2.1.

10.7.3 Fees payable under sub-clause 6.3.

10.8 Adjustment of Provisional Sums

In the event of the total amount expended in respect of all Provisional Sums:

10.8.1 Exceeding the total amount therefore included in the Contract Sum the amount of the excess together with a percentage thereof as stated in Item N of the Appendix shall be added to the Contract Sum.

10.8.2 Being less than the total amount therefore included in the Contract Sum the amount of difference shall be deducted from the Contract Sum.

If any dispute or difference (a dispute) concerning this Agreement shall arise between the Proprietor or the Architect on the Proprietor’s behalf and the Builder, then either party may give to the other written notice of the dispute delivered by hand, sent by certified mail or sent by facsimile transmission.

Within 5 days after serving a notice of dispute, the parties shall confer to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having the authority and power to agree to settle the dispute and, as appropriate, to agree on a method of resolving the dispute. All aspects of every such conference except for the fact of occurrence shall be privileged and without prejudice.

The parties’ final submissions regarding compliance with the contractual procedures

36 Following the Court having reserved its judgment the plaintiff sought to plead that the defendants were estopped from raising arguments regarding non-compliance with the relevant contractual procedures, or that it would be unconscionable to raise such arguments, against Mr De Grazia’s claims. This estoppel or unconscionable conduct was said to exist because neither party performed its works under the contract in strict compliance with the contractual terms nor required the other party to so act.

37 Ms Olsson made two further arguments that are dealt with below.

38 There is an initial question of whether Ms Olsson’s amendment to add the estoppel/unconscionability point should be allowed.

39 In this regard, Ms Olsson submitted that the defendants’ pleadings did not specifically raise the provisions of the contract and plead a time bar to the plaintiff’s claims for variations, extensions of time or delay costs: rather, the claims were denied. Therefore the plaintiff, not being on notice that a time bar only might be argued, did not put on a reply pleading estoppel. Ms Olsson further submitted that the defendants did not conduct their case as if the time bar provisions were fatal to the plaintiff’s case: rather they argued the merits of the claims for variations, extensions of times and delay costs. Thirdly, Ms Olsson submitted that since the matter was argued in that way and evidence led both as to the manner in which the contract was performed and as to the correspondence and other documents relating to the various claims of the plaintiff, it was difficult to see where the prejudice to the defendants occurred. Finally, Ms Olsson contended that plaintiff did not, by virtue of the proposed amendments, seek to re-open or re-agitate any of its contentions.

40 The defendants opposed the plaintiff’s proposed amendment to its pleadings. The defendants’ counsel, Mr Roberts, addressed Ms Olsson’s contentions in turn. Firstly, as to the time bar issue, his essential submission was that the plaintiff must have known from the outset that the defendants would rely on failure to comply with the contractual provisions with regard to instructions, variations and delays. This was said to be because the Architect had on 30 June 2005 rejected the Builder’s claims on that basis. Secondly, as to the defendants conduct of the case, Mr Roberts submitted that the defendants had made it abundantly clear that the relevant contractual provisions would be relied upon, and the fact that they addressed the merits of Mr De Grazia’s claims did not disentitle them from so relying. Thirdly, as to the question of prejudice, Mr Roberts submitted the defendants would be prejudiced by having to ask the Court for leave to reopen their case. It was said the defendants would need to rely on additional documentary evidence to meet the new case on estoppel, and in particular to show that they conducted themselves in a belief that they were bound by the contract’s administrative provisions. Finally, Mr Roberts submitted that the fact the plaintiff did not seek to reopen his case or re-agitate any of his contentions did not avoid or reduce the need for the defendants to reopen their case, since the absence of any new evidence did not necessarily mean the defendants would not be adversely affected by the amendment.

Decision as to amendment

41 In my view the defendant has not identified with the necessary precision, the sorts of prejudice which would persuade the Court not to grant the leave to amend now sought. There are cases [and this is such a case] where the manner in which the proceedings have been conducted means that a party is entitled to rely upon matters such as now put forward by the plaintiff: specifically that the defendants pleadings did not specifically raise the provisions of the contract and plead a time bar to the plaintiff’s claims for variations, extensions of times or delay costs: rather, the claims were denied. Hence the plaintiff, not being on notice that a time bar only might be argued, did not put on a reply pleading estoppel.

42 There is also substance in the plaintiff’s contention that the defendants did not conduct their case as if the time bar provisions were fatal to the plaintiff’s case: rather they argued the merits of the claims for variations, extensions of times and delay costs.

43 I accept that since the matter was argued in that way and evidence led both as to the manner in which the contract was performed and as to the correspondence and other documents relating to the various claims of the plaintiff, it is difficult to see where the prejudice to the defendants occurs.

44 For those reasons the application for leave was allowed.

The substance of the estoppel/unconscionable conduct argument

45 Ms Olsson’s arguments as to the substantive aspect of the estoppel/unconscionable conduct argument have been outlined above.

46 In addition to his submission against allowing the amendment, outlined above, Mr Roberts made various submissions during final argument relevant to this issue.

47 Mr Roberts in final submissions outlined in detail the contractual provisions governing variations and extensions of time. He submitted that the contractual requirements existed for the beneficial purpose of ensuring certainty for both parties in their dealings. Mr Roberts submitted that it was necessary to examine the contractual requirements because the plaintiff’s claim was pleaded as the Architect having breached his duties in administering the contract.

48 The final version of the plaintiff’s pleading makes clear that the claim is framed as a breach of the Architect’s contract administration duties, for which the proprietors are said to be liable. Specifically, it alleges the plaintiff carried out variation work at the direction of the Architect, and the Architect failed to properly value this work as required by Contract clause 10.6. Furthermore, the plaintiff claims delay costs which were said to result from these variations. It was alleged that the plaintiff claimed extensions of time under Contract clause 9.2 but the Architect failed to properly assess these claims in breach of Contract clause 9.2.3.

49 Mr Roberts also submitted that Mr De Grazia’s allegation that Mr Solomon verbally agreed to a range of variations and extensions of time was unlikely to be true, given both Mr Solomon’s tendency to document things and the contractual requirement that these matters be in writing.

50 In reopening their case, the defendants sought to make out the proposition that the parties did regard themselves as bound by the contract terms. The defendants said this was apparent from a group of documents –which they adduced- that evidenced the parties’ conduct in relation to various contractual procedures, including extensions of time and variations.

Decision as to the substance of the estoppel/unconscionable conduct argument

51 Ultimately, Ms Olsson’s submission is accepted for the following reasons:

ii. It is true that the additional documentary evidence adduced by the defendants demonstrates that in a substantial number of instances the parties appear to have regarded themselves as bound by the contractual procedures. However, in significant other instances – outlined below in these reasons – the parties did not act in compliance with the relevant contractual procedures. Some of the parties’ contractual breaches concerned key areas of their relationship and some were of an ongoing nature. Such breaches support the alternative argument, that the parties did not regard themselves as strictly bound by the relevant contractual terms.

iii. A prime example of the parties’ disregard for the contractual procedures was that although at trial the defendants drew on the Builder’s failure to ever produce an adequate construction schedule, the documentary evidence supported Ms Olsson’s contention that for most of 2002 Mr Solomon had not taken issue with this failure. In this regard, although Mr Roberts was able to point to a request for a construction schedule dated 11 December 2001 - at the outset of the project- the next request for an updated construction schedule was dated 28 November 2002.

iv. Furthermore, Ms Olsson was able to point to two areas of real importance –outlined in these reasons- where Mr Solomon had breached his contractual obligations. The present is an example of a full-blown building case where the Builder and the Architect for a myriad of reasons, some small and some large, breached their contractual obligations.

The principle in Liebe v Molloy

52 In addition to the estoppel argument, Ms Olsson submitted that the plaintiff’s variations ought to be considered because the principle in Liebe v Molloy (1906) 4 CLR 347 had been complied with.

53 The Liebe decision was usefully summarised by Priestley JA, Samuels JA agreeing, in Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 271-272:

Liebe

54 In Update, Liebe was distinguished on the basis that the extra work in question in Update was not ‘outside the contract’ in the Liebe sense of being done solely because of a request by the proprietor’s Architect and being clearly additional to what was required in order to complete the contract work for the contract price: (1990) 20 NSWLR 251 at 274G, 277D.

55 The principle is further discussed in Brookings at [10.8]. In the present case, the principle in Liebe, as interpreted in Update, also plays a part in supporting Mr De Grazia’s claims for purported variations.

56 Ms Olsson’s third submission in this area of the case was that the variations pressed by Mr De Grazia, excluding the cladding, were notified while the contract was still on foot.

The way forward

57 It seems appropriate to commence with an examination of the credit of the witnesses called.

Mr De Grazia

58 Generally I was impressed with the evidence given by Mr De Grazia. By reason of the consensual decision of the parties to have the evidence in chief of the major witnesses dealt with viva voce, it was necessary for him to slowly and carefully travel through the principal events. He accomplished that exercise well and where he was unable to recall a particular event or was unsure of himself, he made that clear. His recollections were close enough to the very extensive site meeting notes and to the correspondence which had passed between the parties as to be impressive. He was in the witness box for a very considerable time and the cross-examination was careful and pointed. As one may expect, the cross examiner from time to time was able to establish that a recollection of Mr De Grazia did not accord with a particular document or was inconsistent with some other testimony. But given the number of areas over which Mr De Grazia was cross-examined and making allowances for the odd occasion when by reason of his accent he found difficult to make himself understood, I would provide him as a witness of credit.

59 Later in these reasons the Court deals with the substantial attack on his credit concerning a particular letter said by Mr Solomon to have been fabricated after the event.

Mr Solomon

60 Likewise I was impressed with the evidence given by Mr Solomon. He too had to give his evidence in chief viva voce and also in that regard gave clear evidence exhibiting a huge command of detail assisted by his copious site minute notes and correspondence. There were however a number of areas where it seemed to me that his protestations of having been impartial in his role as administering the contract could not be accepted. It is obviously very difficult for an Architect at one and the same time to give impartial evidence of the events which happened when he himself is under cross-examination endeavouring to justify his conduct.

61 One of the very curious circumstances with which the Court has to deal concerns the extremely untidy way in which Mr Solomon purported to put before the Court an album containing huge slabs of photographs of the site, said to have been contemporaneous. It was only in the course of his cross examination that what emerged was that certain categories of those photographs could not be relied upon at all for the simple reason that it was very difficult to be certain as to the date upon which the photographs had been taken. These were not photographs which, as I understood it, had been discovered by the defendants. I regard the whole debacle concerning the photographs [which were often shown to Mr De Grazia during his cross-examination on the basis that he was asked to assume that the photographs were taken on the dates identified in the photographs] as indicative of a sloppy approach to a major Court case where photographic evidence would play such a commanding role. The attempts by Mr Solomon to explain how some segments of the photographs could be relied upon whereas other segments of the photographs could not be relied upon, simply suggested to me that Mr Solomon, notwithstanding his apparent huge command of the detail, had in truth had himself a number of doubts about certain events and times. That he had not until his cross examination said a word about the inability of the Court to rely upon certain categories of the extensive photographs itself does not speak well in terms of his credit, particularly in a situation where he occupied the position as carrying out the day to day contract administration and was purporting to put forward photographs to prove the state of the site and of the building works as captured on camera on particular occasions.

62 His explanation as to the different categories of photographs may be shortly summarised as follows:

i. Firstly, there was a category of digital photos taken from the commencement of the project until about January 2003 which had a date on the JPEG file of the photo. Accordingly, it was possible to know the exact time and date that these photos were taken.

ii. Secondly, there was a category of digital photos taken after January 2003 when the date function on the camera had been turned off. In attributing a date to these photographs, Mr Solomon had accepted that the relevant date was the date on which they had been uploaded onto his computer (this information was available) T:835.10. However, Mr Solomon accepted under cross-examination that the dates attributed to the photographs in this category could not be relied upon as accurate and in some cases could be wrong by approximately one month T:836.23-44. This was related to Mr Solomon’s concession that he had uploaded some photographs twice, which had the result that the same photograph was given two dates T:835.3-8.

63 As the reasons which follow make clear two particular examples, neither of which reflect well on him, may be cited.

64 Mr Solomon of course had a vested interest in the adjusted date being as early as possible because he had a liquidated damages clause accruing at $750 per working day.

65 Firstly, having extended the date for Practical Completion to 17 February 2003, Mr Solomon continued to process the Builder’s progress claims but purported to deduct from the sum owing to the Builder an amount for liquidated damages (said to be accruing at $750 per working day from the adjusted date for completion). The only contractual provision dealing with the entitlement to claim liquidated damages is clause 10.10 and it permits the assessment and claim of liquidated damages only after Practical Completion [for obvious reasons].

66 When the Builder (quite rightly) challenged Mr Solomon's right to make a deduction from a progress certificate for liquidated damages, Mr Solomon agreed not to deduct it in order to “assist the Builder’s cash flow” but continued to include a running calculation of the amount owed in later progress certificates. Not only was he not entitled to make the deduction prior to Practical Completion but his conduct supports the inference which is drawn, that he was including the running total in order to intimidate the Builder.

67 The second example of Mr Solomon's conduct can be seen from his blatant interference in the Builder’s contractual right to perform his own sequencing of the works and negotiate the terms on which subcontractors were engaged. Mr Solomon was not entitled to dictate to the Builder when and at what stage he installed the windows and doors. Clause 6.1 provides that:

68 However, the Architect issued instructions as to when the windows should be installed and this constituted a breach of Contract clause 6.1. This follows from the conclusion reached in these reasons that the Architect’s specification as to the window construction method was inconsistent with the Builder’s contractual power to decide construction methods. Furthermore, although the Architect was contractually entitled to nominate subcontractors for provisional sum items, the Architect was not entitled to dictate the terms on which such subcontractors were engaged. Nevertheless, this is what occurred with regard to the subcontractors engaged for the supply and installation of the fireplace stone and joinery. The point is further explained in relation to joinery and the fireplace stone in these reasons.

The meeting of 20 June 2003

69 It was common ground between Mr De Grazia and Mr Solomon that a meeting took place between them on 20 June 2003 in Mr Solomon's offices in Surrey Hills.

The evidence given by Mr Solomon

70 Mr Solomon's evidence was that he said to Mr De Grazia that the reason for the meeting was to thrash out the unresolved variation claims made up to the date of that meeting if this was possible to agree upon. His evidence was that Mr De Grazia said that he fully understood that that was the reason why they were together and that he had wanted to sort out these matters and did not wish to wait until the end of the project to have an argument over variations.

71 Mr Solomon's notes taken at the meeting were in evidence. His evidence was that they did not reach agreement on any contract variation deductions during the meeting. His evidence was that they had reached agreement on every contract variation addition except for one item –item 6D in Contract adjustment 2, which related to the change to Western Red Cedar weatherboards - which Solomon regarded as a deduction and Mr De Grazia regarded as an addition [T:659-660].

72 Mr Solomon's evidence was that at the end of the meeting he had made the following statement to Mr De Grazia:

73 Mr Solomon's evidence [ T:664] was that Mr De Grazia had said:

74 In the result Mr Solomon's evidence, if accepted, was that two major issues concerning cladding-the initial change from Jarrah to WRC timber and the rectification of the faulty cladding-were specifically exempted from being concluded at the June 2003 meeting [T:819.42-820.25]

75 Mr Solomon’s further evidence was that after the meeting he began to compose a letter to confirm the agreement which they had just made at the meeting and that at about the same time he also received a progress claim [a few days later] namely progress claim 7. The letter which he composed was in the following terms:

Further two-hour meeting in our office on 20/6/03 week confirm your advice that no more cost variation claims will be forthcoming from you.

The above advice covers all work to date and is obviously conditional upon us not instructing you to vary the works at a future date.

76 Additionally the Architects’ then solicitors had written to the plaintiff’s solicitors on 1 July 2003 stating inter alia as follows:

77 The letter which he composed confirmed exactly with what had happened in the meeting of 20 June but says "This letter confirms what has happened and it covers all variations, every single one from the commencement of the project to date, and all those items bar 1 are of course settled. The letter also said that this was obviously conditional upon Mr Solomon not issuing any further variation instructions from that day until completion of the project" The covering letter is in evidence [NS/3 page 136].

Decision

314 Mr De Grazia’s claim in relation to this item was not adequately proven, there being no documentary evidence to support his testimony. Notwithstanding the general findings regarding credit, this claim is rejected.

Kinking the downpipes

315 This claim related to work which Mr De Grazia had undertaken after discussions with Mr Solomon in relation to the downpipe on both houses. Mr De Grazia said he had initially warned Mr Solomon that it was fiddly work, would cost money and delay the pouring of the concrete slab for several days. Mr De Grazia had, after considering the matter, told Mr Solomon that the desired work on the downpipes could be done. Mr De Grazia said Mr Solomon then told him to undertake the work if he could do it successfully. The work was then undertaken.

316 Mr De Grazia testified to a range of costs that were said to result from this work. This included a site diary entry of two plumbers working for eight hours to kink the down pipes, for both houses, $260 worth of extra material, and additionally a range of structural work that resulted from these changes (which created another two days work for a boilermaker) T:124.40-125.2. Mr De Grazia further testified that no other work could be carried out during this period (it was dependent on the concrete slab being pored). Accordingly, his claim included a charge for the hiring of scaffolding that was already on site.

317 Mr Roberts’ final submission was that the work relied upon by Mr De Grazia formed part of the contract works. He pointed out that the complete supply and fix of all downpipes formed part of the contract works as per clause 13.10 of the contract specification. Mr Roberts contended that the kinking in question was concealed stormwater plumbing work which formed part of the contract works and is a common building practice. Mr Roberts further submitted that to the extent that the plaintiff relied on an instruction about changes to the rooflines, no such instruction had been identified. He emphasised that this item was not raised at all during the “Variation settlement meeting” on 20 June 2003. Even though the plumbing was not complete by that date, it was contended that the cost of that trade ought to have been known. Furthermore, Mr Roberts submitted that no invoice to the Builder from the plumbing sub contractor (or any other sub contractor) has ever been produced to substantiate the Builder’s claim.

Decision

318 Mr De Grazia’s claim in relation to this item was not adequately proven, there being no documentary evidence besides the site diary – such as invoices - to support his testimony. Notwithstanding the general findings regarding credit, this claim is rejected.

Roof pitch

319 This claim related to work that Mr De Grazia testified was undertaken to make the pitch to the roof higher on its low point. It was undertaken after a conversation Mr De Grazia recounted where Mr Forbes said the roof pitch had to be altered from the drawings to maintain the head height above the stairs. To undertake this work Mr Forbes had to re-mark out the roof pitch (essentially sketch it out) and reorder two or three pieces of timber. Mr De Grazia testified that there was other work being undertaken at this point (mainly carpentry) and the effect of the remedial work had been that a crane booking had to be rescheduled. He further testified that the overall delay caused to the whole project was three to four days.

320 Mr Roberts’ submission was that the roof pitch set-out adjustment occurred prior to any actual building work in the subject area. It was of a very minor degree and was resolved on the same day that the Architect received the pitching angle query from Mr Forbes. Mr Roberts submitted that Photos 65, 66, 70, 71, 74, 75, 76, 77 & 78 showed the roof framing in place by Saturday 3 August 2002. Mr Roberts further submitted that no additional materials (timbers, nails etc) were required due to this adjustment as it was an adjustment of documented timber members. Mr Roberts pointed out that by 20 June 2003 all roof carpentry was complete and the cost of that trade ought to have been known. This item was not raised at all during the “Variation settlement meeting” on 20 June 2003.

Decision

321 Under cross-examination, Mr Forbes, the site foreman who dealt directly with this issue, agreed with Mr Roberts proposition that an initial roof set-out was carried out, there was an issue that arose, Mr Forbes spoke to Mr Solomon and it was resolved on site, after which the building of the roof commenced T:591.1-8. Mr Forbes gave evidence in chief that the construction of the roof was delayed for at least a day and a half while this issue was dealt with T:510.50-511.2. This was broadly consistent with Mr Roberts’ position that the issue was resolved on the same day that it arose. In contrast, Mr De Grazia gave evidence that this issue delayed the project for three to four days. Mr De Grazia testified that it was necessary to change a crane booking, but no other evidence was produced regarding this issue (Mr Forbes did not address it in his testimony). Having regard to all of the circumstances, the plaintiff is awarded delay costs of one day in relation to this issue.

Splay the balconies

322 Mr De Grazia testified that he built the balconies according to the drawings but they were subsequently changed when the angle of the roof pitch was changed. He further testified that these changes were undertaken upon instructions from Mr Solomon. Mr De Grazia testified that his claim reflected the costs and delays associated with undertaking these changes. He recounted a conversation where he told Mr Solomon this work would result in extra costs and Mr Solomon had said it would be cleaned up in a ‘wash up’ at the end of the job.

323 Mr Roberts submitted that this claim turned on the contractual requirement in clause 7.11 of the specification, that the Builder was required to consult with the Architect prior to construction of the splayed balconies: “method of fixing boards to frame must not pierce membrane. Discuss with Architect prior to construction.” Mr Roberts contended that the method of weatherproofing the splayed balconies was discussed between Mr De Grazia and Mr Solomon and a proposal by Mr De Grazia was accepted Mr by Solomon (who confirmed this with a drawing and a memorandum).

324 In cross-examination Mr De Grazia conceded that he had the relevant details for the construction of the balustrades (which related to the balconies) by June or at least 7 August 2002. 403.40. Mr Roberts submitted photos 74 to 78 show that - despite this issue being resolved in June –the relevant work only commenced around mid November 2002. In cross-examination Mr De Grazia rejected this suggestion, contending that the balcony was built three times for different reasons.

325 Mr Roberts further submitted that by 20 June 2003 balconies 3 and 3A were complete and the cost of that trade ought to have been known. This item was not raised at all during the “Variation settlement meeting” on 20 June 2003.

Decision

326 Mr De Grazia’s evidence of the balconies having to rebuilt – causing a variation and a delay cost – is broadly consistent with that of Mr Forbes’ (who gave evidence of two carpenters having to work for one day to reframe the balcony T:513.10-27). Mr De Grazia testified that he had put this claim together by referring to timesheets and other work that was carried out. Mr Roberts’ submissions in relation to this issue focused on the fact that Specification Clause 7.11 required the Builder to consult the Architect prior to construction of the splayed balconies and despite a discussion and alleged agreement between the parties in June 2002, photographs taken by Mr Solomon were said to show that the relevant work was only undertaken in around mid-November 2002 (and therefore was not critical). Due to the evidentiary problems with Mr Solomon’s photographs, they cannot be accepted as evidence of the progress of the works at their purported dates (as Mr Roberts’ attempted to use them). Without the photographs, this issue turns on findings of credit and accordingly Mr De Grazia’s claim is accepted.

Deletion of pantry stack

327 Mr De Grazia testified that this claim related to work involving the lifting of a drainage stack by 15mm and lifting up the whole ceiling by 15mm. He further testified that Mr Solomon instructed him to do this work, and when the work was undertaken the plumbing was in place and the ceiling frame was in place, although the actual plasterboard was not. The work was performed by the plasterboard contractor and the plumber, and Mr De Grazia had calculated his claim based on timesheets and notes made at the time.

328 Mr Roberts basic position was that this item represented a deletion from the contract works. Mr De Grazia rejected this suggestion in cross-examination. Under cross-examination, Mr De Grazia maintained that he had received an overall variation from his plumber in relation to the project and he knew it included this item from a discussion with the plumber. Mr De Grazia conceded he did not have a document from the plumber, and had instead made an estimate of 30 hours work from his diary records. Mr Roberts suggested this was a variation that Mr De Grazia had compiled in 2005 which did not reflect what had happened on site. Mr De Grazia rejected this suggestion.

329 Mr Roberts further submitted that Mr Solomon’s instruction occurred prior to any overhead plumbing work. Mr Roberts contended that by 20 June 2003 all concealed plumbing work in the kitchen and living areas was complete and the cost of that trade ought to have been known. This item was not raised at all during the “Variation settlement meeting” on 20 June 2003. No invoice from the plumbing sub contractor to the Builder has ever been produced to substantiate the Builder’s claim. The Architect was entitled to reject the claim.

Decision

330 Mr De Grazia’s claim in relation to this item was not adequately proven, with all of the documentary evidence relied upon generated by him or ASBS (he made his claim by referring to timesheets and notes made at the time). Notwithstanding the general findings regarding credit, this claim is rejected.

Louvres

331 Mr De Grazia testified that this claim related to work that had been done to accommodate the louvres which Mr Solomon decided not to proceed with (due to the price in the quote that Mr Solomon received for that item). Mr De Grazia further testified that various work had been done, including drilling, fixing channels in place to take the louvres, and electrical wiring had been provided. Mr De Grazia testified that once the decision not to proceed with louvres was taken the wiring had to be terminated, and some weatherboards where the wiring was penetrating had to be replaced.

332 Mr Roberts submitted that under specification clause 14.16 electrical installation of Aerobrise louvres was included in contract sum (that is, the electrical service is not included in the provisional sum for the louvres). Mr Roberts submitted that the plaintiff had said that a junction box was needed and that weatherboards needed to be replaced, and this evidence was not consistent with that of Mr Forbes. Mr Forbes testified that there was not very much work involved, saying that the wiring was already installed and all that was required was to cap off the wiring to make it safe T:525.210-28. Mr Roberts contended that the weatherboards had not been installed by the date of the instruction (contrary to Mr De Grazia’s testimony).

Decision

333 There is a discrepancy between the evidence of Mr De Grazia regarding the significance of the work required to cap off the electrical wiring and that of Mr Forbes. Additionally, Mr De Grazia did not refer to any documentary evidence to substantiate this claim (the only documents relied upon were letters to Mr Solomon stating the claimed costs). Moreover, Mr De Grazia’s 2005 claim in relation to this item was for three times the amount claimed in 2003, and there was no explanation of this difference (it may be that in 2005 Mr De Grazia had a better opportunity to calculate the claim). Mr De Grazia could have explained the actual costs of this claim by reference to timesheets or invoices for the trades and materials he stated in his 2005 letter were used. Mr De Grazia’s claim in relation to this item is rejected.

Sunhoods

334 Mr De Grazia’s claim for this item was based on two factors: firstly that there had been insufficient detail provided which had caused delay in having the sunhoods fabricated (and caused consequent delays on the whole project) and secondly that the sunhood Mr Solomon specified was more expensive than Mr De Grazia had allowed for. Mr De Grazia testified that he had been instructed by Mr Solomon to attend the Teachers Federation College (Mr Solomon wanted the type of sunhoods appearing on that building) however Mr De Grazia maintained that even after attending, he still required specifications from Mr Solomon.

335 Mr Roberts drew on Mr De Grazia’s concession that he had for some time the documents provided to Hi-Light to obtain the quote, submitting Mr De Grazia could have got a quote much earlier from Hi-Light. Mr De Grazia further conceded that he could have got a quote and presented this to the Architect to confirm whether this was what Mr Solomon was after.

336 Mr Roberts noted that the Architect’s memo of 27 November 2002 provided that the sunhoods were to remain as specified. In cross-examination, Mr De Grazia contended that the actual sunhoods installed were different, although he conceded it was entirely normal for Mr Solomon to have approved the actual sunhoods on shop drawings. Mr Roberts emphasised that some minor information concerning fixing height and location was provided to the Builder and they were installation issues rather than fabrication issues. Furthermore, Mr Zakos conceded that the sunhoods were fully specified.

Decision

337 Mr De Grazia’s claim in examination in chief that he should be allowed a variation because the sunhood specified was more expensive than he had allowed for, is rejected because he did not provide any evidence of what this difference was (his letter to Mr Solomon claiming the sunhood variation did not mention this issue). Mr De Grazia’s claim for the costs of having to attend the Teachers Federation College to understand the sunhood specification is allowed (it is relevant that Mr Roberts did not suggest this was unnecessary T:418.6-21). Mr De Grazia’s claim for ten days delay costs to perform work related to the sunhoods is rejected since his concessions under cross-examination established that he could have acted differently and this may well have reduced any such delay T:415.42- 417.47.

Fireplace Stone

338 Accordingly to Mr De Grazia evidence in chief, this claim had essentially two elements: firstly, delay with respect to the stones (which he blamed on Mr Solomon and the nominated subcontractor) which was said to have delayed the project as a whole; secondly, the costs of work associated with installation of these stones, which were said to be cleaning costs (necessary because of work by the subcontractor, on Mr Solomon’s request, to rectify the stones). Mr De Grazia’s evidence was essentially that he had requested specifications for the firestone to be installed and Mr Solomon had given him a quote from Arte Domus (the eventual subcontractor) asking him to organise it. Mr De Grazia had been unhappy that Mr Solomon had dealt directly with a subcontractor and as part of negotiations between the two parties Mr Solomon had agreed to pay the 50% deposit required by Arte Domus.

339 Mr De Grazia recalled a conversation where Mr Solomon had said the fireplace could not be installed as the tiles were not yet laid, and Mr De Grazia had responded that the fireplace had to be installed before the tiles.

340 Mr Roberts’ final submission was twofold: firstly, since the Fireplace stone was a Provisional Sum item, under Contract clause 4.2 the Architect was entitled to nominate Arte Domus as a nominated subcontractor (as occurred), and Contract clause 4.1 provided that the Builder was not relieved of any responsibilities under the contract by subcontracting the work. Secondly, the Site was not ready for installation of the fireplace as at 12 November 2002 (a point at which Mr De Grazia testified he was waiting for Mr Solomon to provide details regarding the stone).

Decision

341 Mr De Grazia’s claim in so far as it relates to a purported delay in the installation of the fireplace stones is rejected. This part of the claim was only touched on at a high level of generality (Mr De Grazia testified there was a delay to the project, but did not quantify it). Moreover, in Mr De Grazia’s letter of 2005 to Mr Solomon in relation to this claim, it is conceded that the delay in the supply and installation of the fireplace stone (as compared to the scheduled date) did not delay the works. Furthermore, Mr Forbes’ evidence did not convey that there had been significant delays caused by this issue.

342 In relation to the plaintiff’s variation claim for extra cleaning work, the finding is that Mr Solomon in addition to specifying which subcontractor would be used (as he was entitled to do), then unduly interfered in this aspect of the works, for example by arranging what work that the subcontractor would perform (Mr De Grazia appeared to have been excluded from these arrangements). This conduct constituted a breach of the Builder’s right to sequence the works under Contract clause 6.1, which has been outlined above. Having interfered in this way, Mr Solomon could not reasonably expect Mr De Grazia to accept responsibility for cleaning work that was caused by the subcontractor. Therefore, Mr De Grazia’s variation argument should be allowed. However, it should only be allowed to the extent that Mr Forbes corroborated it (his evidence was that cleaning work was created when the stone was first rectified, but the works were not impacted by the second rectification episode T:529.25-530.20. Accordingly, Mr Forbes’ evidence was that there was a couple of hours clearing up work created, as opposed to Mr De Grazia’s claim of three different occasions when cleaning was necessary).

343 Furthermore, I am satisfied that Mr Solomon’s instruction for Mr De Grazia to accept the Arte Domus quote – which Mr Solomon had obtained and negotiated certain terms contained therein – went beyond Mr Solomon’s power to nominate a subcontractor under Contract Clause 4.2.1 and breached the Builder’s right to negotiate subcontract terms. The Builder is given explicit power to subcontract under Contract clause 4.1 and it is apparent from section 4 of the Contract as a whole that it is for the Builder to negotiate subcontract terms.

Fabricate balustrade

344 This issue involves a disagreement over whether Mr De Grazia has been paid for the variation claimed. Mr De Grazia gave evidence in chief that this claim related to a specified section of steel which he could not source in Australia and accordingly had manufactured. Mr De Grazia testified that he had told Mr Solomon that this would cost more money and consequently result in a variation, and had provided Mr Solomon with some verbal costing but not an actual dollar amount. Mr De Grazia subsequently had the work done and made a claim in 2005 which he testified had not yet been paid.

345 In cross-examination Mr De Grazia testified that he had made a claim in writing on 15 November 2002 and conceded that the site minutes of 25 November 2002 recorded at item 31.5 that Mr Solomon had approved this variation. Mr De Grazia testified he was not sure whether the variation had been paid. Furthermore, he appeared to concede that he was not aware of anything to indicate the claim had not been paid under the ordinary progress claim system T:394.1-41.

346 Mr Solomon gave evidence in chief that he approved the amount claimed for the variation and this appeared in the contract sum adjustments he sent to the Builder (exhibit D6) at Item 18A. This covered the Builder’s 2005 claim.

347 Mr Zakos testified that he was not aware of Mr Solomon’s suggestion that this claim was the subject of an approved variation.

348 Given the matters which emerged from Mr De Grazia’s evidence on this issue – and specifically the possibility that he may already have been paid for this variation – the claim is rejected.

Bathroom wall tiles

349 Mr De Grazia made a variation claim for $2,402 for variation in respect of the bathroom wall tiles. Ms Olsson simply referred to the witness to the documents in the appendix to Mr De Grazia’s affidavit that related to this claim.

350 Mr Roberts’ position in relation to this item was that there was no evidence called. Therefore, the defendants assumed that it was not pressed or that it would be rejected because of the lack of evidence.

Decision

351 The bathroom wall tiles were part of a provisional sum item for internal wall and floor tiles. Mr De Grazia provided an invoice showing that the tiles cost $64 per square metre. He claimed that the Architect had incorrectly assessed the cost at $48 per square metre. Mr De Grazia claimed for the difference between these two amounts. Under Contract Clause 10.8 the adjustment of provisional sums is to occur by reference to the total amount expended on all provisional sums. Mr De Grazia is seeking an adjustment for the amount expended on part of one provisional sum. This alone may be sufficient reason for rejecting the claim. However, it could be that the parties were acting in such a way that they were allowing adjustments in relation to parts of particular provisional items. Even if this were the case, the Court does not have sufficient information to assess Mr De Grazia’s claim since there is no evidence of what amount was included in the contract sum for this part of the provisional item, and therefore what adjustment should occur. In all of the circumstances this claim is rejected.

The way forward

352 During argument counsel indicated, as I understood it, that once the essential findings were made by the Court the high likelihood is that they would be in a position to agree on the proper working out of the relevant orders, including for example the dispute as to the adjusted date for practical completion. To the extent practicable in the circumstances, the parties are to endeavour to submit short minutes of order. The roadmap earlier referred to left something to be desired and did not cater for the particular decision reached in respect of the big ticket items, namely that the builder succeeds only on cladding and joinery. The parties are to endeavour to clarify the position. Following that clarification, the Court will be in a position to hand down the decisions on all outstanding remaining matters, which will include the appropriate deduction for exigencies.

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Citations

Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon [2010] NSWSC 322

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CITATION:	Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322
HEARING DATE(S):	15/02/10, 18/02/10, 19/02/10, 22/02/10 - 26/02/10, 1/03/10 - 5/03/10, 8/03/10, 10/03/10 - 12/03/10
JUDGMENT DATE :	28 April 2010
JURISDICTION:	Equity Division Technology and Construction List
JUDGMENT OF:	Einstein J
DECISION:	The parties are to submit short minutes of order.
CATCHWORDS:	CONTRACTS - Building, engineering and related contracts - The Contract - Claim by builder for variations and delay costs - Whether Court can adjust date for practical completion under contract - Whether architect/proprietors estopped from pleading that that builder’s claims were not made in compliance with the relevant contractual procedures and therefore must fail - The principle in Liebe v Molloy - Whether the plaintiff builder’s claims for variations and delays made out on the evidence - Relevant principles where the architects are simultaneously the proprietors - Whether architect had duty to act impartially - Whether this duty breached - Performance of work - Whether it is possible to assess delay where construction programming has not occurred - Whether the expert evidence relied upon by the parties should be accepted - Cross-claim by defendants against builder for defective work - PROCEDURE - Courts and judges generally - Courts - Relevant principles for making a finding of fraudulent conduct - Whether allegation of fraudulent conduct made out - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - Consumer protection - Misleading or deceptive conduct or false representations - Whether brochure produced by cross-defendants was misleading or deceptive - Whether cross-claimants proved reliance on particular representations - Whether causation shown in cross-claim - Whether relevant limitation period had expired - Whether evidence showed that cross-defendants’ product was not fit for purpose.
LEGISLATION CITED:	Evidence Act 1995 Home Building Act 1989 Sale of Goods Act 1923 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Aleyn v Belchier (1758) 28 ER 634 Arenson v Casson Beckman Rutley & Co [1977] AC 405 Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266 Briginshaw v Briginshaw (1938) 60 CLR 336 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Canterbury Pipe Lines Ltd v Christchurch Drainage Board (1979) 16 BLR 86 Dixon v South Australian Railways Commissioner (1923) 34 CLR 71 Fink v Fink (1946) 74 CLR 127 Gould v Vaggelas (1984) 56 ALR 31 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 79 ALR 83 Hickman & Co v Roberts [1913] AC 229 John Holland Construction & Engineering Pty Ltd v Majorca Projects Pty Ltd (1996) 13 BCL 235 Jones v Dunkel (1959) 101 CLR 298 London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 BLR 51 Liebe v Molloy (1906) 4 CLR 347 Lubenham v South Pembrokeshire DC (1986) 33 BLR 39 Lubhman Fidelities and Investments v South Pembrook Shire District Council (1986) 33 BLR 39 Makita (Australia) v Sprowles (2001) 52 NSWLR 705 Medtel Pty Ltd v Courtney [2003] FCAFC 151 Minster Trust Ltd v Traps Tractors Ltd (1954) 3 All ER 136 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Ngurli & Ors v McCann (1953) 90 CLR 425 Pacific Associates Ltd v Baxter Co [1990] 1 QB 993 Pedler v Richardson (Supreme Court of NSW, Young J, 16 October 1997, unreported) BC 9705263 Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd (2002) 18 BCL 322 Perini Corporation v Commonwealth [1969] 2 NSWR 530 Ricochet Pty Ltd v Equity Trustees Executor & Agency Co Ltd (1993) 113 ALR 30 Sutcliffe v Thackrah [1974] AC 727 Turner Corp Ltd v Coordinated Industries Pty Ltd (1995) 11 BCL 202 Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 Watson v Foxman (1995) 49 NSWLR 315
TEXTS CITED:	Brookings on Building Contracts, 4th Edition, 2004 LexisNexis Butterworths Keating on Building Contracts, 6th Edition, 1995, Sweet & Maxwell Keating on Construction Contracts, 8th Edition, 2006, Sweet & Maxwell Tobin, Concurrent and Sequential causes of Delay, (2008) 24 Building and Construction Law Journal 10 Hon Mr Justice Byrne, Total Costs and Global Claims, (1995) 11 Building and Construction Law Journal 397
PARTIES:	Dante De Grazia trading as All Sydney Building Services (Plaintiff) Nicholas Solomon (First Defendant and First Cross Claimant) Caroline Larcombe (Second Defendant and Second Cross Claimant) Timbeck Pty Limited formerly trading as Timbeck Cedar Products (Cross Defendant)
FILE NUMBER(S):	SC 2006/0268636
COUNSEL:	Ms E Olsson SC (Plaintiff) Mr I Roberts, Mr M Auld (First and Second Defendants/Cross Claimants) Mr G Sirtes SC, Mr J Tobin (Cross Defendant)
SOLICITORS:	John Carmody & Co (Plaintiff) Sachs Gerace Lawyers (First and Second Defendants/Cross Claimants) Thurlow Fisher Lawyers (Cross Defendant)