Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd
[2001] QDC 206
•11 September 2001
DISTRICT COURT OF QUEENSLAND
CITATION: Hennessey Glass and Aluminium Pty Ltd v. Watpac Australia Pty Ltd [2001] QDC 206 PARTIES: HENNESSEY GLASS AND ALUMINIUM PTY LTD (Plaintiff)
v.
WATPAC AUSTRALIA PTY LTD (Defendant)FILE NO/S: D523 of 2000 DIVISION: PROCEEDING: Determination of separate questions ORIGINATING COURT: District Court Brisbane
DELIVERED ON: 11 September 2001 DELIVERED AT: Brisbane HEARING DATE: 5 September 2001 JUDGE: McGill DCJ ORDER: Questions answered: 1: No as to supply; Yes as to installation; 2: Yes CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – subcontract – construction of contract – scope of works
Australian Broadcasting Commission v. Australasian Performing Rights Association Ltd (1973) 129 CLR 99 – applied
COUNSEL: P.A. Hastie for the plaintiff
J.K. Bond S.C. and R.C. Shulte for the defendantSOLICITORS: Phillips Fox for the plaintiff
Barwicks for the defendant
This is the determination of certain questions decided in advance of the trial pursuant to r.483. In this action the plaintiff claims from the defendant, a building contractor, money alleged to be owing under a sub-contract between the parties, or in the alternative on restitutionary grounds for work done by the plaintiff and accepted by the defendant. There was originally some dispute as to how the contract was constituted, but that has now been resolved, and the parties are agreed that the contract was in writing and was constituted by an agreed bundle of documents. The plaintiff claimed that there had been wrongful deductions made by the defendant from progress payments, deductions not authorised by the contract, and that the defendant had failed to pay all or part of the amounts payable in respect of a number of variations claimed by the plaintiff in the course of the work. These matters were disputed by the defendant.
Two of the variations in respect of which additional payment was claimed were:
15. Supply hardware to the unframed glass doors to the corporate suites and the cost of installation of hardware: $77,539 together with that part of $6,960, the labour cost of installation, attributable to installation of hardware to these doors.
17. Supply architectural hardware to aluminium framed doors not specified in the scheduled scope of works, together with costs of procurement and supervision: $23,615, together with that part of $6,960 being the cost of installation of this hardware attributable to these doors.
No amounts have been paid in respect of these claims, and it was the defendant’s contention that both were covered by the terms of the original contract. It is apparent that, in the course of performing the sub-contract, a dispute arose between the parties as to whether the supply and installation of the hardware to these doors was covered by the contract, and that was dealt with on the basis that the plaintiff supplied and installed the hardware and the parties would resolve the issue later. The determination of these questions is part of the process of resolving the issue. Both questions involved the determination of the true extent of the scope of the works required to be performed by the plaintiff under the sub-contract.
Settlement agreement
The action had been set down for trial to commence on 3 September 2001, but on 24 August 2001 a settlement agreement[1] was entered into between the parties under which some of the issues were resolved, and arrangements were put in place to resolve other issues. It was agreed that the dispute in relation to certain variations would be submitted to an independent quantity surveyor jointly appointed who would determine as an expert the extent of the work done and hence the amount payable in respect of certain claims. The parties agreed to be finally bound by the results of the measurement and determination.
[1]A copy became Exhibit 1.
The parties also agreed that I would determine separately in advance of the trial the following questions:
“1.Upon the proper construction of the contract, was the supply and installation of hardware to the unframed glass doors to the corporate suites described in the Don Mathieson and Staff Glass Pty Ltd invoice no. 377682 an obligation required to be performed by the plaintiff under the contract such that the performance of that obligation would not entitle the plaintiff to any adjustment of the contract sum under the contract?
2.Upon the proper construction of the contract, was the supply and installation of the hardware the subject of the invoices listed in the calculation detail in respect of variation 17 an obligation required to be performed by the plaintiff under the contract such that the performance of that obligation would not entitle the plaintiff to any adjustment of the contract sum under the contract?”
It was further agreed that these question would be decided on the basis of certain agreed facts, together with any additional facts found on the basis of evidence which I would hear in relation to the determination of those separate questions. The agreed facts were as follows:
1. The plaintiff is and was at all material times a company duly incorporated carrying out the business of design, supply and installation of glazing and curtain walling.
2. The defendant is and was at all material times a company duly incorporated carrying out the business of construction work.
3. On about 23 October 1998 the plaintiff and the defendant entered into a contract (“the Contract”) pursuant to which, upon the terms and for the consideration more particularly set out in the documents comprising the Contract, the plaintiff agreed to supply, fabricate and install aluminium framed and glazed windows and doors (“the Works”) in connection with Project: A273 – Brisbane Cricket Ground Redevelopment Stage 4 (“the Project”).
4. The Contract comprises the executed subcontract document and the following documents:
(a) letter of invitation to tender dated 3 September 1998 being section 1 of the tender document dated 2 September 1998;
(b) instructions to tender dated 2 September 1998 being section 2 of the tender document dated 2 September 1998;
(c) amendments to the general conditions of subcontract being section 3 of the tender document dated 2 September 1998;
(d) scope of works being section 4 of the tender document dated 2 September 1998;
(e) project specification being section 6 of the tender document dated 2 September 1998;
(f) standard specification being section 7 of the tender document dated 2 September 1998 and comprising the following documents –
(i) “Specification 280 Glazing” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 18 East;
(ii) “Specification 280 Glazing” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 5 West;
(iii) “Specification 461 Windows” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 18 East;
(iv) “Specification 461 Windows” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 5 West;
(v) “Specification 410 Hardware” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 18 East;
(vi) “Specification 410 Hardware” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 5 West.
(g) Workplace Health and Safety being section 8 of the tender document dated 2 September;
(h) Quality assurance being section 9 of the tender document dated 2 September 1998;
(i) Project tender programme being section 10 of the tender document dated 2 September 1998 with annexed tender set;
(j) Project drawings being section 11 of the tender document dated 2 September 1998 and comprising the listing of drawings entitled “Latest Revisions for Window Trade Package as [at] 03-Sept-98”;
(k) Letter dated 14 September 1998 and attached addendum number 1, comprising;
(i) “Specification 465 Doors” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 18 East;
(ii) Door Schedule issue dated 17 August 1998 Revision C
(iii) “Specification 465 Doors” dated August 1998 Revision A, Brisbane Cricket Ground Stage 4 – Extensions to Northern Stand, 5 West;
5. The Contract is contained in the attached volume marked “A”[2]. The Project drawings referred to in the listing of drawings entitled “Latest Revisions for Window Trade Package as [at] 03-Sept-98” are contained in the attached volume marked “B”[3].
6. The plaintiff’s variation claim no. 15 asserts a variation claim covering supply and installation of hardware to the unframed glass doors to the corporate suites. The hardware which is the subject of the claim is that described in Don Mathieson & Staff Glass Pty Ltd invoice no. 377682 which is attached and marked “C”[4]. The defendant denies liability in respect of the plaintiff’s claim.
7. The plaintiff’s variation claim no. 17 asserts a variation claim which relates to hardware to aluminium framed doors. The hardware which is the subject of the claim is that which is the subject of the invoices listed in the calculation detail in respect of variation 17 which is attached to the plaintiff’s statement of claim as filed. The invoices to which reference is made will be tendered at the hearing of the separate questions[5]. The defendant denies liability in respect of the plaintiff’s claim.
[2]This became Exhibit 2.
[3]This became Exhibit 3.
[4]A copy of this became Exhibit 4.
[5]The invoices referred to in the calculation detail, and associated order forms, became Exhibit 5. The plaintiff at the hearing abandoned its claim in respect of a number of these, and copies of the ones remaining in issue, and an amended list, became Exhibit 6.
The parties were further agreed on the consequences which would follow depending on how those questions were answered, and that the balance of the proceedings would be adjourned to a date to be fixed so as to enable measurement to be completed and those questions to be determined, with the parties then undertaking to negotiate in good faith on the resolution of all remaining matters in issue in the action. If that did not produce a final determination of all matters in issue, then the trial could be relisted.
I made an order for the separate determination of those questions in advance of the trial in accordance with that agreement, and ordered that the trial otherwise be adjourned to a date to be fixed. The hearing in relation to that determination was originally listed to commence on 3 September: for listing purposes and with the co-operation of the parties, that was subsequently delayed to 5 September.
Unframed glass doors
The basic obligation on the plaintiff under the sub-contract is contained in clause 2 of the sub-contract document, a copy of which is part of Exhibit 2:
“The sub-contractor will execute and complete the Works … for the contract sum stated in the second schedule …”
The expression “the Works” was defined by clause 1 of that document as meaning:
“The whole of the works referred to in the second schedule hereof to be executed in accordance with this contract, including all variations ordered pursuant to this contract.”
The term “contract” in that definition is itself a term defined in that clause as meaning:
“This document and the plans and specifications referred to in the schedule hereto and such documents, if any, as may be deemed to be incorporated herein either expressly or by necessary implication.”
The agreed facts include, in clause 4, that the contract between the parties comprised the executed sub-contract document (from which I have just quoted) and a number of documents including “scope of works”, and door schedule dated 17 August 1998, and certain specifications documents being part of the standard specification, namely 280 glazing, 410 hardware, 461 windows and 465 doors for part of the head contract identified as “18 east”, and a similar set for that part of the head contract identified as “5 west”. The specifications for each of these parts are apparently identical; I was not referred to any difference in the course of the hearing, nor was it suggested that there was any relevant difference. Other documents incorporated in the contract are set out in the statement of agreed facts.
The first schedule to the subcontract identified the work being undertaken under the head contract of the defendant as “grandstand and function facilities” said to be part of the project identified as “redevelopment of the Brisbane Cricket Ground Stage 4/5”. Schedule 2 identified the works as “supply, fabricate and instal aluminium framed and glazed windows and doors”. Variation claim no. 15 referred to earlier is for the supply of hardware to “unframed glass doors” to the corporate suites. It is not disputed that the plaintiff did supply glass doors to the corporate suites, and generally the parties identified these as unframed, in that they were essentially slabs of glass which functioned as doors, although there were pieces of aluminium attached to the top and bottom, provided in connection with the pivot mechanism by which the doors functioned as doors. Essentially however, they were large slabs of glass which only had metal attached to them where this was necessary in order to enable them to function as required as doors. They may therefore be contrasted with doors which were structurally an aluminium frame within which there was a pane of glass inserted in much the same way as a pane of glass would be inserted in an aluminium window frame.
The former doors were identified in drawings A501 and A505 as “frameless glass door”. The door specifications contained reference to the windows section of the specification in respect of “glass door sets and aluminium framed door sets, as well as for aluminium door sets and aluminium door frames”. The window specifications stated that in that section the term “window” includes “glazed door where applicable” and the section “assembly-windows” on p.7, under the heading “Aluminium framed hinged glass doors” referred separately to such doors and “glass doors and side lights: frameless glass door, sidelight assemblies …”. The hardware section of the specification refers on p.6 to “unframed glass door hardware” as well as to aluminium framed door sets. The glass doors in the corporate suites were therefore commonly referred to within the specifications, and drawings, as unframed doors, although there is one reference which may be seen as inconsistent in the door schedule. This lists all the doors including wooden doors, roller doors and even gates, and for all of the doors except some of the gates and roller doors there is a column headed “frame type”. The glass doors within the corporate suites have the letters “AL” in that column, as do the aluminium framed doors supplied by the plaintiff where they appear in that schedule, suggesting that for the purpose of that schedule those glass doors were treated as having aluminium frames.
In the light of this two considerations occurred to me: did the description of the works in Schedule 2 to the subcontract extend to the unframed glass doors at all, and, if the expression did, did para. 6 of the Scope of Works document, in the reference to “aluminium framed doors”, extend to unframed glass doors as well? I have already quoted the statement in the second schedule of the contract. I would normally read that statement as referring to those windows and doors required by the project which were to have aluminium frames and were to be glazed, that is fitted with panels of glass. It was however submitted on behalf of the defendant that the words “aluminium framed and glazed” should be read distributably, so that the works included aluminium framed windows and doors, and glazed windows and doors. It is not clear whether there were any windows which did not have aluminium frames, and I would describe the items referred to as “unframed glass doors” as glass doors rather than glazed doors, but I think that in any case the preferred construction is that the scope of the works included the unframed glass doors. The plaintiff did not argue to the contrary, and the specifications, at least in some places, treated the unframed glass doors in conjunction with the aluminium framed glass doors. In addition, there is some similarity between the product so that it would be unsurprising to find both in the same subcontract. I also think it is of some significance that the parties evidently proceeded on the assumption that the contract covered the unframed glass doors as well as the aluminium framed glazed doors[6].
[6]Sinclair Scott & Co v. Naughton (1929) 43 CLR 310 at 327; and see Spunwill Pty Ltd v. BAB Pty Ltd (1994) 36 NSWLR 290 at 304-312 per Santow J.
The “scope of works” document to which I have referred is specific to this subcontract, and is headed “aluminium glazed walls, doors and windows”. The inclusion of the reference to “walls” removes any doubt that the glass walls on the corporate suites, in which the unframed glass doors were set, were included in this subcontract. It does appear that there is some sort of metal frame around these windows, presumably aluminium: p.43, and see detail 19 in drawing 511 in Exhibit 3. That I think reinforces the conclusion that the unframed glass doors were included in the contract.
The only clause in this scope of works document which was referred to in argument was clause 6 which states:
“Supply and install all architectural door hardware as specified to aluminium framed doors. The subcontractor will co-ordinate delivery and off-site manufacture times with the builder and the architectural hardware supplier for the balance of the project, to ensure that any special keying requirements are incorporated in the works.”
Initially the defendant did not dispute that the operation of this clause was confined to the aluminium framed doors, so that it did not directly apply to the unframed glass doors. However, in the course of argument I commented that it appeared odd that a distinction was drawn between the aluminium framed doors and the unframed doors, where both were being supplied by the plaintiff, and noted that the door schedule appeared to treat these glass doors as having aluminium frames. Perhaps encouraged by this, the defendant advanced the argument that clause 6 in fact applied to all doors, an argument not previously advanced.
Nevertheless, apart from the door schedule, the unframed glass doors are, in the specifications and in the drawings, identified separately from aluminium framed doors, and I do not think that the inclusion of an apparent reference to aluminium frame in the door schedule should be given that much significance. The notion that some architectural door hardware would be supplied but not others may seem a little odd, but the balance of clause 6 expressly contemplates that there will be an architectural hardware supplier for the balance of the project, thus providing some indication that it was intended that there would be someone else supplying architectural hardware, and therefore perhaps some additional door hardware.
It is apparent from the drawings that this was a fairly large project, and it is I suppose plausible that for a project of this size it may have made sense for the defendant to obtain this material itself; it is apparent from the reliance on the various invoices in relation to the material in dispute that in fact none of the door hardware was manufactured by the plaintiff, and the quantities may have been sufficiently large for it to be worthwhile for the defendant to obtain this material from a supplier direct. I am not suggesting that these considerations should be treated as favouring one or other interpretation; my point is simply that, particularly in the absence of any evidence on the subject, I cannot treat either interpretation as producing a construction which would appear to be capricious, unreasonable, inconvenient or unjust. In my opinion, clause 6 where it refers to “aluminium framed doors” does not apply to the unframed or frameless glass doors. This construction involves giving the words their natural meaning, in a way which is not obviously impractical, inconvenient or capricious, and in addition involves the application of a construction contra proferentem: these documents were prepared by the defendant.
In the course of the hearing there was some discussion about the scope of the expression “door hardware” and about the possible significance of the adjective “architectural” where it appears in the scope of works document. It seems to me that the concept “door hardware” for the purpose of this contract is defined in the first section of the hardware specification, a definition which it seems to me essentially corresponds with the understanding that Mr. Callaghan had about the term, except for the inclusion in this definition of “buffers”: p.26-7.
Once there is in effect a definition of the expression in the contract, in my opinion that becomes the operative definition and the evidence as to the general understanding of the expression in the trade becomes inadmissible and irrelevant. For that reason I uphold the objection taken by the defendant to the question directed to Mr. Callaghan about his understanding of the scope of the expression.
I have dealt with these two issues first, because, had either been decided the other way, they would have changed the way in which the balance of the issues are to be considered. The effect of clause 6 in the scope of works document applying only to aluminium framed doors and not unframed doors means that it is necessary to consider separately the issues arising in respect of variations 15 and 17, that is, to consider separately the answers to the two questions.
Question 1
In relation to the unframed doors, the plaintiff’s position is relatively straightforward: there is nothing in the contract which requires this hardware to be supplied and installed. There was evidence from Mr. Callaghan which I accept that the doors as they are now, and therefore as they were installed, are equipped with the following items of hardware: top pivot, full width top rail, full width bottom rail, floor spring (i.e., door closing mechanism), cover plate for the lock keeper attached to the fixed glazed panels, cover plates for the lock attached to the door, the outside plate being blank and the inside plate having a panic type handle, and floor mounted rubber door stops to limit outside and inside swing respecting: Exhibit 8. The door stops are not part of the plaintiff’s claim.
It is not disputed that these things were installed by the plaintiff with the doors, and indeed supplied to the defendant by the plaintiff; they are the items referred to in the invoice Exhibit 4. It also appears that the specifications included in the contract required that they be supplied and installed: the hardware specification stated relevantly (p.6):
“Unless otherwise specified, … provide ‘Dorma’ hardware as follows.
…
Corporate suites:
Top rail: Art No 359 full width with end stops complete with 355.4 insert
Bottom rail: Art No 359 width with end stops complete with 355.1 insert
Floor pivot: 8560G
Pulls: Art No 376 stainless steel door handles both sides complete with fixing assembly for glass thickness.
Provide furniture as scheduled in the door schedule.”
The door schedule specified for each of these glass doors a lock/latch identified as “590-105 K4”. A door closer identified as BTS80 HO, and the door stop (b). The specification on p.7 referred, under the heading door controller to concealed closers “Dorma” RTS 80 floor spring and transom point, or “Dorma” RTS 85 transom closer and floor point.
I was provided with copies of brochures for the Dorma RTS 85 transom concealed door closer, and the Dorma BTS 80 floor spring: Exhibit 10. Both are designed to close swinging glass doors, the former being fitted within the frame of a cross-member or transom on the top of the door, and the latter being fitted into the floor under the door, with a protruding pivot on which the door is mounted. That system involves applying pressure through that pivot to the door from a closer secured by being set into the floor; the former involves providing pressure through the upper pivot to the door frame from a closer set into the frame of the door. A door using RTS 85 would also require a corresponding pivot point at the bottom of the door and a door pivoting on a BTS 80 would also require a pivot point at the top of the door; in each case the door would turn on the axis through the top and bottom pivot points. It was submitted on behalf of the defendant that the BTS 80 was the same or essentially the same as the RTS 80 referred to on p.7 of the hardware specification. The expression BTS 80 appears in the door schedule, and it may be that the reference to RTS 80 on p.7 of the hardware schedule is simply a typing error.
It seems clear that it was intended that the door be fitted with such a closer, and a top pivot point, with the top and bottom rails necessary for the door to be attached to the pivot point and turn about it, a lock, and some sort of handle. I am not certain what the Dorma Art No 376 is, but it appears the specification contemplated there would be some sort of handle on each side of the door, and ultimately that was not what was provided. There was therefore at least some hardware specified to be fitted to the unframed glass doors.
The crucial issue here however, in my opinion, is not whether the specification required that some or indeed all of this equipment be provided, but whether the subcontract required it to be provided by the plaintiff. When construing the contract between the parties, it is necessary to bear in mind that it is a subcontract, that is, it is a contract which provides for the plaintiff to do some of the work required of the defendant by another under a head contract. Part of the contract between the parties is specific to that contract, but parts of the contract, particularly the drawings and specifications, are really statements of what is required of the defendant under the head contract. The subcontract requires the plaintiff, among other things, to “assume to the [defendant] in respect of the works the same obligations as the [defendant] has assumed to the proprietor under the head contract and agrees to perform and discharge the [defendant’s] obligations under or associated with the head contract in respect of the works”: clause 25(b) in Exhibit 2. This makes it clear that the obligations under the subcontract are defined by reference to the defendant’s obligations under the head contract, but it also makes it clear that that obligation is limited; it is not a subcontract requiring performance of all the work under the head contract.
In respect of the works covered by the subcontract, the plaintiff has to fulfil the defendant’s obligations under the head contract; that is, must do what is required by the specifications binding on the defendant. But the fact that something is required of the defendant under that specification does not necessarily mean that it is required of the plaintiff under the subcontract: that turns on whether or not that requirement falls within “the works” to be performed by the plaintiff under the subcontract. It is therefore reasonable for reference to be made to the obligations of the defendant under the head contract when identifying the content of the plaintiff’s obligations, but it is necessary to look elsewhere to identify the scope of the plaintiff’s obligations.
In the same way, the inclusion of the specifications in the contract between the parties does not mean that everything required by those specifications has to be performed by the plaintiff under the subcontract. Obviously what has been done is that those sections of the overall specification under the head contract which are relevant to the subcontract have been included in the subcontract, in order to give some content to the obligation in clause 25(b). But it is also clear, and so much was conceded by senior counsel for the defendant, that it is not everything set out in the various specification documents which are included in this contract which has to be done by the plaintiff under the subcontract. For example, the door specification refers to various types of wooden doors which were not being supplied by the plaintiff. The hardware schedule refers to items like draw runners, concealed hinges, sliding door tracks, soap dishes, toilet roll holders, coat hooks, soap dispensers and cutlery trays, which were not being provided by the plaintiff. Presumably the door hardware referred to in the hardware section of the specification which was applied to wooden doors was not to be supplied and installed by the plaintiff.
It follows that the fact that the specification required that something be provided does not necessarily mean that it was to be provided by the plaintiff under this subcontract. Nevertheless it was submitted on behalf of the defendant that the inclusion of the specifications in the contract was relevant to the scope of the subcontract obligation, and I can see that there is some relevance, in that presumably the plaintiff was not required to comply with any specification not included, and the inference is that any specification not included was not regarded as relevant to the work required of the plaintiff. But, once it is acknowledged that not everything required to be done in accordance with the specifications was required to be done by the plaintiff, it becomes necessary to look elsewhere for guidance as to what part of the work required by the specification was to be performed by the plaintiff. If, as I suspect, the specification was simply the specification from the head contract, then it records the obligation of the defendant to the proprietor, but it does not purport to identify any particular obligation with any particular trade package. It therefore does not itself show what was required to be done by the plaintiff under this subcontract. It is not possible to ascertain the scope of “the works” for the purposes of the subcontract just by reading the specifications incorporated in it.
Once that is understood, the fact that the hardware specification requires that certain Dorma hardware be provided for the unframed glass door does not necessarily mean that it is to be provided by the plaintiff. It was certainly contemplated that it would be provided by someone, but it is not possible just by reference to that specification to determine whether or not it was to be provided under this subcontract. That is to be decided by reference to those parts of the subcontract which identify what part of the head contract work was to be undertaken under this subcontract. So far as I can see, that is effectively limited to identification of “the works” in the subcontract agreement, and the “scope of works” document which was also specific to this subcontract and incorporated in it. The instruction to tender document did not say anything about the scope of the works under the subcontract. A project tender program was included in the contract, but neither side submitted that anything useful could be derived from it, and it does not appear even to mention the scope of this subcontract or identify the existence of any other subcontract from which inferences might be drawn as to the scope of this subcontract.
Nevertheless, it was submitted on behalf of the defendant that there was some wording in the specifications which went further than this. In the window schedule the part headed “Assembly – Windows” said, under the subheading “Glass doors and sidelights”:
“Frameless glass door, sidelight assemblies to incorporate Dorma, or equal approved, patch plate fixings, complete with floor recessed pivot hinge closers and push, pull, plate handles and locks as per door schedule. Frameless glass sidelights or windows to corporate suites and part function rooms to have channel sills with series 400 jams and heads or as detailed.”
The defendant emphasised the words “incorporate” and submitted that this meant that these things had to be provided with the frameless glass doors, that is the obligation to supply the frameless glass doors was an obligation to supply the doors with these things incorporated in them. In addition, the hardware schedule under the heading “Unframed glass door hardware – hardware” referred to the obligation to “provide Dorma hardware” that I have quoted earlier.
On the other hand, reference may be made to another part of the hardware schedule, the subsection headed “Installation – hardware” on p.2 which says inter alia:
“Supply: deliver door hardware items, ready for installation, in individual complete sets for each door, each set –
- in a separate dust and moisture proof package;
- clearly labelled to show its intended location; and
- including the necessary templates, fixings and fixing instructions.
Generally: install hardware to manufacturers recommendations. On completion leave the hardware clean, undamaged, properly adjusted and with working parts in working order, lubricated where appropriate. …”
The obligation to supply hardware in this way in respect of the doors suggests that what was contemplated is that the entity suppling the hardware would not be the same as the entity supplying the door, and indeed not the same as the entity installing the hardware. There seems to me to be no reason in principle why the entity supplying the hardware should be the same as the entity installing it. It is plausible that the entity supplying the glass doors, and installing them, would also supply the hardware, particularly that necessary to install them, but if so it would hardly be necessary or appropriate for this to be done in separate dust and moisture proof packages individually labelled containing complete sets for each door.
I think that this emphasises the point that these specifications are not intended as a guide to the location of the boundaries between the various trade packages; they are simply specifications of what was required by the proprietor of the defendant under the building contract. Accordingly, if the specification says to provide certain things, that means the defendant has to provide them to the proprietor, and no doubt someone has to provide them to the defendant, but it does not necessarily follow that that is the plaintiff. In my opinion, the same applies to the use of the expression “incorporate”; I do not think that that word means anything more than that the doors in their final state are to incorporate those things, and does not in itself say anything about who is to do the incorporating, and who is to supply the various pieces (whether or not in individual moisture proof packets) which are to be incorporated.
The point was also made that the obligation on the plaintiff was to install as well as to supply the doors, and installing the glass doors necessarily involved installing those elements of the door hardware that were necessary in order to enable the door to function as a door, that is the top and bottom rails which secure the pivots, the door closer which operated as the lower pivot and the upper pivot. One cannot install the door without installing this hardware as well. I think there is some force in that proposition, but again it does not necessarily follow that whoever installs these things also has to supply them. I am also concerned about what follows in relation to the installation of the lock and associated features, since the door can function as a door without them, although it would not function as a secure door without them. If someone is going to install some of the door hardware, it would make sense to go on and install the rest of it as well.
I do not think it necessarily follows however that whoever supplies and installs the doors also has to supply and install the door hardware, since there is a general obligation under the contract to coordinate with other subcontractors. It appears in the scope of works document, para. 11:
“Coordination of complete glazing installation with all preceding and following trades.”
The inference I would draw from the use of that expression is that there was a distinction between the “complete glazing installation” and what the plaintiff was required to do under this subcontract, and that the plaintiff had the obligation to coordinate the interrelationship between its work and the work of other subcontractors. It may be however that the expression “complete glazing operation” is simply another expression for whatever it was that the plaintiff had to do under its subcontract, but it still means that the plaintiff has to coordinate that with other subcontractors. The contract therefore assumes that there would be some coordination with other subcontractors involved in the performance of the subcontract. Indeed, the nature of the work being done necessarily implies this.
It was submitted on behalf of the defendant that there had to be pivot points installed when the door was installed otherwise the door would fall over. That is correct, but if it comes to that, there has to be a concrete floor to set the lower pivot point into, and something above the door to attach the other pivot point to, otherwise the door will fall over, and it was not suggested that the plaintiff was required to provide either of those things. It may be that quite a lot of this structure is necessary, directly or, in order to prevent these doors from “falling over” when installed, but that does not mean that the plaintiff has to construct all of it.
In my opinion, therefore, the focus must be on those features of the contract which define which part of the whole of the works required under the head contract the plaintiff was required to do under this subcontract. That in my opinion is the definition in the second schedule of “the works” and the “scope of works” document. Indeed, the latter is the place where one would logically expect to find information about the scope of this subcontract. It is therefore to these aspects of the contract that I must turn when determining just what the plaintiff was required to do.
Both parties relied on the classic statement of contractual interpretation in the context of commercial agreement enunciated by Sir Harry Gibbs in Australian Broadcasting Commission v. Australasian Performing Rights Association Ltd (1973) 129 CLR 99 at 109-110:
“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words that every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend the contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, even though the construction adopted is not the most obvious or the most grammatically accurate, … Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co Ltd v. Arcos Ltd, that the court should construe commercial contracts fairly and broadly, without being too astute or subtle in finding defects, should not, in my opinion, be understood as limited to documents drawn by business men for themselves and without legal assistance …”
It was submitted on behalf of the defendant that what was required in accordance with the specifications was doors having certain hardware incorporated, or fitted to them, so that the obligation to supply and install the doors must be taken as extending to an obligation to supply and fit the items of hardware required. I can see that there is some force in that argument, but the difficulty in my opinion lies in the “scope of works” document, particularly in the circumstance that it expressly requires the supply and installation of all architectural door hardware as specified to aluminium framed doors. Once it is determined that that obligation applies only to aluminium framed doors, and does not apply to unframed glass doors, I am construing a contract which provides expressly for the supply and installation of door hardware to some (but not all) the doors required to be supplied and installed under the contract. That creates a situation to which the maximum expressum facit cessare tacitum could apply.
If the contract is read as a whole, it contemplates that there could be someone supplying door hardware who is different from the party supplying the doors. Clause 6 itself contemplates the existence of another architectural hardware supplier for the balance of the project. The circumstance that the contract expressly extends to supply of door hardware only for some of the doors supplied by the plaintiff suggests that there is not an obligation to supply door hardware for the balance of the doors provided, and that interpretation would also be consistent with an interpretation contra proferentem. I accept that there is some force in the argument to the contrary, but on the whole, and attempting to apply the approach in the ABC case to which I have referred, in my opinion on its true construction the contract did not extend to the supply of door hardware as specified to the unframed glass doors.
It was submitted on behalf of the defendant that an expressio unius argument was excluded in circumstances where the scope of works document is introduced for the words “the extent of the subcontract work shall include, but not be limited to the following”. I accept that those words were inserted in order to make it clear that the obligation was not necessarily confined to something expressly included, but there remains the difficulty that there must be some logical basis for the conclusion that the thing not expressly included was intended to be included anyway. Accepting that in principle things not within this document may be included in the contract, the question remains, where does one derive the information that door hardware, other than the door hardware expressly included, is to be included in the supply and installation of certain doors? The defendant’s answer is that the specification required door hardware to be provided or incorporated, but for reasons I have given in my opinion the fact that the specification requires something to be done by someone does not mean that it is required to be done by the plaintiff under this subcontract. Accordingly, in my opinion, the contract between the parties did not require the plaintiff to supply the door hardware for the unframed glass doors.
With regard to the question of the installation of the hardware, door hardware includes hinges, pivots and other means of hanging the doors[7]. In these circumstances it is really not practicable to install a door without installing at least that part of the door hardware, and a door cannot function fully as it is intended to function in accordance with the specification unless all or at least most of the relevant hardware is installed on it. It may well be possible to have one subcontractor installing the hardware and another actually hanging the door, but that does strike me as somewhat cumbersome and this I think is a factor tending against the proposition that installing the door did not include installing the door hardware.
[7]See Hardware specification in Exhibit 1, p.1, “Section Content ‘ Hardware”.
If the obligation on the plaintiff were simply to supply the glass doors then that would in my opinion be limited to an obligation to supply the slab of glass of the appropriate size, prepared so as to accommodate the specified hardware, but would not extend to the installation of that hardware; but in circumstances where the obligation extends to the installation of the doors, the installation of door hardware necessary to enable the installation to be carried out, and necessary to enable the door to function properly as a door in accordance with the specifications, is something required to be done. It could, I think, fairly be seen as incidental to the work of installing the door, and I think it would involve the drawing of an artificial distinction to exclude such work. In my opinion, approaching the matter in the way indicated in the ABC case, on the true construction of the contract the obligation to install doors meant that there was an obligation to install the door hardware as well.
I would therefore answer question 1 “no” in respect to the supply but “yes” in respect to the installation.
Question 2.
Variation 17 referred to architectural hardware to aluminium framed doors not included in the schedule scope of work. As mentioned earlier, the scope of works document stated expressly that the works included “supply and install all architectural door hardware as specified to aluminium framed doors”. In my opinion it follows that the only issue is what architectural door hardware was specified in relation to the aluminium framed doors. The plaintiff submitted that there was none specified, the submission being made in reliance on what was said on p.4 of the window specification, in the section headed “aluminium door frames – windows”. This section included the following:
“Description: Frames assembled from aluminium sections, including necessary accessories such as buffers, pile strips, strike plates, fixing ties or brackets and cavity flashing with suitable provision for fixing specified hardware; pre-finished with protective coatings, built in or fixed to prepared openings.
…
Hardware: Make suitable provision for fixing the hardware specified for the relevant door set including hinges and locksets. Mount strike plates, locksets, flush bolts and the light flush with the face of the frame. Provide suitable cutouts and fixing cleats.”
It was submitted that this drew a distinction between “necessary accessories” referred to under “description”, which indicated that those things were to be included in the frames which were assembled, and hardware where the only obligation was to “make suitable provision for fixing the hardware specified”.
I am prepared to accept that that is the appropriate way to read that part of the specification, but that does not mean that there was no door hardware specified anywhere else. The hardware schedule required the provision of Dorma offset pivots for aluminium framed door sets, push plates and kick plates as scheduled in the door schedule, bolts “appropriate to the location” and door stops if listed in the door schedule. There was also a reference on p.7 to the provision of “Efco/bolts as scheduled to top and bottom of aluminium door or “Dalco” 600 mm long”. Under the heading “hardware schedules – hardware” it referred to the door schedule, and the door schedule identified particular hardware for particular doors.
For example, door no. 2.14.1 appears in the door schedule as an entry door, and under the heading “lock/latch” there is a reference “423-100 K4”, indicating that a lock or latch matching that description was required. Page 7 of the hardware schedule indicates that this means a Lane 423 100 lock. In addition the furniture required was “RN11/RN14/L29”. It is not quite clear to me just what that identifies but it identifies some furniture which presumably is meaningful when one has details of the Efco 90 series door furniture referred to on p.7 of the hardware schedule. In fact, two lever handles were provided. There is a requirement for a door stop, and under the heading “door closer” there is an entry “B502 X 2”, which is consistent with the provision of two surface mounted overhead door closers with arm brackets, as were installed as identified by Mr. Callaghan: Exhibit 9. There was also in the last column a reference to “Refer window schedule”. It is not clear that this imposed any additional requirements in terms of the supply of door hardware. The hardware schedule also refers to hinges, identifying the hinge size on p.3 and the type to be used on p.7.
I do not accept that the effect of the contract is that there was an obligation to supply and install any door hardware which was required in any way; the obligation was to install such architectural door hardware as was specified. It is therefore necessary to find in the specification something which says that particular door hardware is required for particular doors. But that can be found, as I have indicated in relation to door 2.14.1. A similar exercise can be done for each of the other doors the subject of the dispute.
There were a number of invoices included in Exhibit 6. The first refers to the supply of a number of flush bolts; it is not clear whether these are the particular brand specified on p.7 of the hardware schedule, but for present purposes the issue is whether the hardware schedule required flush bolts to be provided to the aluminium doors, and in my opinion it did. Invoice no. 2 refers to the supply of 20 transom closer kits, with a code which matches the Dorma RTS 85 description on p.7 of the hardware schedule. Invoice no. 5 refers to supply of 18 737 SBC arrow closers which would be consistent with the reference on p.7 to “Lockwood arrow 700 series” for surface closers, and 18 727S-V5 NAT drop plates, which are apparently associated with them. It also records the supply of 19 3582 XT locks and cylinders to suit, and 19 5801/70 furniture and 5904/70 furniture. Either this corresponds to the “RN11/RN14 L29” reference, or it represents alternative furniture supplied by the plaintiff and presumably accepted by the defendant. I do not think that a distinction should be drawn in terms of scheduling between the lock and the cylinder, since it is also clear from the door schedule that some keying was required in respect of each of the locks, so that some cylinder would have to be provided. It follows that the only item in this invoice which does directly fall within the schedule requirements is the last item, the drop plate. This item seems to be associated with the door closer, and would be required by implication.
Invoice no. 8 refers to a number of Arrow parallel arm brackets. This may be the same item as the “arm bracket” referred to by Mr. Callaghan at pp. 15-16 and noted in Exhibit 9. As he explained this item, it was necessary for such an item to be fitted in order to enable the door closer to be properly installed. A surface door closer is usually fitted on the side to which the door opens, but in some circumstances it is appropriate for it to be fitted on the opposite side of the door, and this requires an additional bracket so that the closer arm will not get in the way of the door frame as the door opens. The supply and installation of such an item is necessary in order to enable the door closer to be properly installed in such a situation. Accordingly, in my opinion, the obligation to supply and install the scheduled door hardware would extend to such a bracket.
Invoice no. 14 refers to the supply of two Lockwood 3582 XT locks and sets of furniture. These were apparently for doors 4.18.1 and 2.06.1, both of which have locks specified in the door schedule, although not apparently the locks referred to in the invoice, and both of which had furniture specified in the schedule, although again not apparently the furniture in the invoice. Nevertheless, this seems to have been supplied and accepted in lieu of the locks and furniture specified in the schedule.
Invoice no. 18 refers to 5 RTS 85 transom closers, and as I have already indicated, having such closers were required for the aluminium doors included in the contract. The same applies to a further 7 such closers referred to in invoice no. 19. Invoice no. 23 refers to a quantity of flush bolts, and as I have indicated, provisions of flush bolts was required by the specification. Invoice no. 24 was for the provision of 2 locks and corresponding furniture, and three closers and corresponding drop plates, and as I indicated in my opinion these were covered by the requirements of the specifications. Invoice no. 25 is for a further 7 closers and 10 locks and associated furniture. Invoice no. 26 is for a further 1 closer. Again, for reasons I have indicated, these were in respect of items included in the specifications or in substitution for items specified.
There was an argument from the plaintiff that some or all of the particular items included in the invoices in Exhibit 6 had to be provided in addition to what was required by the specification because the specification had omitted appropriate requirements in relation to, for example, particular doors, or specific items of furniture, or that there was any special request for extra or different hardware. Rather, the plaintiff’s argument was broader, that the specification did not require any door hardware to be provided by the plaintiff. Ultimately, this argument came down to the proposition that, although there were references in the specification to items of door hardware, this did not matter because there was nothing in the specification requiring these items to be provided by the plaintiff, or under this contract: p.65, 67. That is in a sense the converse of the argument advanced by the defendant, that because items were required to be provided under the specification, they had to be provided by the plaintiff without some further specific requirement. As I have indicated earlier, I do not accept that argument.
The specification says what has to be provided by someone, but it is necessary to look elsewhere to determine whether or not that someone is the plaintiff under this contract. In the case of aluminium framed doors there was a requirement that the plaintiff supply and install door hardware as specified. In my opinion, that means that where the specification required door hardware to be provided by someone (that is to say, to be provided by the defendant to the proprietor) then under this contract it became the plaintiff’s obligation to supply and install the door hardware required. In my opinion, it is not an answer to the plaintiff’s claim therefore that there was no express requirement in the specification that door hardware be supplied and installed under this contract. That was unnecessary. As long as the specification required it to be provided, the scope of works document imposed the obligation for the plaintiff to supply and install it under this contract. In my opinion, therefore, question 2 should be answered “Yes”.
The settlement agreement does not provide for me to deal at this stage with the costs of the determination of the separate questions. Those costs are therefore reserved. I will circulate these reasons, and the parties can proceed in accordance with the settlement agreement. Hopefully the remaining matters in this dispute will now be resolved.
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