Highway Construction Pty Ltd v Commissioner of Main Roads - [2010] WASC 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HIGHWAY CONSTRUCTION PTY LTD -v- COMMISSIONER OF MAIN ROADS [2010] WASC 9

CORAM: HALL J

HEARD: 2 DECEMBER 2009

DELIVERED : 21 JANUARY 2010

FILE NO/S: CIV 2221 of 2009

BETWEEN: HIGHWAY CONSTRUCTION PTY LTD (ACN 009 160 007)
Plaintiff
AND
COMMISSIONER OF MAIN ROADS
First Defendant
STEVEN GOLDSTEIN
Second Defendant

Catchwords:

Contract - Construction and interpretation - Expert determination - Whether expert can determine legal costs incurred prior to appointment - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's action dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J McCusker Q C & Mr A Metaxas
First Defendant             :     Mr P J Ward
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Metaxas & Hager
First Defendant             :     Blake Dawson
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Australian Broadcasting Commission v Australian Performing Rights Association (1973) 129 CLR 99
Chemeq Ltd v Shepherd Investments International Ltd [2007] WASCA 117
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Deacon v Morris (1819) 2 B&ALD 393
Hewett v Casella [2006] WASC 254
Home Building Society Ltd v Pourzand [2005] WASCA 242
Lion Nathan Australia v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
O'Grady v North Qld Co Ltd (1990) 169 CLR 356
Phillips v Bacon (1808) 103 ER 587
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25
Zhu v The Treasurer of New South Wales (2004) 218 CLR 530

HALL J: The plaintiff is in the business of building roads. In 2000 it was contracted by the first defendant to construct two portions of the Ripon Hills Road. In 2002 it was further contracted by the first defendant to undertake work on the Eyre Highway. In respect of both of these matters there were disputes as to the work done. The disputes led to proceedings in this court being CIV 1266 of 2005 (Ripon Hills) and CIV 2657 of 2004 (Eyre Highway).
The parties eventually agreed to submit the matters in dispute to an expert for a binding determination. That agreement was formalised in a document entitled 'Expert Determination Appointment Agreement' (the agreement), signed by both parties and by the appointed expert on 1 November 2006. The expert, Mr Steven Goldstein, is the second defendant in these proceedings. I will hereinafter refer to him as the expert as the present dispute is essentially between the plaintiff and the first defendant.
On 20 June 2007 the expert made a determination as to the liability of the parties in respect of the construction work. The determination was in favour of the first defendant on the Ripon Hills dispute and in favour of the plaintiff on the Eyre Highway dispute. The determination did not include any findings in respect of costs, but the parties were invited to make submissions to the expert in that regard.
On 5 March 2009 the first defendant submitted to the expert a claim for legal costs in respect of the Ripon Hills dispute. That claim included costs incurred both before and after the agreement was made. That is to say, it included legal costs that related to the court proceedings in CIV 1266 of 2005.
Both parties accept that the expert was permitted to make a determination as to costs, but there is a dispute as to whether that power was limited to costs for work done in relation to the determination process. The plaintiff contends that on a proper construction the agreement only permits the expert to determine costs in relation to the expert determination process and that does not include costs incurred before the agreement was made. The first defendant contends that the agreement empowers the expert to determine all of the matters in dispute and that includes pre‑agreement costs because the claim in CIV 1266 of 2005 included a claim for the costs of those proceedings. The resolution of these contesting positions depends entirely on the construction of the agreement. Accordingly, the parties agreed that all of the relevant documentary evidence could be tendered by consent and that no witnesses were required.
In submissions to the expert the plaintiff raised its objection to him making a decision in respect of pre‑agreement costs. The expert decided that he did have such a power and has determined that the plaintiff is liable to pay the first defendant's costs of and incidental to proceedings in CIV 1266 of 2005 and has directed the first defendant to file submissions on the quantum of costs. The expert has informed the parties that he would not proceed to determine quantum until the present proceedings are resolved.
The plaintiff has brought the present proceedings seeking declarations that:
1.Upon its proper construction the agreement does not empower the second defendant to make a determination of costs payable by the plaintiff to the first defendant for work done by the first defendant's solicitors and CIV 1266 of 2005 prior to the agreement; and
2.Upon its proper construction the agreement empowers the second defendant to make a determination of costs payable by the plaintiff to the first defendant for work done by the first defendant's solicitors of and in relation to the expert determination of the dispute relating to the Ripon Hills contract after the date of the agreement.
The plaintiff also seeks an injunction to restrain the expert from making any determination in respect of the first defendant's claim for costs relating to CIV 1266 of 2005.

The law

The meaning of a written agreement is to be determined objectively. This requires a determination of the meaning that a document would convey to a reasonable person having all the background knowledge of the parties as to the situation they were in at the date the agreement was made: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181, 188.
In Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 the High Court said at [40]:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That normally requires consideration not only of the text but also of the surrounding circumstances known to the parties and the purpose and object of the transaction.
The court must consider the terms of a contract in their context. This includes considering particular terms in light of the whole text of the contract: Australian Broadcasting Commission v Australian Performing Rights Association (1973) 129 CLR 99 at 109.
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 of 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 a 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', to use the words from earlier authority cited in Locke v Dunlop, which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case. 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 (3), 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 businessmen for themselves and without legal assistance (cf Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd). (Footnotes omitted)
It is also necessary to construe a contract so as to avoid it making it commercial nonsense or working commercial inconvenience. That requires attention to 'the genesis of the transaction, the background, the context, the market' in which the parties were operating, as known to both parties: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 (Mason J) 350 and see also Zhu v The Treasurer of New South Wales (2004) 218 CLR 530, 559.
Where the words of a contract are ambiguous the court will prefer a meaning which will avoid consequences which appear capricious, unreasonable, inconvenient or unjust: Australian Broadcasting Commission v Australian Performing Rights Association (Gibbs J) 109. However, it is not only in cases of ambiguity that a court can have regard to the consequences. A court may decline to apply a literal meaning where this leads to an irrational result: Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25 and Hewett v Casella [2006] WASC 254, [25]. But the plain meaning must be manifestly absurd; mere unreasonableness is not enough.
There is an issue as to whether it is only in cases of ambiguity that the surrounding circumstances are relevant to interpreting a contract. The Full Federal Court has held that there is no requirement that there be ambiguity: Lion Nathan Australia v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 [122]. The position in Western Australia has not been authoritatively determined: Home Building Society Ltd v Pourzand [2005] WASCA 242 [25] ‑ [33]; Chemeq Ltd v Shepherd Investments International Ltd [2007] WASCA 117 [154].

The background circumstances

Prior to entering into the agreement the parties had been in dispute for several years. The contract in relation to the Ripon Hills Road had been signed on 13 October 2000. The work was divided into two portions, the first of which was to be completed by 26 January 2001 and the second by 17 August 2001.
During the defects liability period a number of directions were issued to the plaintiff to rectify defects in the work but the plaintiff declined to do so. As a consequence the first defendant undertook the work to rectify the defects and commenced proceedings against the plaintiff for the cost of that work. Those proceedings commenced on 9 March 2005.
The plaintiff denied it was liable for any of the defective work and claimed that all of the defects were due to design issues for which the first defendant was responsible. Both before and after the proceedings commenced attempts were made to resolve the dispute through settlement offers and a non‑binding expert appraisal process. The proceedings involved multiple heads of claim and counterclaim.
The agreement of the parties to refer the proceedings to binding expert determination was made following a formal mediation in the Supreme Court. That mediation occurred on 29 June2006. The agreement was then drawn and executed on 1 November 2006.
In my view the evident purpose and object of the agreement was to put an end to the disputes between the parties and thereby avoid further litigation. The background circumstances and the purpose which is to be discerned from them are relevant in construing the terms of the agreement. I should note, however, that the object and purpose is clear from the terms of the agreement and even if the background circumstances were discounted I would come to the same conclusion as to the purpose based on those terms.

The agreement

The agreement provides that the expert's determination shall be final and binding upon the parties: cl 11.4. The parties are required within 28 days of receiving the final determination of the expert to take whatever steps and execute whatever documents are necessary to 'finally resolve' proceedings CIV 2657 of 2004 and CIV 1266 of 2005 in the Supreme Court. Clause 11.5 provides that such documents may include a consent judgment, a notice of discontinuance and/or a deed of settlement and release but will include, if required by the other party, orders which will constitute a judgment in the Supreme Court and be enforceable on that basis. Clause 11.6 provides that if there is any dispute as to the form or content of the documents the expert can direct the parties to execute such documents as are necessary and appropriate to give effect to the expert's determination and 'to resolve the said proceedings'.
The use of the word resolve in this context strongly suggests that the determination of the expert will bring finality to the matters in dispute between the parties. That word is being used here as meaning to 'decide, determine (a doubtful point); settle (something)': Shorter Oxford English Dictionary.
The crucial clause for the purposes of these proceedings is cl 9. That clause provides as follows:
9.Expert Determination
9.1The Expert shall act consistently with this Agreement.
9.2The Expert shall:
(a)take into consideration all documents, witness statements, information and other written and oral material that the parties place before the Expert including documents, witness statements, information and material relating to the facts in dispute and to arguments and submissions upon the matters in dispute provided that submissions by each party shall not exceed 40 pages in length (and the Rules of the Supreme Court of Western Australia as to documents shall apply thereto as to font size and spacing);
(b)not be expected or required to obtain or refer to any other documents, information or material but may do so if the Expert so desires.
9.3The Expert shall make the Expert's determination on the matters in dispute:
(a)On the basis of information received from the parties and, subject to the requirements of procedural fairness, the Expert's own expertise;
(b)In accordance with the law;
(c)Within 30 days after receipt of the parties' submissions or as agreed in any subsequent conference with the parties provided that documents, witness statements, information and other written and oral material from the parties will not be required before 15 December 2006;
(d)In writing with sufficient reasons for the parties to understand the basis of the determination.
9.4Where a party has been afforded a reasonable opportunity to make submissions or provide any other material to the Expert but has not done so, the Expert may proceed to determine the matters in dispute without the submissions or material and the affected party hereby waives any objection it may have to the Expert's determination which is based on the Expert proceeding in the absence of the submissions or material.
9.5Except to the extent that the parties' contract or the law requires a particular determination of entitlement to interest and/or costs, the Expert may include in the determination:
(a)whatever interest the Expert considers reasonable on any monetary sum determined as payable; and
(b)(following submissions) whatever costs the Expert considers it appropriate and reasonable for one party to pay to the other in relation to the legal and other costs and disbursements of and in relation to the Expert Determination.
9.6The matters in dispute are the matters referred to in the Schedule.
The schedule to the agreement provided as follows:
Matters in dispute: All the matters presently before the Supreme Court of Western Australia in:
(a)CIV 1266 of 2005 between the Commissioner of Main Roads and Highway Construction Pty Ltd; and
(b)CIV 2657 of 2004 between Highway Construction Pty Ltd and the Commissioner of Main Roads.
It is relevant to note at this point that the statement of claim in CIV 1266 of 2005 included a claim for costs.
As is apparent, cl 9 uses the phrase 'Expert determination' and also the phrase 'Expert Determination'. There is a reason for this. When determination is referred to this is clearly a reference to the final decision of the expert regarding the matters in dispute. However Expert Determination is defined in cl 1.1 to mean 'the expert determination process and matters thereunder'. Thus, in cl 9.3 the reference is to the decision made by the expert whereas in cl 9.5(b) the reference is to the process. Thus, the power of the expert under cl 9.5(b) is to make a binding decision regarding costs, including legal costs, that the expert considers should be paid by one party to the other in relation to the determination process.

The plaintiff's contentions

The plaintiff contends that cl 9.5(b) only refers to costs 'in relation to' the expert determination. As this refers to the process by which a binding decision is made it is argued that this clause cannot empower the expert to make any decision that relates to legal costs incurred in relation to CIV 1266 of 2005 before the agreement was executed. It is submitted that the words 'in relation to' would be strained if they extended to costs incurred before the expert determination process was commenced or even contemplated. In that regard the plaintiff submits that those words must be read in context and that what is required is a relevant relationship, being something more than a coincidental or mere connection: O'Grady v North Qld Co Ltd (1990) 169 CLR 356, 367.
I accept that cl 9.5(b) cannot be construed so as to empower the expert to make a decision regarding pre‑agreement costs. Its clear and literal meaning is to provide the expert with power to make a decision regarding costs relating to the process for which he has been engaged. However, the first defendant does not assert to the contrary. Rather, the first defendant submits that the expert was empowered to make a determination as to the pre‑agreement costs because they were one of the matters in dispute referred to in cl 9.3. As to this the plaintiff says that this is inconsistent with the course of action that the expert took.
In 2007 the expert made a final determination and published it to the parties. He then purported to exercise his power under cl 9.5(b) and directed the parties to make submissions regarding the issue of costs. The expert decided to deal with the issue in two stages; first, the question as to who should pay the costs in relation to each matter and second, the quantum of any such costs. On 10 September 2007 the expert made a determination on the liability to pay costs. In his reasons he noted that the plaintiff had raised a preliminary point in regard to limitations of his power under cl 9.5(b) of the agreement. The expert then stated:
Under cl 9.3 of the agreement I was required to make a determination on the matters in dispute. The schedule to the agreement provided that the matters in dispute included all the matters presently before the Supreme Court of Western Australian in CIV 1266 of 2005. In my opinion, resolution of all matters in dispute requires me to make a determination on the question of the costs of those proceedings. These costs obviously precede my appointment as the expert.

The expert concluded that the agreement empowered him to include in the determination the costs of and incidental to the Expert Determination and the costs of and incidental to proceedings CIV 1266 of 2005 that are presently before the Supreme Court.
The plaintiff submitted that the expert determination of 2007 decided the substantive issues between the parties. As I understand it, the plaintiff was thereby suggesting that the only power of the expert that remained was that which was contained in cl 9.5(b) and having applied and exhausted the power under cl 9.3 to determine the matters in issue it was not open to the expert to make any decision regarding pre‑agreement costs.
I do not accept the correctness of this submission. Clearly any question as to costs in relation to the proceedings could not be meaningfully addressed until liability for the substantive issues had been determined. In these circumstances it was necessary for the expert to determine the substantive liability issues before turning to the question of costs. That the expert dealt with the issue of costs as they related both to pre‑agreement and post‑agreement matters at the same time does not mean that he was confined to relying upon either cl 9.3 or cl 9.5(b). In my view the expert had not exhausted the power available to him to determine the matters in dispute by making the determination in 2007. He was able to make a binding decision as to costs and in doing so rely upon cl 9.3 in relation to pre‑agreement costs and cl 9.5(b) in relation to post‑agreement costs. That is what he did and it is not inconsistent with the interpretation contended for by the first defendant. In any event, this seems to me to be only marginally relevant, if at all, to the question of interpretation.
The plaintiff further contends that the expert was not retained for any legal qualifications but for his engineering expertise and, accordingly, it would not be consistent with the role that he was retained to take that he would make determinations in regards to legal costs. In response the first defendant points out that the expert, in addition to having engineering qualifications, is also a barrister at the New South Wales Bar. Furthermore, the first defendant says, the expert has power under cl 17.1 to seek technical assistance if necessary.
In my view the plaintiff's contention does not have merit because on any view the expert was empowered under cl 9.5(b) to make a decision regarding costs relating to the expert determination process and those costs were expressly contemplated as including legal costs. Accordingly, it was always intended that the expert would make a determination in regard to legal costs at least in regards to such post‑agreement costs. Thus, any argument that the nature of his expertise is inconsistent with an interpretation of cl 9.3 that he was empowered to determine pre‑agreement costs can have no merit. The plaintiff sought to rationalise this difference by arguing that it was sensible for the expert to determine post‑agreement legal costs because he would have been intimately involved in the process at that stage. However, this appears to avoid the very point that the plaintiff sought to make, namely that the expert was not retained for any legal expertise; whether he was involved in the process or not would not change that position. Furthermore, no person who could be asked to determine pre‑agreement costs could be in any better position in regards to familiarity with the issues than the expert.
The plaintiff also contends that if cl 9.3 extends to pre‑agreement costs the expert would be able to make a final and binding determination in respect of such costs. The problem with this, the plaintiff suggests, is that on the plaintiff's view some of the costs claimed by the first defendant are excessive. The plaintiff submits that it is consistent with the terms of the agreement and the purpose of it that the expert is limited to making a determination as to the substantive liability and any costs in relation to the determination process but that any question in relation to the pre‑agreement costs of the Supreme Court proceedings would then be referred back to this court. The plaintiff says that on this basis questions as to the costs of the Supreme Court proceedings would be determined by a taxing master who would be better qualified to make such decisions and whose decisions would also be susceptible to appeal.
In my view there are several flaws in this argument. Firstly, any suggestion that the costs as presently claimed are excessive is not relevant to the question of interpretation, is not accepted by the first defendant and, in any event, could not be determined by me on the available evidence. Furthermore if the plaintiff's interpretation of the agreement is correct it would have the result that some legal costs of the first defendant would be determined by the expert and some by the Supreme Court. This in circumstances where this court has had no role in the dispute for several years and, conversely, the expert has had an active and continuing role. More importantly perhaps if the costs of the proceedings had to be determined by this court there would be a prospect of a continuing dispute between the parties. This would be inconsistent with the object and purpose of the agreement, as referred to earlier, being to bring finality to the dispute by way of the expert's determination. The first defendant also sought to persuade me that in a number of venerable cases (Deacon v Morris (1819) 2 B&ALD 393 and Phillips v Bacon (1808) 103 ER 587) costs have been considered part of the damages claimed, but on the view that I take of the interpretation of the agreement it is not necessary for me to make a determination in that regard.
In regard to the question of whether costs were one of the matters in dispute referred to in the schedule of the agreement, the plaintiff submits that any claim for costs made in the writ was contingent on success in regards to liability and would normally be determined separately once liability has been determined. It was argued that in that sense any question of costs was not before the Supreme Court until liability had been determined and could not therefore be considered to be a matter that was presently in dispute at the time the agreement was drawn. The plaintiff says that questions as to liability to pay costs were not part of the pleaded facts and this supports a conclusion that costs were not one of the matters in dispute.
Whilst I accept that the question of costs would not be determined until issues of liability were settled, I do not accept that this means that costs were not in dispute. It may well be that had the matter gone to trial and the substantive issues of liability been determined, costs would have followed the event but the nature of the costs order and the quantum payable may well have been disputed. Furthermore, the plain fact is that costs were one of the matters claimed in the writ and the writ was defended. The phrase 'matters in dispute' was not confined in the agreement to mean only those matters that were presently being contested. It was defined in the widest terms to be all the matters presently before the Supreme Court. Costs was one of the matters that was before the court in respect of CIV 1266 0f 2005 and was therefore a matter in dispute. This interpretation again is consistent with the evident object and purpose of the agreement.
I should also note that the first defendant has contended that a special order for costs would have been sought in CIV 1266 of 2005 had the proceeding been determined in the Supreme Court but that the plaintiff asserts that scale limits should apply. Accordingly, it would not be a simple matter, as the plaintiff contends, of entering judgment with costs to be taxed if not agreed. Rather the parties would have been obliged to return to the court for a contested hearing of an application for a special costs order at which the parties may have to put on evidence as to the complexity of the dispute and the volume of materials put to the expert.
The plaintiff contends that there is no real significance in the fact that the writ in CIV 1266 of 2005 includes a claim for costs since O 20 r 2 of the Rules of the Supreme Court 1971 provides that it is not necessary to specifically claim costs in a statement of claim. Accordingly, it is submitted, the reference to costs did not in itself mean that costs were a matter in issue between the parties.
This argument is self‑defeating. The fact that a specific claim for costs was made establishes that they were sought by the first defendant. Order 20 r 2 only serves to confirm that costs could have been claimed in any event. Even if a specific claim for costs was strictly unnecessary the fact it was made puts beyond doubt that this was one of the matters 'presently before' the court.
The plaintiff submits that a broad reading of cl 9.3 is inconsistent with cl 9.5(a) which allows the expert to include in the determination any interest that the expert considers reasonable on any sum that he determines is payable. The plaintiff suggests that this clause would have been unnecessary if cl 9.3 was intended to cover by its reference to 'matters in dispute' all those claims for relief referred to in the writ since a claim for interest was made therein.
There is some merit in this argument, but it should be acknowledged that the power of the expert under cl 9.5(a) is on its face broader than the claim for interest contained in the writ. Furthermore, it does not follow that because a specific power in relation to interest was included in cl 9.5(a) that cl 9.3 must be read down. It is possible that cl 9.5(a) was included out of an abundance of caution. In any event, whatever the reason cl 9.5(a) was included in the agreement, the existence of that provision does not outweigh the background, context and the clear words of cl 9.3 and the schedule.

Conclusion

In my view the phrase 'matters in issue' includes the costs of the proceedings in the Supreme Court in CIV 1266 of 2005. The phrase 'all matters presently before the Supreme Court' is clear and unambiguous. Accordingly, the expert had the power to determine those costs pursuant to cl 9.3 of the agreement. I come to that conclusion having regard to the following:
1.That the object and purpose of the agreement was to bring to a final conclusion the disputes between the parties;
2.That this interpretation is consistent with cl 11 of the agreement and in particular the references to the determination giving effect to a final resolution of the disputes;
3.That on a literal reading of cl 9.3 read with the schedule the expert has a power to determine the costs of the proceedings;
4.That such a reading does not result in absurdity or commercial inconvenience, rather it promotes it by ensuring that all elements of the matters in dispute are conclusively determined by the expert appointed by the parties.
5.There is no ambiguity in cl 9.3 or the schedule and no inconsistency between those provisions and other terms of the agreement;
6.Even if there were ambiguity, the surrounding circumstances support a reading which gives the expert power to determine all matters in dispute, including pre‑agreement costs.
Accordingly, the plaintiff's claim for declarations and an injunction to restrain the second defendant must be dismissed. In coming to that conclusion I note that the second declaration sought related to the power to make a determination as to costs incurred after the agreement. The existence of such a power was not in issue in these proceedings and I should not be understood as denying the existence of any such power (which clearly exists under cl 9.5(b)).