JW Cross and Sons (A Firm) v Parkridge Group Pty Ltd

[2017] WADC 24

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JW CROSS & SONS (A FIRM) -v- PARKRIDGE GROUP PTY LTD [2017] WADC 24

CORAM:   STONE DCJ

HEARD:   20-23 SEPTEMBER, 12-13 & 16 DECEMBER 2016

DELIVERED          :   24 FEBRUARY 2017

FILE NO/S:   CIV 789 of 2014

BETWEEN:   JW CROSS & SONS (A FIRM)

Plaintiff

AND

PARKRIDGE GROUP PTY LTD
Defendant

MPM DEVELOPMENT CONSULTANTS PTY LTD
Third Party

Catchwords:

Contract - Tort - Estimate or quotation - Implied term of concluded agreement or contract - Loss or damage - Agency - Whether breach of agency - Whether breach of contract by agent - Whether negligence by agent

Legislation:

Nil

Result:

The plaintiff's claim against the defendant allowed
The defendant's claim against the third party dismissed

Representation:

Counsel:

Plaintiff:     Mr M Curwood

Defendant:     Mr T Houweling

Third Party                  :     Mr T M Clavey

Solicitors:

Plaintiff:     Lander Lawyers

Defendant:     Cornerstone Legal

Third Party                  :     Jarman McKenna

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

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] 180 CLR 266

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] 149 CLR 337

Damevski v Giudice (2003) 133 FCR 438

Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130

Hayward v Timility [2009] NSWDC 54

Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326

International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644

Kyren Pty Ltd v Built Projects Pty Ltd [2006] SASC 204

Manfate Pty Ltd v Krahe & Krahe (No 1) [2016] NSWDC 70

Meates v Attorney-General [1983] NZLR 308

Palermo v Palermo [2015] WASCA 49

Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32

STONE DCJ: 

Introduction

1. The plaintiff, JW Cross & Sons (JW Cross) was an earthmoving company that supplied wet and dry hire, undertook demolition and carted recycled products.

2. The defendant, Parkridge Group Pty Ltd (Parkridge) was engaged in the subdivision of residential blocks on land at Eaton.

3. The third party, MPM Development Consultants (MPM) was engaged by Parkridge to provide engineering services for the development of the subdivision.

4. Between 11 December 2012 and 6 January 2013 JW Cross, at the request of Parkridge, removed and disposed of two large stockpiles of waste material from land in the subdivision.  The waste material comprised soil, building rubble, timber and suspected asbestos.

5. On 7 December 2012, prior to the commencement of any work, a meeting took place at the site of the subdivision between Mr Kelvin Roberts on behalf of JW Cross and Mr Craig Pippin of MPM on behalf of Parkridge.

6. JW Cross contends Mr Roberts gave Mr Pippin an oral estimate of the cost to remove and dispose of the stockpiles that did not include the tipping fees that would be incurred.  JW Cross claims their oral agreement was for JW Cross to remove and dispose of the stockpiles and Parkridge to pay JW Cross' usual hourly charge-out rates for its trucks, excavator and other equipment and the reasonable tipping fees incurred by JW Cross.

7. Parkridge contends Mr Roberts gave Mr Pippin an oral quotation of $16,000 to remove and dispose of the stockpiles.

8. On 8 December 2012 JW Cross commenced work by covering the stockpiles with shade cloth.  Between 11 December 2012 and 6 January 2013 the stockpiles were removed and disposed of at a tipping facility in Stanley Road in Australind controlled by Peel Resource Recovery Pty Ltd trading as Cross Resource Management (Peel Resource Recovery).  Subsequently JW Cross rendered an invoice to Parkridge for $215,976.49 inclusive of tipping fees which it contends were its usual charge-out rates for carrying out the work.

9. Parkridge claims JW Cross was bound by the contract to remove and dispose of the stockpiles for the fixed quote of $16,000.  Parkridge claims the fixed quote contemplated all costs associated with removing the stockpiles including the cost of hiring the trucks and equipment and tipping the waste material at a tipping facility.  Parkridge claims JW Cross was estopped from claiming more from Parkridge than the fixed quote.  Parkridge claims JW Cross engaged in misleading and deceptive conduct in making the representation that the works would be carried out for the fixed quote and 'by a specified amount of employees and equipment'.

10. Parkridge also claims it is entitled to an indemnity by MPM towards Parkridge's liability to JW Cross, if any, because MPM by failing to confirm the fixed quote in writing, breached MPM's contract with Parkridge; breached its agency relationship with Parkridge; acted outside the scope of its authority; or was negligent in its duty as a professional in the areas of civil engineering and project management causing Parkridge to incur loss and damage.

11. MPM contends Mr Roberts gave Mr Pippin a quote of $16,000 to remove and dispose of the stockpiles.  After Mr Pippin informed Mr Thurston Saulsman, the director of Parkridge of the quote, Mr Saulsman asked Mr Pippin to tell JW Cross to proceed to remove and dispose of the stockpiles.

12. MPM also contends any contractual obligations MPM owed Parkridge were limited to its Engineering Services Proposal and did not extend to project management or the negotiation of a contract for Parkridge with JW Cross.  Mr Pippin was not an agent for Parkridge but 'a conduit for the passage of information and communication between [JW Cross] and [Parkridge]'.  MPM claims Parkridge did not ask for, nor instruct Mr Pippin to secure, a formal quotation or submission from JW Cross confirming the terms upon which JW Cross was prepared to remove and dispose of the stockpiles.  Mr Pippin was not instructed or authorised to formalise Parkridge's arrangements with JW Cross in writing.  MPM also claims that if any agency arose, it was limited to passing on Mr Saulsman's instruction to JW Cross to proceed and the failure to confirm a quoted price in writing cannot be productive of loss.

13. MPM also claims that if JW Cross was entitled to be paid on a reasonable price basis, then Parkridge has suffered no loss as the reasonable price basis represents the value of the work provided, which Parkridge would have had to pay JW Cross or another contractor to perform the work.  MPM also claims that if there was a want of care on the part of MPM occasioning Parkridge's loss, then that loss was contributed to by Mr Saulsman's failure to confirm Parkridge's arrangements with JW Cross in writing.  MPM also claims that if JW Cross was entitled to be paid $215,976.49 by Parkridge, then Parkridge has failed to mitigate the damage claimed against MPM by way of a counter-claim for misleading and deceptive conduct.

The issues

(a)Whether the stockpiles were contaminated with asbestos material.

(b)What Mr Roberts and Mr Pippin discussed on 7 December 2012 and whether an oral agreement was formed between JW Cross and Parkridge to remove and dispose of the stockpiles for a fixed price of $16,000; or for a price which would be calculated in accordance with JW Cross' usual charges; or to be charged on a reasonable fee basis.

(c)Whether JW Cross undertook the work for the number of hours contended in JW Cross' invoice.

(d)Whether JW Cross disposed of 5,608 tonnes of waste material from the stockpiles.

(e)Whether the amounts charged by JW Cross in its invoice were in accordance with its usual charges.

(f)Whether the tipping fees charged by JW Cross in its invoice were reasonable charges.

(g)If JW Cross was entitled to be paid on its usual rates basis and the tipping fees were reasonable charges, whether Parkridge has suffered loss.

(h)Whether Mr Pippin was an agent for Parkridge in his dealings with JW Cross.

(i)Whether Mr Pippin was required by Mr Saulsman to formalise Parkridge's arrangements with JW Cross in writing.

(j)Whether Mr Pippin breached his duty of care to Parkridge by failing to confirm JW Cross quoted or estimated price in writing.

(k)Whether Mr Roberts made any representation on behalf of JW Cross which was misleading or deceptive or likely to mislead or deceive, or which could give rise to an estoppel.

(l)If there was no binding agreement between JW Cross and Parkridge, whether Parkridge has been unjustly enriched at the expense of JW Cross and, if so, what amount should be payable by Parkridge to JW Cross by way of restitution.

(m)If there was a want of care on the part of MPM occasioning Parkridge's loss, whether that loss was contributed to by Mr Saulsman's want of care attributable to Parkridge by failing to take any steps to confirm that Parkridge's contractual arrangements with JW Cross were subject to some form of written contract.

(n)Whether Parkridge has failed to mitigate any damage Parkridge suffered by failing to counterclaim against JW Cross for misleading and deceptive conduct.

The evidence

Timothy Donald Batt

1. In December 2012 Mr Batt was the Shire of Dardanup's manager of environment and emergency.

2. On 6 December 2012 Mr Batt, together with a student, attended the site of the subdivision and inspected two stockpiles on it.  Mr Batt observed that a recently created stockpile (the secondary stockpile) was less than half the size of the original stockpile.  When Mr Batt inspected both stockpiles he located a small quantity of fragments that he suspected were asbestos.  He took samples from the secondary stockpile.  Mr Batt was concerned the stockpiles may contain asbestos and material was being moved from the original stockpile to the secondary stockpile.  The secondary stockpile was photographed and a video recording was taken of it with the original stockpile in the distance.  Later that day Mr Batt informed Mr Pippin by email of his site visit; his suspicion that the stockpiles may contain a small amount of contaminated material that was possibly asbestos or asbestos containing material; his observation that the stockpiles also contained a large volume of general waste material which 'may be sufficient to classify the stockpiles and impacted areas as a contaminated site' with significant consequences for the future development of two of the lots; and his recommendations that Mr Pippin 'inspect the stockpiles and assess if the material being moved is … "clean fill" or … "contaminated" with waste material' and inform Parkridge 'as a high priority'.

3. On 7 December 2012 Mr Pippin responded to Mr Batt by email advising of his site visit that day; his suspicion that the material may have been asbestos; and outlining the measures he had taken to stop the stockpile relocation, the instructions given by [Parkridge] to ensure compliance 'with the requirements for correct handling' and the authorisation of JW Cross 'to prepare a management plan to remove the material in accordance with WorkSafe requirements'.

4. Mr Batt explained that the material from the stockpiles would need to go to an authorised landfill facility for acceptance of suspected contaminated material with asbestos.

Kelvin James Roberts

1. In December 2012 Mr Roberts worked for JW Cross as the operations manager/supervisor.  He was licensed to supervise the removal and transport of asbestos.

2. On 7 December 2012 Mr Roberts received a telephone call from Mr Pippin asking him to urgently attend the site of the subdivision to 'look at some asbestos which has been contaminated into a pile' because 'the Shire had gone up there [and] threatened to close the works down'.  In the late morning or early afternoon of that day he met Mr Pippin at the site of the subdivision.  They walked around the two stockpiles that were approximately 150 m apart.  In response to questions by Mr Pippin, he said he thought there was asbestos in both stockpiles.  Mr Pippin asked, 'How much of the pile is contaminated?'  He replied, 'You can't gauge how much the pile is contaminated but one piece of asbestos in a pile deems it contaminated as per (the Australian Standards)'.  They returned to their vehicles and 'discussed moving the (stockpiles)'.

3. Mr Roberts advised Mr Pippin of the type of equipment to be used; the quantity of material to be removed; the estimated cost to remove the material which he calculated by reference to the number of days required, the hourly rates of the excavator and trucks to be used, the number of trucks required on a daily basis and the tonnage of the trucks; and the location of the tipping facility where the material would be disposed of.  He told Mr Pippin it would cost 'roughly $16,000 to move it'.  When Mr Pippin asked 'how quickly [he] could respond to the job', he replied 'straightaway'.  Their discussion concluded with Mr Pippin asking him to start preparing a WorkSafe management plan.

4. Mr Roberts returned to the depot, spoke with Mr Mick Cross in the office and then started (a word format version of) an OHSE Subbypack Management Plan (WorkSafe Subbypack) in accordance with the asbestos guidelines.  He entered in the draft WorkSafe Subbypack against the heading 'Equipment Used' the size of the excavator and trucks in the depot that were available at that time.  He explained that if a larger piece of equipment was subsequently used that had the capacity to move more soil then there would be a higher charge for its use.  Later that day, he discussed with Mr Pippin over the telephone the WorkSafe Subbypack and what had to be done on site including covering the stockpiles with shade-cloth to stop any asbestos fibres blowing away.  He then received an email from Mr Pippin to proceed with the work 'as per our meeting today'.  Later that afternoon, he and a couple of workers purchased from a local business sufficient shade-cloth to cover the stockpiles.

5. On the morning of 8 December 2012 Mr Roberts co-ordinated and assisted the workers to cover the stockpiles with the shade-cloth.  The job took four hours.

6. On the morning of 11 December 2012 Mr Roberts emailed Mr Pippin a copy of the draft WorkSafe Subbypack to read before he submitted it to the Shire.

7. On the morning of 12 December 2012 work commenced on the removal of the stockpiles.  Initially a loader was used to fill the trucks until an excavator became available later that day.  At some stage that day following a telephone conversation Mr Roberts had with Mr Pippin, JW Cross purchased from Peel Resource Recovery crushed concrete to lay on the ground to stop trucks being bogged.  He did not discuss with Mr Pippin the cost of that work.

8. Mr Roberts explained that the drivers of equipment for JW Cross complete timesheets labelled 'Worker Daysheet/Pre-Start Form' or 'Hire Record'.  He also explained that Peel Resource Recovery fax to JW Cross every morning Peel Resource Recovery's gatehouse record of the number of trucks that enter its compound at the waste facility.  Peel Resource Recovery then charged JW Cross the tipping fees.

9. During the course of the works between 11 December 2012 and 6 January 2013 Mr Roberts was at the site on average once a day.  During that period he often had discussions with Mr Pippin.  He told Mr Pippin about the need to sweep the road to prevent residue entering the drains and dust, but they did not discuss the cost of that work.  By email dated 17 December 2012 Mr Pippin requested him to arrange a road sweep 'as part of [the] works'.

10. In his cross-examination by Mr Houweling, Mr Roberts said he met Mr Pippin at the site on 7 December 2012 but he could not recall who got there first.  The stockpiles were each about 2,000 tonnes.  Both he and Mr Pippin came to view that it would cost approximately $16,000 to remove the stockpiles.

11. Mr Roberts agreed he was unaware that there were any issues or problems with the job until late April 2013 when he received emails dated 24 April 2013 and 28 May 2013 from Mr Pippin requesting urgent contact concerning the statement for payment of $215,976.49 and pointing out that it 'exceeds [their] verbally agreed amount by nearly $200,000'.  He called Mr Pippin on the telephone before he sent the email on 28 May 2013 stating 'don't stress getting on to it'.  At the time he was extremely busy with '54 employees scattered between Mandurah and Albany'.

12. Mr Roberts agreed it was an average size job.  He agreed that against the 'Activity' heading in the draft WorkSafe Subbypack he recorded 'Remove contaminated spoil off site to licenced [sic] facility'.  He also agreed that was what he was requested to do.  He did not advise Mr Pippin of the changes that were subsequently made to the draft WorkSafe Subbypack in terms of the personnel or equipment used.  He did not provide Mr Pippin with a copy of JW Cross' 'Schedule of Rates'.  He explained that 'the job was done quickly due to the importance of it'.  At the site meeting on 7 December 2012 he did not advise Mr Pippin (that Parkridge) would need to pay anything further or additional for the cost of dumping the material.  He agreed that at no stage did he dispute Mr Pippin's contention that it was a $16,000 fixed price contract for the works.

13. In his cross-examination by Mr Clavey, Mr Roberts said he did not record all orders.  He recorded orders in his diary that he thought he would not remember.  An electronic version of an order would be saved.  He started estimating and quoting jobs approximately five years ago.  He was a mechanic by trade.  He drove loaders and excavators before moving across to estimating.  He attended an asbestos removal course, an asbestos handling course and a friable course to secure his restricted asbestos licence.

14. Mr Roberts said he emailed the draft WorkSafe Subbypack to Mr Batt when he emailed it to Mr Pippin.  He last saw the original signed copy of the WorkSafe Subbypack in the back of the excavator used on the job.  The draft of the WorkSafe Subbypack differed from the original signed copy of the WorkSafe Subbypack because there were more trucks and operators (used to remove and dispose of the stockpiles).  He explained that the original signed copy of the WorkSafe Subbypack was sent to the site and kept on the lead machine so that everyone who went onto the site signed onto it.  The drivers of trucks made changes to the original signed copy of the WorkSafe Subbypack by signing on with a pen on site.  He agreed that when he entered the information in the draft WorkSafe Subbypack regarding the equipment that was going to be used for the job he based that on what was available at the time at the depot.  He agreed that when he spoke to Mr Pippin that day about how he would do the job he was basing what he told Mr Pippin on what equipment he thought was available at the time.  After 7 December 2012 he did not inform Mr Pippin that he would perform the work differently by using more trucks or change the size of the excavator.  It was his understanding that Mr Pippin wanted the job done as quickly as possible.  As the trucks became available he designated them for that job.  However, 'at the end of the job "X" amount of tonnes had to be carted.  So, it doesn't matter whether two trucks did it or 10 trucks did it … still would have come out to the same cost'.  He explained the discrepancy between what he told Mr Pippin would be the number of trucks required to move effectively 4,000 tonnes of soil compared to the number of trucks actually required was because of an error in the quantities and calculations.  He estimated 4,000 tonnes of material whereas in fact 4,683 tonnes were moved.

15. On 7 December 2012 whilst Mr Roberts and Mr Pippin were walking around the stockpiles, Mr Pippin mentioned the Shire's concern; the Shire could potentially register the site as a contaminated site and shut down the site.

16. By the end of April 2013 Mr Roberts was aware that there was an overcharging issue with Mr Pippin over the cost plus calculation for the job and tipping fees.  After that, over a period of time, he went back and looked at documentation for the job including the invoice, work sheets, what equipment was used and emails to check that the work was performed correctly.  Around July 2013 he spoke with Mr Pippin and indicated JW Cross would reduce the amount of the invoice to $117,000 by removing the 15% mark-up on the labour, machines and tipping fees.

Matthew Campbell

1. Mr Campbell was an asbestos assessor and a director of Site Environmental and Remedial Services that specialised in asbestos contaminated sites and monitoring services mainly to the development and construction industry.

2. Mr Campbell observed asbestos in the digital photographs and a video recording of the stockpiles that he examined.

3. Mr Campbell explained the waste classification was that the stockpiles were asbestos contaminated stockpiles.

Richard Digby Cross

1. Mr Cross was a director of Peel Resource Recovery which controls the landfill and recycling facility at Stanley Road in Australind.

2. Mr Cross explained how rubble or spoil was dealt with within the licensed landfill facility:

   the gatehouse attendant checks the load, makes sure that it's catalogued correctly.  She will get the driver to sign the spread sheet … if it's asbestos, it'll be shown where the asbestos site is and then they'll go and tip it … at the end of the day that gets covered with clean fill.

3. Mr Cross also explained the relationship between Peel Resource Recovery and JW Cross.

Gillian Brooks

1. In December 2012/January 2013 Ms Brooks was an accounts clerk for JW Cross invoicing debtors.  She prepared the tax invoice dated 31 December 2012 from JW Cross to Parkridge for $215,976.49.

2. Ms Brooks also prepared for the purposes of trial a spread sheet analysing and reviewing that invoice by reference to the source documents comprising JW Cross timesheets, tipping ledgers and tipping invoices.  She was satisfied the invoice was an accurate representation of the source documents she had been given.

3. In her cross-examination by Mr Houweling, Ms Brooks explained that when she did an invoice she would give the invoice together with the documentation she relied upon to create it to Mr Roberts to check.  If everything was correct he would give the invoice back to her to post.  If there were alterations to make, she would make the alterations and give them back to Mr Roberts.  She dealt with [the Parkridge] job in the ordinary process.  Mr Roberts gave back the invoice to her because he wanted the work in January included in it.  JW Cross received invoices from Peel Resource Recovery with a 20% discount off Peel Resource Recovery's rates.  It was an intercompany agreement based on quantities of work JW Cross gave Peel Resource Recovery.  JW Cross did not pass on the 20% discount to its clients who were charged the normal rates according to JW Cross's Schedule of Rates.

4. In her cross-examination by Mr Clavey, Ms Brooks explained that when JW Cross did a written quote she was given the information by Mr Roberts which she typed into her MYOB system and generated a written quote.  If Mr Roberts gave an oral quote it would not form part of that system.

Thurston John Saulsman

1. Mr Saulsman was a director of Parkridge.

2. In 2011 Mr Saulsman changed engineers and he approached Mr Pippin as an engineer for Parkridge for development of the subdivision.  He explained what he was looking for in a new engineer: he required proper reporting, proper contractual works with the contractor, proper minutes kept, proper co-ordinating of additional contractors and in particular everything had to be in writing, confirmed and given back to him.  He made it clear to Mr Pippin 'that anything he did outside his contract that he would need to confirm … if there was a price to be charged he would need to confirm with me before he proceeded.  If he appointed any other contractor aside [from] the main contractor, something came up that had to be attended to, that he was to get a quote, confirm the quote with me and then confirm the quote with the client'.  He wanted quotes given by contractors to be in writing or 'at best' confirmed by Mr Pippin because 'the engineer is the go to guy on-site'.

3. Mr Saulsman did all the project management.  The engineer basically designs a subdivision to produce subdivided blocks.  The engineer dealt with infrastructure, the supervision of the contract, the design of earthworks, the surveyor and the Shire.  The engineer did estimates of the earthworks.  If there was a tender, the engineer prepared all the tender documents and sent it out.  The engineer dealt with all the issues that might arise out of the contract.  The engineer processed progress claims from the contractor which the engineer then sent to him for approval for the payment.  After Mr Pippin's appointment Mr Pippin had authority to enter into agreements for and on his behalf outside the contract with the main contractor, APH Contractors Pty Ltd (APH Contractors).  In one instance because of a council requirement for trees to be planted along the main road, Mr Pippin under his instructions asked a landscaper to provide a quote for him.  Upon receipt of the quote from the landscaper, he approved it and sent it back to Mr Pippin with instructions to proceed.

4. Mr Saulsman explained how over two to three years the [original] stockpile went from a mound of rubble and soil to a mound of the remnants of sifting with plants, grass and weeds growing over it and the plans he had to relocate it.  He had a contract with APH Contractors to shift the original stockpile to 'the Second Stage' with an estimate of 4,000 cubic metres to be shifted at a cost of $16,000.

5. When Mr Saulsman heard of the Shire's concerns about the stockpile he asked Mr Pippin to write to the Shire.  Around 7 December 2012 he was advised by Mr Pippin that the Shire had inspected the site and the Shire believed there was asbestos in the stockpile(s).  When Mr Pippin recommended the stockpile(s) be removed, he said, 'If you're going to do it, do it properly.  Let the Shire know what you're doing and coordinate with them'.  Mr Pippin told him that JW Cross was the expert that specialised in that type of work.  He told Mr Pippin to get a quote from JW Cross.  Subsequently Mr Pippin told him he had received a quote for $16,000 to remove the stockpile(s).  He was not surprised because he did not believe that the [original] stockpile had asbestos in it.  He told Mr Pippin to check the quote with APH Contractors to see if it was prepared to do the job because of the $20,000 contingency in the contract price.  When Mr Pippin advised that APH Contractors was not prepared to do the job he told Mr Pippin to go ahead, accept JW Cross' quote and get them to remove the stockpile(s). 

6. Mr Saulsman was expecting Mr Pippin to confirm with JW Cross acceptance of the quote and [his instruction] to proceed with the removal of the stockpile(s) and an email from Mr Pippin as confirmation of his instructions in that regard.  He did not want (JW Cross') quote in writing.  He wanted Mr Pippin's confirmation of JW Cross' quote [in writing].  He did not tell Mr Pippin to confirm the quote because Mr Pippin knew what his instructions were.  Mr Pippin knew how he was conducting his business.  He did not feel that he had to tell Mr Pippin how to do his job.  Mr Pippin had done it before.  Mr Pippin understood that he wanted the quotes confirmed.  If he did not get the quote in writing he wanted it confirmed.  He did not feel that he had to tell Mr Pippin, 'Don't forget, put it in writing.  Don't forget to do this.  Don't forget to do that'.

7. From 20 December 2012 until mid-February 2013 Mr Saulsman was overseas.

8. At some stage Mr Pippin advised Mr Saulsman the Shire had been to the site and there was no concern.  Some-time after his return in mid‑February 2013 he was putting together his accounts and he could not find any record of the approval of the quote or an invoice from JW Cross.  In mid-March 2013 when he asked Mr Pippin what was happening to the invoice, Mr Pippin said he was chasing them up for it.  In May 2013 Mr Pippin told him JW Cross was asking $215,000 for payment for the job.  He asked Mr Pippin, 'Well, did you confirm the quote?'  Mr Pippin said he did not confirm the quote.  He said, 'Why didn't you?  I mean this is exactly why I told you [to] do it, so we don't have these type of …' Mr Pippin said, 'Oh, he was a mate' or 'I didn't think I would have a problem with him'.

9. By email dated 10 July 2013 Mr Pippin claimed he had told Mr Saulsman 'in November 2012 that JW Cross advised [him] that the removal of the unsuitable stockpile would be in the order of $18,000', however, the quote given to him by Mr Pippin was for $16,000.  Later Mr Pippin told him he asked JW Cross to sweep the roads for 'a couple of grand'.  By email dated 10 July 2013 he responded to Mr Pippin confirming that '[Mr Pippin was] very much aware of our strict policy that we do not approve any work until we receive a proper quote and then we authorize that work in writing'.  During his discussions with Mr Pippin around July 2013, Mr Pippin always maintained the quote from JW Cross was a fixed price quote for $16,000.  Mr Pippin said, '[Mr Roberts] was a mate.  He didn't really know why he didn't receive that quote in writing … He was really embarrassed … he's learnt a lesson and he would never do it again'.  At some stage Mr Pippin told him the invoice had been sent to MPM Consultants, Mr Pippin understood he was his agent but the contract was not with Mr Pippin.  He agreed the invoice should be sent to him.

10. In his cross-examination by Mr Clavey, Mr Saulsman agreed that as part of the overall negotiations with Mr Pippin he asked Mr Pippin for an engineering fee per lot to be included in an Engineering Services Proposal.  He asked Mr Pippin to be his engineer for his entire project.  He subsequently received from Mr Pippin on 9 November 2011 the Engineering Services Proposal dated 25 August 2011 (the Engineering Services Proposal).  He understood that MPM Consultants was offering to provide engineering services in two parts.  Part A in relation to project establishment, design and approvals which made MPM responsible for various things including design and documentation of earthworks, road works, sewerage, water reticulation, drainage and other things; engineering services in relation to tender documentation and contract administration of construction; and services in relation to the administration of the construction phase of the contract in accordance with an Australian Standard.  The business practice of committing to writing quotes was not included in the Engineering Services Proposal because it had been discussed with Mr Pippin: 'I'm dealing with a professional engineer, we discuss things, he knows what I want, and we conducted our business on a professional basis'. 

11. By email dated 30 October 2012 Mr Pippin made Mr Saulsman aware of the need to remove/relocate the stockpile.  Mr Pippin's dealing with the landscaper was an ad hoc engagement outside the Engineering Services Proposal.  The tree requirements had nothing to do with the drainage system.

12. Mr Pippin told Mr Saulsman he had approved the work in writing by an email as instructed, but Mr Pippin did not confirm the cost of the work in that email.  He agreed that there were no documents in his Discovery Affidavit for these proceedings that evidence his practice of requiring written confirmation of quotes.  Mr Pippin got a quote from the landscaper for the trees.  He told Mr Pippin to go ahead and tell the landscaper to bill him.  Mr Pippin sent an email to the landscaper copied to him confirming it.

13. Mr Saulsman was aware from the minutes of a site meeting on 14 November 2012 that the Shire requested the stockpile relocation be postponed subject to further advice from the Shire's environmental department because of possible contaminants in the stockpile.  On 16 November 2012 he spoke on the telephone to Mr Pippin about the relocation of the stockpile because it was starting to impact on APH Contracting's works.  At some stage he told Mr Pippin about the source material for the stockpile, how it arrived at the site, what had been done to it by screening and the Shire was aware of the screening.  He recalled approving Mr Pippin's letter dated 22 November 2012 to the Shire regarding the relocation of the stockpile.  He explained the relocation of the stockpile was part of an earthworks issue between Parkridge and the Shire because earthworks had started by moving the stockpile without getting approval: 'So when we started moving the stockpile, which is part of the earthworks contract that's when they starting coming down, saying, "We're going to stop your work" and so forth'.  The Shire threatened to stop the work because the earthworks had started without approval.  The alleged contamination of the stockpile did not come into that at that stage.  He subsequently had a conversation with Mr Pippin about moving the stockpile to a location on Parkridge's land as close as possible to the regional open space area.

14. On 6 December 2012 Mr Pippin telephoned Mr Saulsman relaying the events of that day about the Shire attending the site, recommending removing the stockpile as quickly as possible and stating that he knew of a local contractor who specialised in that type of work.  He asked Mr Pippin to resolve the issue properly and contact the Shire.  On 7 December 2012 Mr Pippin telephoned him advising that he had met with Mr Roberts of JW Cross, they had attended the site and JW Cross could do the job for $16,000.  He told Mr Pippin to confirm with APH Contractors whether it could do the job for $16,000 and give it first option.  Mr Pippin subsequently advised him that APH Contractors said it did not want to do it unless JW Cross did it.  He told Mr Pippin to proceed.

15. In his cross-examination by Mr Curwood, Mr Saulsman said he had not seen the email dated 14 November 2012 from the Shire to Mr Pippin stating 'Could you please flick through a plan or aerial showing the proposed location that the spoil heap is to be relocated to?  Please hold off any movement of this spoil heap as EPA may have to be involved in the approval process'.

16. In his re-examination by Mr Houweling, Mr Saulsman said when Mr Pippin recommended the landscaper or JW Cross he relied upon Mr Pippin giving him his advice because Mr Pippin was familiar with the contractors in Bunbury.

Craig Leslie Pippin

1. Mr Pippin was an engineering director employed by MPM.

2. In his evidence-in- chief led by Mr Houweling, Mr Pippin explained his role as an engineer with MPM was to assist clients who had large parcels of land, to bring that land to development.  It involved the design of the roads, the pipes, the services, and the infrastructure.  On some occasions, it involved administering contracts for the clients to arrange for these works to be constructed.

3. Mr Pippin also worked in the capacity of a superintendent, as that term was defined under the Australian Standard General Conditions of Contract (AS2124-1992), if he was employed to do so under an AS2124‑1992 contract.  He did not work under an AS2124-1992 contract for Mr Saulsman.  He would not define his role as 'solely' a superintendent in respect of the work he was undertaking for Parkridge.

4. Mr Pippin provided Mr Saulsman with the Engineering Services Proposal which set out a number of ways in which he would be arranging and dealing with the subdivision and development of land owned by Parkridge.

5. On most occasions, as part of the records of his business, Mr Pippin would make a note of telephone calls and record what he was doing in writing.  He would do that in the course of the entire recommended tasks or all tasks that the client requested that he undertake.

6. Mr Pippin had direct involvement in respect of the most economical way of relocating the stockpile(s).  The original intention was to relocate the stockpiles within the site and utilise them as non-structural fill later on the project.

7. When Mr Pippin first looked at the stockpile, prior to giving an Engineering Services Proposal to Mr Saulsman, he saw 'a pile of grass, essentially, and weeds.  There was [sic] a few tree trunks from recollection that were sticking out of the pile'.

8. Around the time that APH Contractors had commenced relocating the [original] stockpile from within Stage 2A of the subdivision, Mr Pippin was contacted by Mr Sorfleet from APH Contractors about the [original] stockpile.  He subsequently received an email from Mr Batt which he forwarded to Mr Saulsman.  He then met Mr Sorfleet on site and requested that APH Contractors stop work on the relocation of the [original] stockpile.  On the way back to his office he telephoned Mr Roberts.  He then returned to the site and telephoned Mr Saulsman.

9. On 7 December 2012 Mr Pippin returned to the site.  He pulled up in his car alongside Mr Roberts who was at the site.  After greeting Mr Roberts, he said 'we'd been advised by Tim Batt at the Shire of Dardanup that the stockpile contained potentially contaminated asbestos material and that they had advised us that they were going to potentially make the site a contaminated site'.  When he got out of his car, he and Mr Roberts began looking at the disturbed area of the original stockpile.  They wandered around for three to four minutes.  They then got in his car and drove to the secondary stockpile which was 100 – 120 m away.  They drove around a third of the secondary stockpile before getting out of the car to look at some material that Mr Roberts indicated looked like asbestos cement material.  Mr Roberts said it was a piece of concrete that had a corrugation that was similar to asbestos cement sheeting.  They got back in the car and drove back to the original stockpile.  He asked Mr Roberts what could be done with the stockpiles.  Mr Roberts indicated 'that as there was some asbestos in there, all of the stockpiles needed to be classed as contaminated material or asbestos-contaminated material and would need to be removed'.  He asked Mr Roberts when he could commence the works.  Mr Roberts replied, 'straightaway'.

10. Mr Pippin asked Mr Roberts 'roughly' how long it would take to do the works and what it would cost to remove the stockpiles.  Mr Roberts said it would cost $16,000.

11. During their discussion there was mention of tarping the trucks and Mr Pippin would need to seek the client's approval before proceeding with the works.  Mr Roberts then exited his car and he left the site.

12. Mr Pippin returned to his office and called Mr Saulsman advising him of his discussion with Mr Roberts; that JW Cross could remove the stockpile for a price of $16,000, although as a contingency it could be $17,000 ‑ $18,000.  Mr Saulsman said, 'Can you please ask Shane [Farrell of APH Contractors] if he can do the work for that?'  After calling Mr Farrell he advised Mr Saulsman that APH Contractors was unable to do the works for $16,000.  He then emailed Mr Roberts requesting that Mr Roberts proceed with the works as discussed that morning, lodge the required work plans and tarp the trucks.  The email did not include the price or how long it was going to take to do the works.

13. At no time did Mr Pippin write back to JW Cross or Mr Roberts confirming the price for the works.  He did not recall Mr Saulsman telling him previously to confirm all details in writing.  He relied upon 'the $16,000 quote'.  He understood it 'included the removal of the stockpile … and it was all inclusive of all works'.  There was no discussion with Mr Roberts about the number of trucks or equipment that was to be used on the site or tipping rates. 

14. In late April 2013 JW Cross sent MPM a statement for payment.  After his receptionist contacted JW Cross, Mr Pippin emailed Mr Roberts.  It was the first time that he was aware that the amount of the works exceeded what he had discussed on site.  If he knew the cost would exceed $16,000 he would have proposed alternatives.  He did not get a response from Mr Roberts until 28 May 2013.  In mid-June 2013 Mr Roberts turned up unexpected at the MPM office and spoke with him.  Mr Roberts asked 'if the client would consider paying some of the amount in order to move on'.  He replied 'the amount as per the statement was considerably more than the original quote and the client would not have proceeded with the works if they had have known it was that value'.  Mr Roberts advised 'he was going to get on to it and he would sort it out'.  Mr Roberts then sent him an email dated 27 June 2013 for an amount of $117,897.75 that included a very brief breakdown of machinery time and disposal costs.  He emailed Mr Roberts on 28 June 2013.  Approximately a week later Mr Roberts called him advising that 'he would be willing to reduce the price further [by] removing the 15% mark-up'.

1. In the meantime, Mr Pippin corresponded with Mr Saulsman in late June /early July 2013 about what had transpired.  On another occasion he spoke with Mr Saulsman in the driveway of his home.  Mr Saulsman indicated he believed JW Cross had obviously made a mistake and he would review the correspondence he had sent him and get back to him.

2. In his evidence-in-chief lead by Mr Clavey, Mr Pippin explained MPM's focus was around the land development industry.  There were three directors or three partners within the business who looked after different sections of the land development process.  Mr Pippin attended to the engineering section, another director attended to the town planning section and the third director attended to the project management section.

3. In 2011 Mr Pippin was contacted by Mr Saulsman.  Mr Saulsman advised he was looking at changing the engineering consultancy on his project at Parkridge and asked if he was interested in becoming involved in an engineering capacity.  Subsequently MPM created and forwarded an Engineering Services Proposal to Mr Saulsman for review.  Mr Saulsman indicated he required engineering services for the development.  Mr Saulsman did not indicate he required project management services from him.  He believed Mr Saulsman indicated he was the project manager.  MPM did not offer Mr Saulsman project management services.  Subsequently it became apparent that Mr Saulsman acted as the project manager.  Mr Saulsman did not give him any specific instructions concerning any of his business practices.  Mr Saulsman did not specify any particular requirement concerning 'Parkridge's engagement of people like JW Cross'.

4. In 2011, around the time of his initial discussions with Mr Saulsman, Mr Pippin inspected the project site.  He observed the original stockpile, which was located within what was to become Stage 2A of the development, was on proposed lots 33 ‑ 35.  It was located essentially in the middle of a paddock.

5. In 2012, after Mr Pippin was engaged by Mr Saulsman, he returned to the site during the design phase and took some photographs of the land which also depicted the original stockpile.  Subsequently there was a need to relocate the original stockpile because it was located on lots to be sold during Stage 2A.

6. In 2012 Mr Roberts was Mr Pippin's contact at JW Cross.  At that time MPM had an engagement with JW Cross as the client with respect to a subdivision that JW Cross was doing in Boyanup Picton Road.

7. On 30 October 2012 Mr Pippin attended a site meeting with Mr Sorfleet from APH Contractors and Mr Hewett from the Shire.  Mr Sorfleet wanted direction as to where to relocate the original stockpile.  Mr Hewett was unsure whether the Shire would be happy about the relocation and he requested a copy of the relocation plan.  After the meeting he emailed Mr Saulsman a copy of a sketch plan showing a potential location for relocation of the original stockpile.  Mr Saulsman advised him to relocate the original stockpile to the eastern side of the site.

8. On 14 November 2012 Mr Pippin attended another site meeting with Mr Sorfleet and Mr Hewett.  Mr Hewett advised the Shire may have some environmental concern about shifting the original stockpile and the Shire wanted to see the relocation plan.  Mr Sorfleet indicated the proposed relocation site was on the other side of the fence near a dam and there were cattle grazing in the paddock.  Later that morning Mr Hewett emailed him requesting a relocation plan and to 'hold off on any movement of this spoil heap as EPA may very well be involved in this approval process'.  He recorded in his minutes of the meeting 'SoD requested that stockpile relocation be postponed subject to further advise [sic] from SoD environmental department, possible contaminants in stockpile'.  After consulting Mr Saulsman, he emailed Mr Hewett a relocation plan.  He stated in that email he had been 'advised that the stockpile generally contains tree roots, heavy organic and topsoil material as a result of a screening process that occurred several years ago.  [He] would have thought that any potentially contaminated material would have been removed at that stage, if it was present'.  It was his opinion, at that time, that the Shire could not stop the relocation of the original stockpile because he understood the original stockpile contained material from a screening process several years ago and the Shire had no evidence that the original stockpile contained anything else.  He then wrote to the Shire by letter dated 22 November 2012 in relation to moving the original stockpile and 'to get a response from the Shire … to justify their reasoning as to the comment with regard to the EPA'.  When no response was received from the Shire, APH Contractors proceeded to move the original stockpile.

9. On 5 December 2012 Mr Pippin inspected the site of the original stockpile.  'It was essentially a broken, open stockpile of topsoil material, tree stumps and bricks'.  About 30 ‑ 40% of the original stockpile had been removed.

10. On 6 December 2012 Mr Sorfleet advised Mr Pippin that the Shire's Mr Batt had attended the site, requested permission to enter it, inspected the stockpiles and found suspected asbestos contaminated material.  He then attended the site, had a discussion with Mr Sorfleet and took some photographs of the original stockpile and the secondary stockpile.

11. On his way back to his office, Mr Pippin stopped and telephoned Mr Roberts as Mr Roberts was capable of asbestos management.  He asked 'if JW Cross were able to remove suspected asbestos‑contaminated material and were they available to do a job that may need to be done fairly quickly and was he able to attend the site for a meeting as soon as possible'.  Mr Roberts advised he had the capacity to do the job straightaway, he was unable to meet that day but he could meet the following morning.  They arranged to meet the following morning.  He then drove back to the site, called Mr Saulsman and advised of his on‑site discussion with Mr Sorfleet; the Shire had attended the site and found material it believed was suspected cement material; the Shire was going to be in contact with him that afternoon; and he was aware of a local contractor that was capable of undertaking the works.  Mr Saulsman asked him to deal with the issue properly, advise the Shire accordingly and get a price for the works.  He made a note of his conversation with Mr Saulsman and Mr Saulsman's instructions.  Later that afternoon he received an email from Mr Batt.

12. On 7 December 2012 Mr Pippin met Mr Roberts at the site.  When he first pulled up he told Mr Roberts the Shire may register the site as a contaminated site and Mr Batt had found suspected asbestos‑contaminated material.  Mr Roberts indicated a management plan needed to be lodged with the Shire's Health and Environment Department.  The two stockpiles were about the same size.  The suspected asbestos‑contaminated material identified by Mr Roberts was on a limestone block.  Mr Roberts indicated that as the stockpiles contained one piece of asbestos they would need to be removed.  When he returned to the office he made a note of 'that conversation or that site inspection'.  He then telephoned Mr Saulsman twice and made a record of those conversations and Mr Saulsman's instructions.

13. Around 16 or 17 December 2012 Mr Pippin attended the site for a routine inspection and noticed JW Cross had commenced work.  He took photographs of a loader and an excavator parked in the vicinity although the main purpose of the photographs was to show the work completed by APH Contractors.  About 50% of the original stockpile had been removed.  When he left the site he noticed the road away from the development was covered in construction dust and waste.  He subsequently emailed Mr Roberts requesting that he arrange for the road to be swept as '[he] was concerned it was material exiting their trucks as they were leaving the site' and thanked him for starting the works.  When he returned to the site on 7 January 2013 after the Christmas break, the stockpiles were removed.

14. Mr Pippin explained the tree pits on the drainage plan were part of the engineering works as it was part of the stormwater drainage function.  As APH Contractors did not want to put in the trees, he sourced a quote from a landscaping company to undertake the installation of the trees.  Securing the quote was part of his fee proposal range of services.

15. In his cross-examination by Mr Curwood, Mr Pippin agreed he stated in his letter dated 22 November 2012 to Mr Hewett '[he was] instructed to advise the contractor to continue with the subdivision work as contracted and [he was] further advised to request from the Shire of Dardanup specific detail and reference of any offense [sic] [his] Client may commit by completing the earthmoving requirement for the subdivision of [his] Client's land'.  He agreed one of the reasons for the attitude he was taking was that nobody had identified to him any contaminants or contaminated material but that did not mean he was 'free to do whatever [he] wanted with that' stockpile.  It was his understanding that 'the [original] stockpile could be relocated inside the subdivision approval area because [Parkridge] had approval under the subdivision conditions to undertake earthwork'.  He agreed that at a site meeting on 14 November 2012, attended by Mr Sorfleet and Mr Hewett, he was told there were possible contaminants in the [original] stockpile.  An hour after that site meeting he received an email from Mr Hewett stating 'Please hold off on any movement of this spoil heap, as the EPA may very well be involved in this approval process'.

16. On 6 December 2012 APH Contractors were moving the original stockpile to a fresh location 100 to 120 metres away [the secondary stockpile].  [After Mr Batt's site visit] Mr Sorfleet showed Mr Pippin a piece of material that Mr Sorfleet believed was asbestos cement material.  He telephoned Mr Roberts before he received Mr Batt's email.  He had not received 'anything official or otherwise from the Shire about potential asbestos contamination on that site before [he] rang Mr Roberts'.  He stood down APH Contractors from moving the [original] stockpile further.  He did that because 'if there was suspected asbestos cement material in there [he] was unsure how to handle it, so the best course of action is to cease the work'.  Notwithstanding what he was told at the site meeting on 14 November 2012, he denied '[Parkridge] kept proceeding with the works requiring the Shire to come down and make a diagnosis of the stockpile'.

17. Mr Pippin denied that he told Mr Roberts in their initial telephone conversation 'that there was some urgency to meet because the shire had threatened to close the works down'.  He demobilised APH Contractors from the stockpile relocation works 'not works as a whole under the APH contract' in the construction of all the roads and associated infrastructure with Stage 2A.  He agreed standing down APH Contractors for the relocation works was a potential delay for which the contractor could claim and may delay the ultimate release of Parkridge's release of the land.

18. On 7 December 2012 Mr Pippin was told by Mr Roberts, 'if there was one fibre within the original stockpile and this was a relocated stockpile, then it was - would be treated the same'.  Mr Roberts 'mentioned taking the materials to a subdivision in Boyanup Picton Road that JW Cross was undertaking'.  Mr Roberts said, 'he would have to do a work management plan that would have to be prepared and lodged with the Shire'.  At 11:23 am Mr Pippin forwarded Mr Batt's email of 6 December 2012 to Mr Saulsman stating 'As discussed, [he found] this very threatening particularly to mention the potential for a contaminated site and that future development may be precluded.  [He would send Mr Saulsman his] proposed email response shortly and will then add [his] email information to create a letter of response.' At 11:30 am he emailed Mr Saulsman stating 'Thurston, my proposed immediate response which can then follow with the formal letter.  Just thinking, I would like to be seen as proactive in resolving the issue ASAP'.  He included in that email a draft of the email sent to Mr Batt later that day at 3:00pm.  In the draft to Mr Batt he indicated that that morning he

    met with JW Cross & Sons at the site and reviewed both piles of materials.  JW Cross have advised that they hold the appropriate licences to remove and dispose of this type of material.  JW Cross have been authorised to prepare a management plan to remove the material in accordance with the WorkSafe requirements.  JW Cross will also be covering the stockpiles as soon as they possibly can to prevent any potential windblown material.

    At 3:15pm he emailed Mr Roberts authorising JW Cross to proceed with the works and lodge a management plan with the Shire.

19. In the meantime, Mr Pippin called APH Contractors on Mr Saulsman's instructions to see if APH Contractors could do the work for $16,000, although he was aware APH Contractors did not hold the appropriate licences to remove asbestos contaminated material.  At the site meeting he did not tell Mr Roberts to proceed to start a management plan in accordance with Worksafe requirements.

20. Mr Pippin agreed his email to Mr Saulsman at 11:30am on 7 December 2012 made no mention of anything discussed with Mr Roberts on the site such as the alleged quote.  He denied that was because the primary concern was the Shire declaring the site a contaminated site.  It was a concern, but not the primary concern.  He agreed the instructions he was taking that day from Mr Saulsman were in quick succession.

21. Mr Pippin agreed he put on his curriculum vitae (attached to the Engineering Services Proposal) that he had training in 'acid sulphate soils and contaminated sites' but the training only related to acid sulphate soils.  Before he spoke to Mr Roberts, he knew that the potentially contaminated asbestos material needed to be handled differently than what was proposed under the APH Contractor's contract of simply relocating it.  He agreed that 'without any specialist qualifications, any layperson knows asbestos has to be treated and disposed [of] a certain way'.  He did not know that tipping fees would be payable by JW Cross and on-charged to Parkridge.

22. Mr Pippin did not agree that it was incorrect to state in his email dated 10 July 2013 to Mr Saulsman that '… in November 2011 [JW Cross] advised me that the removable of the unsuitable stockpile would be in the order of $18,000 …'.  The date was obviously wrong and the amount was what he estimated the works would cost.  He agreed it was incorrect to state in that email that the sweeping of the road and tarping of the stockpiles was additional work he asked JW Cross to undertake at the request of the Shire and formed part of the asbestos management plan.  He went on to state in that email 'so I was aware that there was some extras, however as there was a likely minimal cost I got them to do the works ASAP to keep the Shire happy and to keep APH moving on the other subdivisional works'.  He agreed he authorised the additional works.  He also agreed it was his job to inform Parkridge of that but did not do so.

23. In his re-examination by Mr Houweling, Mr Pippin agreed he obtained a quote in writing for the landscaping.

24. In his re-examination by Mr Clavey, Mr Pippin said he was not notified by JW Cross that the sweeping of the road and tarping of the stockpiles was going to result in a claim for additional works.

25. Prior to dealing with the situation in November/December 2012, Mr Pippin had no prior experience in relation to the management and removal of asbestos from a site.  He had no discussions with any contractors before speaking to Mr Roberts on 7 December 2012 in relation to the management and removal of asbestos-contaminated material from a site.  It was the first occasion upon which he was confronted with potential contaminated material needing to be removed from a development site.  He understood asbestos material was deposited at a separate location within a rubbish tip as he had seen a sign to that effect.

Legal principles

Agency

1. Agency connotes an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties: International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644, 652.

2. It is necessary for the principal and agent to consent to the relationship of agency: Damevski v Giudice (2003) 133 FCR 438, 146 citing with approval the observation of Lord Pearson at 1137 in Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130, 1137:

   The relationship of principal and agent can only be established by the consent of the principal and the agent.  They will be held to have consented if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it … But the consent must have been given by each of them, either expressly or by implication from their words and conduct.  Primarily one looks to what they said and did at the time of the alleged creation of the agency.  Earlier words and conduct may afford evidence of a course of dealing in existence at that time and may be taken into account more generally as historical background.  Later words and conduct may have some bearing, though likely to be less important.

An estimate or a fixed quote

1. An estimate is a calculated guess at how much a job will cost all other things being equal.  A quote is a calculation of what price a person is prepared to do a particular job for:  Hayward v Timility [2009] NSWDC 54 [43]; Kyren Pty Ltd v Built Projects Pty Ltd [2006] SASC 204 [18]; Manfate Pty Ltd v Krahe & Krahe(No 1) [2016] NSWDC 70 [13] – [15].

A concluded agreement or contract

1. It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement.  Commercial discussions are often too unrefined to fit easily into the slots of 'offer', 'acceptance', 'consideration' and 'intention to create a legal relationship' which are the benchmarks of the contract of classical theory.  In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97,326; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 [74].

2. A contract may be inferred from the acts and conduct of parties as well as or in the absence of their words.  The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement.  The conduct of the parties, however, must be capable of proving all the essential elements of an express contract: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd 11,117; Brambles Holdings Ltd v Bathurst City Council [77]; Palermo v Palermo [2015] WASCA 49 [184].

3. In such a case, the 'acid test' is 'whether viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain': Meates v Attorney-General [1983] NZLR 308, 377, referred to with approval in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32, 82, Brambles Holdings Ltd v Bathurst [75]; Palermo v Palermo [186].

4. For a term to be implied into a contract the following conditions (which may overlap) must be satisfied:

   (a)it must be reasonable and equitable;

   (b)it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

   (c)it must be so obvious that 'it goes without saying';

   (d)it must be capable of clear expression;

   (e)it must not contradict any express term of the contract: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] 180 CLR 266, 282 ‑ 283, referred to with approval in Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] 149 CLR 337 347.

Findings

Were the stockpiles contaminated with asbestos material?

1. In its amended defence Parkridge denied 'the stockpile was contaminated' with asbestos material.  In his closing submissions Mr Houweling maintained there was no evidence the stockpiles were contaminated with asbestos material.  There was no evidence that any material taken as samples from the stockpiles was tested or analysed for asbestos.  There was something suspicious about the piece of suspected asbestos contaminated material that had been 'removed from the stockpile and purposefully placed on a limestone block' that Mr Pippin said he and Mr Roberts observed when inspecting the stockpiles.  Mr Pippin had been shown that piece of suspected asbestos contaminated material by Mr Sorfleet the day before, after Mr Batt visited the site.

2. In my view there was compelling evidence that on 7 December 2012 the original stockpile and the secondary stockpile were contaminated with some asbestos contaminated material as follows.

   (a)Mr Batt, the Shire's manager of environment and emergency, inspected both stockpiles on 6 December 2012 and found a small quantity of fragments that he suspected were asbestos.  He took samples from the secondary stockpile, although he did not have them analysed.  Later that day, by email to Mr Pippin, Mr Batt confirmed his suspicion that the stockpiles may contain a small amount of contaminated material that was possibly asbestos or asbestos-containing material.

   (b)Mr Pippin, the civil engineer who claimed to have no prior experience in the management and removal of asbestos, although his resume stated he had training in 'acid sulphate soils and contaminated sites', responded to Mr Batt by email advising of his site visits on 6 and 7 December 2012 and stating '[he] also felt the [suspected asbestos contaminated] material may have been asbestos'.

   (c)Mr Roberts, who held a restricted asbestos licence issued by WorkSafe which enabled him to supervise the removal of asbestos and the transport of asbestos, considered both stockpiles were contaminated with asbestos material when he inspected them on 7 December 2012 with Mr Pippin.  He saw corrugated sheets and flat sheets of asbestos.  Prior to that date he transported asbestos on average once a week for 12 months.

   (d)Mr Campbell, the asbestos assessor whose business specialised in asbestos contaminated sites, observed asbestos in the digital photographs and the video recording of the stockpiles that he examined.  His evidence, that if the stockpiles contained suspected asbestos contaminated material they were deemed to be contaminated unless proven otherwise, was not challenged.

   (e)There was no expert evidence to contradict Mr Campbell's evidence.

3. On the totality of the evidence, I find that on 7 December 2012 the original stockpile and the secondary stockpile were contaminated with some asbestos contaminated material.

Was Mr Pippin an agent for Parkridge?

1. It was not in dispute between JW Cross and Parkridge that MPM was Parkridge's agent for the removal and disposal of the stockpiles.

2. In MPM's Amended Defence to Parkridge's statement of claim in the third party proceedings, MPM denied that MPM was Parkridge's 'duly authorised agent in relation to the development' but MPM possessed limited authority to attend to the arrangements to remove and dispose of the stockpiles.

3. In his closing submissions, Mr Clavey submitted that when Mr Saulsman gave '[the] instruction on 7 December 2012 to Mr Pippin to tell JW Cross to proceed with the removal of the stockpiles' and JW Cross received that instruction via Mr Pippin later that day, only then 'did Mr Saulsman confer authority in Mr Pippin to create a legal relationship between Parkridge and JW Cross as agent.  Until that point, Mr Pippin merely gathered information for Mr Saulsman to consider, he had no authority to contract for Parkridge'.

4. In my view nothing turns on this submission as there was no dispute between any of the parties that on 7 December 2012, Mr Pippin on behalf of MPM, was clearly Parkridge's agent in authorising Mr Roberts on behalf of JW Cross, to remove and dispose of the stockpiles.

5. It is unnecessary in my view, for the reasons that follow, to determine whether or not that agency arose pursuant to the Engineering Services Proposal.

An estimate or a fixed quote?

1. There was no written estimate or quote for the removal and disposal of the stockpiles and the cost of doing so.

2. JW Cross contends Mr Roberts gave Mr Pippin an oral estimate of the cost to remove and dispose of the stockpiles that did not include the tipping fees that would be incurred.  In doing so, Mr Roberts did not provide Mr Pippin with a fixed price or quotation to carry out the work.

3. Parkridge contends Mr Roberts gave Mr Pippin an oral quotation of $16,000 to remove and dispose of the stockpiles.

4. The resolution of the issues between the parties at trial turns on what was discussed by Mr Roberts and Mr Pippin at their site meeting on 7 December 2012 and whether an oral agreement was formed between JW Cross and Parkridge to remove and dispose of the stockpiles for a fixed price of $16,000; or for a price which would be calculated in accordance with JW Cross' usual charges; or to be charged on a reasonable fee basis.

5. I accept Mr Curwood's submission that there was a degree of commonality in Mr Roberts evidence and Mr Pippin's evidence as to what was discussed whilst inspecting the stockpiles.  They were there for a relatively short period of time.  Mr Roberts estimated approximately half an hour whereas Mr Pippin gave no evidence of the duration.  They largely agreed on the following issues:

   (a)They inspected the original stockpile and the secondary stockpile.  There was a difference between them as to how they went from the original stockpile to the secondary stockpile.  Mr Roberts said they walked.  Mr Pippin said they travelled in his car.

   (b)Mr Roberts identified asbestos contaminated material.  Mr Roberts said it was in both stockpiles.  Mr Pippin said Mr Roberts identified asbestos contaminated material in the original stockpile.

   (c)Mr Roberts said both stockpiles would have to be removed.

   (d)A question was asked about whether JW Cross could do the work and how soon they could start.  Mr Roberts said that JW Cross could shift the stockpiles and they could start straight away.

   (e)Mr Roberts said a management plan would have to be prepared.  Mr Pippin initially said that the management plan had to be prepared for the Shire only but after reading his email requesting Mr Roberts to proceed with the works he acknowledged the management plan was also sent to WorkSafe.

6. I accept also Mr Curwood's submission that two important differences emerge between the two versions of events.  Those differences relate to discussions about the following issues:

   (a)How and what JW Cross would charge for removing the stockpiles.

   (b)Where the stockpiles would be taken to or removed to.

7. Mr Roberts gave evidence on these issues as follows.

   (a)Mr Pippin asked, 'How would we go about moving it?'  He said, 'We could probably put an excavator on top and supply some trucks'.  They then discussed quantities.  Mr Pippin asked, 'how much quantity was there?'  He said, 'Probably about 2,000 tonne in the first pile'.  Mr Pippin asked for an estimation of costs.  They then worked out rough time schedules and rough prices on the basis that 'it would probably take three or four days to shift it' using a 20-tonne excavator for a day at $140 an hour and running three to four trucks a day at $110 per hour (per truck) based on a 15 minutes fill-time, working on tonnages of 13 tonne per truck.  He told Mr Pippin it would cost 'roughly $16,000 to move it'.  He and Mr Pippin 'got the figure of 16 to 18,000'.  He explained in his evidence that they were 'pretty blasé figures' because it was a discussion on the side of the road and 'to come to a firm price [he would] have to survey the quantities and work out the cubic metres of [his] trucks'.

   (b)Mr Pippin asked, 'Where would it go?'  He said, 'To Stanley Road'.  Mr Pippin said, 'Peel?'  He replied, 'Yes'.

8. Mr Pippin gave evidence on these issues as follows.

   (a)He asked 'roughly how long it would take to do the works' but did not recall getting an answer from Mr Roberts.  Mr Roberts asked 'if APH would have the sub-base material in for the roads to allow their trucks to get to the stockpile'.  He 'advised he would get back to Mr Roberts on that because he would need to contact APH and work out where they were at with their programming'.  He asked, 'what's this going to cost to do what you've said has to be done (as in remove the stockpiles)'.  Mr Roberts paused for about 30 seconds to a minute before he said $16,000.  He said, 'Are you sure that that's all it's going to cost?'  Mr Roberts said, 'Yes, that's what it's going to cost'.  He said he would get back to Mr Roberts about the sub-base.

   (b)Mr Roberts indicated that he would try and take the material to Boyanup Picton Road.

9. I prefer Mr Roberts' evidence to Mr Pippin's evidence on the material differences to their discussions for the following reasons.

   (a)Mr Roberts' evidence about the type of equipment JW Cross would use, apart from the small front-end loader, was supported by his entry against the heading 'Equipment Used'  in the draft WorkSafe Subbypack: '25‑tonne excavator, 2 x eight wheel trucks with tarps'.  I note that six‑wheeler trucks were used and charged at a lower hourly rate than for an eight-wheeler truck.  An eight‑wheeler truck was used once.

   (b)Mr Roberts' evidence that he told Mr Pippin it would cost 'roughly $16,000 to move it' was consistent with Mr Pippin's evidence that APH Contractors had quoted an amount of $16,000 within its schedule of prices to relocate the original stockpile to within 750 m of the site, but it was his assessment at the time, that there would be additional cost to move the original stockpile off-site.  On 30 October 2012 Mr Pippin emailed Mr Saulsman stating 'the current APH contract would include relocating the stockpile.  However, the removal of the stockpile from site would be additional cost'.

   (c)Mr Roberts' evidence that he told Mr Pippin it would cost 'roughly $16,000 to move it' was consistent with Mr Saulsman's evidence that that if JW Cross was asked to remove stockpiles that contained asbestos‑contaminated materials and JW Cross gave a price of $16,000 all-inclusive, 'if it was contaminated material [he] would be concerned that the price was wrong'.  By letter dated 30 July 2013 Mr Saulsman wrote to JW Cross noting 'from your invoice, it appears that you were incorrect in assuming that this material was contaminated with asbestos.  If the dirt was contaminated with asbestos we would have immediately asked you to check your quote of $16,000 as there would have obviously been a mistake'.

   (d)Mr Roberts' evidence about where the stockpiles would be taken to or removed to was supported by his entry against the heading 'Activity' in the draft WorkSafe Subbypack: 'Remove contaminated spoil of [site] to lienced [sic] facility'.

   (e)Mr Roberts' evidence that the stockpiles would be taken to a licenced facility was supported by other documentary evidence in the form of daily time sheets for JW Cross drivers, ledgers completed by JW Cross drivers upon arrival at the licenced tipping facility which recorded the tonnage of each load tipped and invoices for tipping fees rendered on a daily basis by Peel Resource Recovery to JW Cross.

   (f)Mr Roberts' evidence about which licenced tipping facility the stockpiles would be taken to or removed to was supported by his entries in the draft WorkSafe Subbypack.  Against the heading 'Storage and disposal' he entered 'Not to be stored on site, disposal at Australind Sand Supplies #L7060-1997-11'.  Mr Pippin gave evidence that he understood Australind Sand Supplies was the licenced tipping facility at Peel Resource Recovery in Stanley Road in Australind.  Against the heading 'Disposal of waste' Mr Roberts entered 'ACM (asbestos contaminated material) not to be stored on site, disposal at Australind Sand Supplies #L7060‑1997-11'. Against the heading 'Disposal of PPE (personal protective equipment)' he entered 'disposal at Australind Sand Supplies #L7060-1997-11'.

   (g)Mr Pippin's evidence that the stockpiles would be taken to JW Cross's subdivision at Boyanup Picton Road made no sense.  As the stockpiles contained suspected asbestos contaminated materials, taking that material to another subdivision would create removal and disposal issues for that development.  He claimed Mr Roberts was in effect telling [him] on site on 7 December 2012 that '[Mr Roberts was] going to take potential asbestos‑contaminated material, which is Parkridge's problem, and take it to his own site and make it his problem'.  I note Mr Roberts gave evidence about some loads that were taken to JW Cross's subdivision at Boyanup Picton Road, but he explained that occurred because the Stanley Road licensed tipping facility was closed and these loads were subsequently taken on a different date to Stanley Road when the licensed tipping facility was open.

   (h)Mr Pippin's evidence that the stockpiles would be taken to JW Cross's subdivision at Boyanup Picton Road rather than Peel Resource Recovery's licenced tipping facility in Stanley Road in Australind, did not accord with his evidence that when he received the draft Worksafe Subbypack he reviewed it briefly.  On 11 December 2012 at 9:11 am Mr Roberts emailed the draft Worksafe Subbypack asking Mr Pippin to read it before he submitted it to the Shire.  He responded by email at 9:49 am 'looks good to me, although I have never done one before'.  When asked about the last page of the draft Worksafe Subbypack on which there were three references to 'disposal at Australind Sand Supplies he said '[he] probably didn't read it through'.  A brief review of the draft Worksafe Subbypack would have revealed four entries that indicated the stockpiles would be taken to and disposed of at a licenced tipping facility. 

   (i)Mr Roberts' evidence that where quotes were given for fixed prices they were given in writing on the basis of an exact confirmation was supported by Ms Brooks' evidence that that JW Cross did give fixed quotes.  When that occurred she received a document in writing from Mr Roberts as to what the quote was and she entered it into the accounting records for invoicing.

   (j)Mr Roberts gave careful and considered answers and his evidence appeared more reliable.  Mr Pippin appeared to have difficulty on occasions with his recollection and his evidence lacked detail.

10. On the totality of this evidence, Mr Roberts' evidence that he told Mr Pippin it would cost 'roughly $16,000 to move it' because he would give a quote with a scope of works sounded plausible.  He explained that a scope of works was a detailed request of what to do, where a surveyor had measured the cubic metres of the material so that exact figures could be used to calculate the quote.  His quote was always written on paper and the scope of works was always written on paper.  He calculated his stated price based on the machinery rate and the volume of material to be moved that was written on the scope of works.  If there was no written scope of works, it was only an estimate because there was no guarantee as to 'how much dirt is sitting in front of [him]'.  On the other hand, Mr Pippin's evidence that he was confirming a fixed quote of $16,000 by his email to Mr Roberts seemed less plausible: 'As per our meeting today can you please proceed with lodgement of the required documentation for the removal of the unsuitable stockpiles on [the site of the subdivision] …'.

11. I am satisfied Mr Roberts made a genuine mistake in his calculations.  Prior to 7 December 2012 he had been estimating jobs for 12 months and he had quoted probably three similar size jobs.  He had received on‑the‑job training for estimating and quoting jobs.  I accept the explanation in Mr Roberts' evidence that the discrepancy between what he told Mr Pippin would be the number of trucks required to move effectively 4,000 tonnes of soil compared to the number of trucks actually required was because he made a mistake on the estimate of the quantity; 'There was no scope of work.  Hence there was no quote.  Hence, [he] didn't have a firm figure on the quantity of dirt to move'.  The estimate arose from an error in the quantities and calculations.

12. I find Mr Roberts gave Mr Pippin an oral estimate of the cost to remove and dispose of the stockpiles that did not include the tipping fees that would be incurred.  In doing so, Mr Roberts did not provide Mr Pippin with a fixed price or quotation to carry out the work.

A concluded agreement or contract

Implied term of concluded agreement or contract

1. As there was no written contract between JW Cross and Parkridge to remove and dispose of the stockpiles and the cost of doing so, Mr Curwood submitted that viewed as a whole and objectively from the point of view of reasonable business persons, what was said between Mr Roberts and Mr Pippin on 7 December 2012, the email Mr Roberts received later that day from Mr Pippin stating, inter alia, 'As per our meeting today can you please proceed with lodgement of the required documentation for the removal of the unsuitable stockpiles …' and the carrying out of the work by JW Cross shows that there was a concluded oral agreement for JW Cross to carry out the work and to charge Parkridge its usual charges for the use of its equipment and any tipping fees reasonably incurred in disposing of the waste material comprising the stockpiles.

2. Mr Clavey submitted that

   on a claim for a reasonable market sum or a quantum meruit, the plaintiff bears the onus of proving that the amount claimed is a sum which reflects a reasonable market rate.  Merely tendering documents that record rates or charges or sums which it was charged by others to perform the work is not evidence of a reasonable market rate.  Such documents merely prove what the plaintiff charged and or a cost occasioned to the plaintiff.  It is necessary in such a claim to adduce evidence of the reasonable market price for the cost of performing the work.

3. Mr Clavey also submitted that 'JW Cross did not adduce any independent evidence or any evidence of a reasonable market rate for its service or for the tipping fees it was charged by its related entity, Peel Resource (Recovery) …'.

4. Firstly, for the reasons stated in [122] – [125] I am satisfied that there was a concluded oral agreement for JW Cross to carry out the work and to charge Parkridge its usual charges for the use of JW Cross's equipment in removing and disposing of the waste material comprising the stockpiles.  In the circumstances, I do not accept the submission by Mr Clavey that JW Cross was required to adduce 'any evidence of a reasonable market rate for its service'.

5. Secondly, there was evidence from Mr Cross of Peel Resource Recovery that its Schedule of Rates for the tipping facility included rates for smaller quantities (for example, asbestos being $50 per cubic metre), but larger quantities received a lesser price at the gate.  As to the rate of $25 per tonne, he gave evidence that 'it's industry standards.  It's most probably a bit cheaper than industry standards'.  The Peel Resource Recovery Schedule of Rates was explicit in its terms.  I do not attach much weight to Mr Cross's evidence, which was elicited under cross‑examination by Mr Houweling, that in preparation for the case his secretary had found and given to him the Shire of Harvey's Schedule of Rates for 2012 for its tip.  The Shire of Harvey's tipping fees were higher than Peel Resource Recovery's Schedule of Rates.  He also said that generally Peel Resource Recovery was cheaper in its tipping fees than the Shire's tips.  I note that JW Cross and Peel Resource Recovery were family businesses involving four brothers.

1. For the reasons stated in [122] – [125], [129] and [130] I am satisfied that there was a concluded oral agreement for JW Cross to carry out the work and to charge Parkridge its usual charges for the use of its equipment and any tipping fees reasonably incurred in disposing of the waste material comprising the stockpiles.

2. I find the parties expressly contemplated the following terms of their oral agreement:

   (a)JW Cross would perform the work using an excavator and trucks.

   (b)JW Cross would charge its usual hourly rates for the use of its equipment in accordance with its schedule of rates.

   (c)The stockpiles would be removed to and disposed at a licensed waste disposal facility.

3. I find the parties contemplated the following implied terms of their oral agreement:

   (a)If JW Cross performed any of the work using any equipment other than an excavator and trucks then that equipment would be charged at JW Cross's usual hourly rates for the use of that equipment in accordance with its schedule of rates.

   (b)Parkridge would pay any tipping fees reasonably incurred by JW Cross in disposing of the waste material comprising the stockpiles in accordance with the licenced tipping facility's schedule of rates.

Loss and damage

1. If JW Cross was entitled to be paid on its usual hourly rates basis and the tipping fees were reasonable charges, has Parkridge suffered any loss or damage?

2. In my view Parkridge has not suffered any loss or damage for the following reasons:

   (a)Parkridge was required to remove the stockpiles on its subdivision so as not to be classified as a contaminated site. 

   (b)JW Cross disposed of 5,608 tonnes of waste material from the stockpiles on Parkridge's subdivision.

   (c)The stockpiles were moved and disposed of expeditiously during the period shortly before and after Christmas and the New Year as requested by Parkridge.

   (d)The subdivision lots upon which the original stockpile was situated could be progressed by Parkridge for the next stage of the development.

   (e)JW Cross undertook the work for the number of hours contended in its invoice.  Neither Mr Houweling for Parkridge nor Mr Clavey for MPM disputed Ms Brooks' evidence as to how she prepared and calculated the invoice.

   (f)There was no evidence lead by Parkridge to indicate that the usual hourly rates charged by JW Cross for the removal and disposal of the stockpiles were unreasonable or that someone could have done that cheaper.  I accept the closing submission by Mr Curwood for JW Cross that Mr Campbell's evidence

   about other options being available including screening and raking … are false issues and not relevant to the determination of the claim.  On no case put forward was [JW Cross] ever asked to advise on other options.  Whether [Parkridge] had other options for disposal is also irrelevant unless there is found to be a claim that can be made for misleading or deceptive conduct or that there is a specific representation made by Mr Roberts which was relied upon.

   (g)There was no evidence lead by Parkridge to say that Parkridge could have disposed of the stockpiles somewhere else cheaper.  Peel Resource Recovery's usual rate for asbestos was $25 per tonne.  Although Mr Campbell said the stockpiles could be screened and raked, he explained in his cross-examination by Mr Houweling that it would be very laborious.  He would not recommend picking through a stockpile of approximately 4,000 tonnes; 'it would be cost ineffective compared to tipping, to manually pick through it'.  He estimated that physically screening the stockpile would cost somewhere between $45,000 to $50,000 plus tipping fees.  Having regard to what he observed he would not advise screening because there were too many different pieces within it.  In his cross-examination by Mr Clavey, Mr Campbell explained that it was not a viable option to break open the stockpile and remove the building rubble and asbestos fragments.  The default position, especially on development sites for most developers and consultants, was to take away the asbestos contaminated material.  When shown a photograph of the original stockpile he accepted it could be screened.  When shown a photograph of the secondary stockpile he accepted screening was 'possible but painful'.

   (h)If $215,976.49 is what JW Cross took to remove and dispose of the stockpiles, with its usual and reasonable rates which were competitive with other competitors in the industry, then that is what ultimately Parkridge would have paid someone else to remove and dispose of the stockpiles.

3. In my view, if JW Cross was entitled to be paid on its usual hourly rates basis and the tipping fees were reasonable charges, then Mr Roberts has not made any representation on behalf of JW Cross to Parkridge which was misleading or deceptive or likely to mislead or deceive, or which could give rise to an estoppel.

Parkridge's claim against MPM

Loss and damage attributable to Mr Pippin

Indemnity by MPM

1. Parkridge contends the Engineering Services Proposal contained implied terms that MPM would perform work under Parkridge's control and on Parkridge's behalf to manage the development; MPM would exercise the standard of care, skill and diligence in its professional services normally provided by a project manager in the performance of the same or similar services;  MPM would negotiate, on behalf of Parkridge, with contractors and third parties;  MPM would confirm all quotes and commercial arrangements in writing and ensure that all quotes and commercial arrangements were approved and signed off by Parkridge;  MPM would observe [the] level of care and diligence in conducting Parkridge's business as Parkridge would reasonably have displayed if it carried out the development itself; and MPM must follow Parkridge's proper instructions.

2. Alternatively, Parkridge contends an agency relationship is implied from the conduct of Parkridge in engaging MPM to provide engineering services in relation to the development and the conduct of MPM in project managing the development, by liaising with the third parties, and entering into contracts on behalf of Parkridge.

3. In his closing submissions, Mr Houweling submitted the following.

   (a)As a consequence of Mr Pippin's breach of contract, breach of agency or negligence, Parkridge has incurred costs in defending JW Cross's claim and has been exposed to a claim for greater than the fixed quote.  This loss and damage would have been avoided but for Mr Pippin's omission to confirm the fixed quote in writing.

   (b)It was reasonably foreseeable that if Mr Pippin did not obtain proper quotes and confirm quotes in writing, disputes may arise under an oral contract.

   (c)In all the circumstances, a reasonable person in Mr Pippin's position would have recorded the quote in writing to limit the potential for disputes to arise under the fixed price contract.

4. In my view, if JW Cross was entitled to be paid on its usual hourly rates basis and the tipping fees were reasonable charges, then Parkridge has not suffered any loss or damage attributable to Mr Pippin by reason of breach of contract, breach of agency or negligence.  Accordingly, it is unnecessary to make findings with respect to the following issues:

   (a)Whether Mr Pippin was required by Mr Saulsman to formalise Parkridge's arrangements with JW Cross in writing.

   (b)Whether Mr Pippin breached his duty of care to Parkridge by failing to confirm JW Cross' quoted or estimated price in writing.

   (c)If there was a want of care on the part of MPM occasioning Parkridge's loss, whether that loss was contributed to by Mr Saulsman's want of care attributable to Parkridge by failing to take any steps to confirm that Parkridge's contractual arrangements with JW Cross were subject to some form of written contract.

   (d)Whether Parkridge has failed to mitigate any damage it suffered by failing to counterclaim against JW Cross for misleading and deceptive conduct.

Conclusion

1. I allow JW Cross's claim against Parkridge.  I dismiss Parkridge's claim against MPM.