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P Ward v Civil and Civic

P Ward v Civil and Civic

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Case Copied 3 August 1999 258 min read

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CITATION: P Ward v Civil and Civic [1999] NSWSC 727

CURRENT JURISDICTION: Equity Division, Construction List

FILE NUMBER(S): 55062/97

HEARING DATE(S): 22,23,24,25,28,29,30 June 1999, 1 July 1999

JUDGMENT DATE:
3 August 1999

PARTIES :

P. Ward Civil Engineering Pty Limited (Plaintiff)
Lend Lease Property Services Pty Limited (formerly known as Civil and Civic Pty Limited) (Defendant)

JUDGMENT OF: Einstein J

COUNSEL : B.W. Walker SC and S.A. Kerr (for Plaintiff)
S.G. Finch SC and M.R. Gracie (Defendant)

SOLICITORS: Tress Cocks & Maddox (Plaintiff)
Freehill Hollingdale & Page (Defendant)

CATCHWORDS: CONTRACT - Subcontract to perform earthworks for the construction of water filtration plant - Plaintiff tenderer invited to prepare a Target Guaranteed Maximum Price (TGMP) proposal and to participate in design development process - TGMP if acceptable to be confirmed as a lump sum Guaranteed Maximum Price (GMP) - Plaintiff accepts TGMP of $16.7M on 17 November 1993 - GMP contract for $16.7M executed 18 May 1994 - Whether plaintiff to bear risk of design development up to and/or after finalisation of GMP - Whether agreement entered into as at 17 November 1993 or as at 18 May 1994; CONTRACT - Construction - 'Variations' clause - 'Design Development' clause - Whether clause dealing with risk of design development to be read as relating to design development variations 'within' or 'without' scope of works.; TRADE PRACTICES - Misleading or deceptive conduct - Whether duty to disclose terms of contract where they differ from the pro forma contract included with invitation to tender - Silence as misleading or deceptive conduct; TRADE PRACTICES - Remedies - Variation - Rescission - Rectification; NEGLIGENCE - Partnering agreement - Relationship of trust and confidence - Whether defendant negligent in circumstances giving rise to execution of Subcontract - whether defendant required to draw plaintiff's attention to terms of Subcontract proferred for exeuction including scope of works to be included in Subcontract - Importance of treating a formal contract particularly in a commercial context as the final and full expression of agreement between the parties ; CONTRACT - Rescission - Rectification - Unilateral mistake - Whether mistaken belief of plaintiff that scope of works fixed at November 1993 agreement - Whether mistaken belief of plaintiff as to duration of period when it was exposed to risk of design development - Whether defendant aware of the plaintiff's mistake - Whether unconscionable for the defendant to insist on the terms of the contract - Carelessness of the plaintiff in failing to read the contract - Whether negligent misstatement; ESTOPPEL - Whether the defendant estopped from insisting on the terms of the contract.

ACTS CITED: Trade Practices Act 1974 (Cth) ss52, 87(1), 87(2)(b)

CASES CITED: Agip S.p.A. v Navigazione Alta Italia S.p.A. [1984] 1 Lloyd’s Rep 353
Asea Brown Boveri Pty Ltd v Burns Philp Trustee Co Ltd (Unreported, Supreme Court of NSW, 23 April 1990, Giles J)
United Dominions Corporation Ltd v Brian Pty Ltd (1984-85) 157 CLR 1
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 727
Decision Date: 3 August 1999

CaseChat Overview and Summary

The case involved P Ward, a subcontractor, and Civil and Civic, a construction company, with a dispute over a subcontract for earthworks at a water filtration plant. The plaintiff, P Ward, was invited to submit a tender with a Target Guaranteed Maximum Price (TGMP) and participate in the design development process. The TGMP, once accepted, was to be confirmed as a lump sum Guaranteed Maximum Price (GMP). P Ward accepted the TGMP of $16.7 million on 17 November 1993, and a GMP contract for the same amount was executed on 18 May 1994. The central issues revolved around whether P Ward was to bear the risk of design development prior to and after the finalisation of the GMP, and whether the agreement was finalised on 17 November 1993 or 18 May 1994. Additionally, the court examined whether there was misleading or deceptive conduct by Civil and Civic in not disclosing contract terms that differed from the pro forma contract included with the invitation to tender, and if silence constituted misleading or deceptive conduct. The court also considered whether Civil and Civic was negligent in not drawing P Ward's attention to the terms of the subcontract, particularly regarding the scope of works.

The court held that the terms of the subcontract were not finalised until 18 May 1994, and therefore P Ward bore the risk of design development up until and after that date. The court found that Civil and Civic did not engage in misleading or deceptive conduct, as there was no duty to disclose contract terms differing from the pro forma contract. The court rejected the claim of negligent misstatement, holding that Civil and Civic was not required to draw P Ward's attention to the terms of the subcontract. The court also found that P Ward was not entitled to relief on the basis of unilateral mistake or rectification, as P Ward was careless in not reading the contract and the mistake was not due to any fault of Civil and Civic. The court further held that Civil and Civic was not estopped from enforcing the terms of the contract.

The court ruled in favour of Civil and Civic, dismissing P Ward's claims for rescission, rectification, and damages for misleading or deceptive conduct, negligent misstatement, and estoppel. The final orders of the court were that P Ward bear its own costs of the proceedings.

Orders