Ralmana Pty Ltd v BGC Contracting Pty Ltd [No 2] - [2017] WASC 373

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RALMANA PTY LTD -v- BGC CONTRACTING PTY LTD [No 2] [2017] WASC 373

CORAM: KENNETH MARTIN J

HEARD: 10 NOVEMBER 2017

DELIVERED : 20 DECEMBER 2017

FILE NO/S: CIV 1156 of 2015
CIV 2434 of 2015
Consolidated by Orders dated 24 September 2015

BETWEEN: RALMANA PTY LTD
Plaintiff
AND
BGC CONTRACTING PTY LTD
First Defendant
JOHN BEATTIE
Second Defendant

Catchwords:

Practice and procedure - Pleadings - Project development - Earthworks - Strikeout applications by defendant - Case management of large construction dispute - Fundamental problems - Turns on own facts

Legislation:

Nil

Result:

Strikeout orders issued

Category: B

Representation:

Counsel:

Plaintiff:     Mr G R Ritter QC & Mr C B Sullivan
First Defendant              :     Mr M G Lundberg & Ms D J Osborn
Second Defendant         :     Mr M G Lundberg & Ms D J Osborn

Solicitors:

Plaintiff:     HopgoodGanim
First Defendant              :     King & Wood Mallesons
Second Defendant         :     King & Wood Mallesons

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

Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30; (2012) 247 CLR 205
Bell Group Ltd (in liq) v Westpac Banking Corp [No 9] [2008] WASC 239; (2008) 39 WAR 1
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Hoyt's Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; (2016) 258 CLR 525
Ralmana Pty Ltd v BGC Contracting Pty Ltd [2016] WASC 131
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [No 2] [2012] WASCA 53; (2012) 287 ALR 360
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
KENNETH MARTIN J:

Introduction

I am dealing with three distinct interlocutory applications concerning pleadings and amendment issues in this action.
Two of the applications are advanced by the defendants, BGC Contracting Pty Ltd (BGC) and Mr John Beattie, under amended chamber summonses of 6 November 2017 (both amended by leave under my orders of 24 October 2017).
The first chamber summons is brought by the defendants collectively. By their chamber summons, the defendants challenge multiple paragraphs of the plaintiff's, Ralmana Pty Ltd (RJV), fourth further substituted amended statement of claim filed 1 November 2017, which is the current substituted statement of claim (CSSOC).
The second chamber summons is brought by BGC only, dated 6 November 2017. This chamber summons seeks to strike out various paragraphs of RJV's Reply pleading to the defendants' defence and amended defence to counterclaim, filed 1 November 2017 (amended defence to counterclaim).
The two chamber summonses challenge paragraphs within the CSSOC and amended defence to counterclaim by invoking all subparagraphs of O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC). The legal principles applicable to such interlocutory pleading challenges are too well known to bear repeating yet again.
A third application is advanced by RJV under its chamber summons of 1 November 2017. Under that chamber summons, RJV seeks leave to further amend its writ of summons by a proposed amended indorsement (concerning representation) found in the affidavit of Samantha Jayne Hotton filed in support of RJV's application.
It was accepted at the hearing that the fate of RJV's application for leave to further amend its writ ought to be assessed by reference to the fate of the defendants' challenges against RJV's representation pleas which are impugned under the first chamber summons of the defendants. RJV's representation pleas can be found as pars 6AA and 6A within RJV's CSSOC.
As the defendants point out, this is the thirteenth iteration of a statement of claim in this action ‑ which regrettably has not proceeded past its pleading stages notwithstanding that it was commenced in 2015 (see the defendants' consolidated outline of submissions in support of strike out applications, filed 7 November 2017 (defendants' consolidated submissions, par 5).
In order to understand the defendants' pleading challenges, some background facts and key dates are very significant to notice at the outset. I will collect in a brief summary of events those core background details below.

A brief summary of events

The context of this dispute concerns the Roy Hill iron ore mining project in the proximity of Newman in north-west Western Australia. A party referred to as the principal, namely, Roy Hill Holdings Pty Ltd, was seeking to establish an iron ore mine heavy haul railway and port facilities at this location. To that end, the principal engaged Samsung C&T Corporation (Samsung) under a head contract that was for Samsung to design and construct the iron ore mine heavy haul railway and port facilities. That engagement in turn led to Samsung itself engaging BGC under an agreement to perform various works as required by Samsung under its head contract (the BGC Agreement).
BGC then duly invited RJV to tender for the performance of earthworks. That was under an invitation to tender of 2 October 2013 (see CSSOC, par 6).
RJV subsequently submitted written quotations and proposals to BGC for it to carry out the earthworks. That was after a meeting with BGC's representatives on 9 October 2013.
RJV's first tender submitted a quote in the amount of $44.98 million. It later submitted a second tender by a letter of 28 October 2013 - now quoting a higher amount of $45.83 million and with a slightly different provision for preliminaries including the cost of a surveyor and a Health, Safety and Environment representative.
On 8 November 2013 BGC advised RJV of BGC's intention to enter into an agreement with RJV for the performance of the bulk earthworks under a letter of intent.
On 18 November 2013 RJV submitted a revised tender in the amount of $45.831 million with a similar provision for preliminary works.
Ultimately, BGC and RJV entered an agreed written subcontract of 13 December 2013 (the subcontract). As is typical, it contained various assembled components, including:
(a)a formal instrument of agreement;
(b)the General Conditions of subcontract;
(c)a scope of works to be carried out by BGC;
(d)a scope of works for the subcontractor;
(e)contractor's project documents; and
(f)a revised BGC programme (CSSOC, par 12).
As may be seen from this summary, largely taken from RJV's CSSOC, the timespan between the initial invitation to tender issued by BGC at 2 October 2013 and the ultimate consummation of a formal contract of the subcontract at 13 December 2013 ‑ was just over two months.
Issues then arose over performance or non‑performance of the subcontract as between BGC and RJV involving diverse allegations and counter‑allegations of breaches, delays, site access problems and the like. Ultimately, BGC terminated the subcontract with RJV.
On 12 May 2015, BGC issued RJV a notice under cl 39 of the General Conditions of subcontract for RJV to show cause why BGC should not exercise powers under sub‑condition 39.4.
There is a dispute over whether BGC was entitled to give that notice. On 18 February 2015 and again on 12 March 2015, RJV informed BGC that it intended to demobilise from site on 24 March 2015.
RJV then demobilised its workforce on 24 March 2015.
On 2 July 2015 BGC purported to exercise rights under cl 39.4A of the General Conditions to take over part of the works under subcontract (WUSC) and to suspend all payments to RJV until that work had been completed.
RJV contends that BGC was not entitled to exercise rights under cl 39.4A of the General Conditions, or that BGC acted unreasonably in doing that and, further, says that BGC's conduct in all the circumstances amounted to a repudiation of the subcontract which RJV accepted on 10 July 2015.
Under prayers for relief seen in the CSSOC, RJV seeks damages, from BGC expressed as direct delay costs in an amount of $33,045,965.35 (excluding GST) as at 27 July 2015 and which damages it claims are still ongoing (par 32).
RJV also claims that BGC wrongly called up two unconditional bonds it had provided in an aggregate amount of $4,583,158.44 - when they were not properly payable and for which RJV claims repayment (CSSOC, pars 42 ‑ 45).
Needless to say, BGC resists all RJV's claims. RJV rejects BGC's counterclaims as seen for liquidated damages.
I turn first to address BGC's challenges put against RJV's amended defence to counterclaim. The interlocutory challenges advanced under BGC's second chamber summons are easier to deal with at the outset, as deficiencies in this pleading were effectively accepted during the course of argument by senior counsel for RJV at the hearing.

BGC's challenges against RJV's amended defence to counterclaim

By its chamber summons, BGC challenges pars 30(b), 30(c), 36(b), 41(b) and 46(b) of RJV's amended defence to counterclaim. The impugned paragraphs manifest RJV's attempt to respond to BGC's counterclaim put against it ‑ which seek liquidated damages from RJV under the provisions of the subcontract.
These paragraphs in RJV's amended defence to counterclaim had effectively contended via par 30(b) that the claim as advanced by BGC under par 67 of its counterclaim for liquidated damages was void as a penalty - in the respects as identified under s 30(b) and s 30(c) of the amended defence to counterclaim.

BGC's challenges against par 30(b) of the amended defence to counterclaim

Paragraph 30 of RJV's amended defence to counterclaim reads:
30.In relation to paragraph 67:
(a)subject to reference to the Subcontract for its full terms and effect, RJV (ie the plaintiff) admits paragraph 67;
(b)the alleged term is and was at all times void as a penalty because it not only assigned a sum being a percentage (0.025% of the Subcontract) for every day for each Milestone but accumulated those sums in respect of each Milestone.
(c)the alleged term in paragraph 67 is and was at all times void as a penalty because it purports to impose a liability on RJV in liquidated damages for delays in Practical Completion or any Milestone Completion caused by BGC (ie the first defendant).
By its chamber summons, BGC first challenges par 30(b) of RJV's amended defence to counterclaim. Paragraph 30(b) of RJV's amended defence to counterclaim as seen contends that the liquidated damages term of the subcontract pleaded in par 67 of BGC's defence and counterclaim, filed 28 March 2017, was void as a penalty.
BGC seeks for par 30(b) of RJV's amended defence to counterclaim to be struck out, on the basis that it is conceptually misconceived.
BGC's challenge was directed against par 30(b) as a matter of substance and also against its form. BGC argued that RJV's attempted assertion of 'penalty' by par 30(b) was conceptually misconceived ‑ applying the principles as now established towards the evaluation of penalties in Australia in the wake of the High Court of Australia's seminal decisions in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30; (2012) 247 CLR 205 and Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; (2016) 258 CLR 525.
At the hearing senior counsel for RJV did not seek to defend par 30(b), in effect, accepting it should be struck out.
RJV after the early concession was only then seeking to support the plea seen under par 30(c) above (and its counterparts) in the amended defence to counterclaim.
BGC had submitted that par 30(b) failed to disclose any arguable defence to be put against the defendants' counterclaim seeking liquidated damages from RJV.
Under the defendants' consolidated submissions at par 62, it was said that par 30(b):
should be struck out because the paragraph states a bare conclusion by reference to the terms of the Subcontract and does not contain any supporting material facts or particulars. In the absence of such information, and having regard to the high threshold for the establishment of a penalty set out in Paciocco and Grocon Constructions (Qld) Pty Ltd v Juniper Development [No 2]) Pty Ltd [2015] QCA 291 at [45]. The plea is simply inadequate.
Unchallenged as it was, BGC's submission against par 30(b) must be accepted. Consequently, par 30(b) will be struck out. In the circumstances, there should be no grant of leave to amend to raise future pleas of penalty.

BGC's challenges against pars 30(c), 36(b), 41(b) and 46(b) of the amended defence to counterclaim

The greater focus of attention at the hearing was directed towards par 30(c) and apparent counterparts manifesting later within the amended defence to counterclaim, including pars 36(b), 41(b) and 46(b).
In the end, a conceptual deficiency in this plea also came to be accepted by senior counsel for RJV. That was after some brief argument.
RJV's written submissions of 8 November 2017 at par 24 looked to suggest that RJV was seeking to invoke by the par 30(c) plea the 'prevention principle' applicable to construction contracts, but that RJV was not seeking to contend par 67 of BGC's counterclaim was void as a penalty, as currently pleaded.
An explanation of the 'prevention principle' may be found in the observations of McLure P in Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [No 2] [2012] WASCA 53; (2012) 287 ALR 360 particularly at [42], [47], [48] and [49]. I note her Honour's analysis of the somewhat conflicting Australian case authority as regards consequences of a principal relying on the failure to comply with notice requirements between [53] and [57].
Whatever might be said about the theoretical potential availability to RJV of the so called prevention principle, it is very plain that what is currently seen pleaded under par 30(c) of RJV's amended defence to counterclaim (and in the ensuing subsequent counterparts of that plea) does not yet even approach a minimum threshold of even arguably invoking the prevention principle or then, and more importantly, providing a rational base of factually pleaded circumstances to support its potential application to this action.
In the end, that deficiency was necessarily accepted by senior counsel for RJV by recognising the problem and seeking leave to amend par 30(c).
BGC, under its challenges against this plea (see pars 64 ‑ 69 of the defendants' consolidated submissions) drew attention to multiple asserted deficiencies - including in the subsequent counterpart pleas in the defence to counterclaim as regards fees payable under the Cumulative Accommodation Cap, Cumulative Flight Cap and the Maximum Fuel Cap.
Given the manifest inadequacy of the current par 30(c) pleading, it is not presently possible, or productive, to try and conduct an evaluation of RJV's as suggested future conceptual invocation of the prevention principle against BGC's counterclaims for liquidated damages.
In all the circumstances, the present plea under par 30(c) will be struck out as failing to disclose any arguable defence. BGC suggested, and I must agree, that RJV should be required, as the price of obtaining leave to amend as regards raising the prevention principle, to produce and circulate a proposed minute of further amended defence to counterclaim. The minute might then be evaluated under the conferral process from a perspective of determining whether any further attempts by RJV to invoke the so called prevention principle can legitimately support a grant of leave to amend the defence to counterclaim to raise such a plea. Given the wholly barren state of the pleading to date as regards underlying facts relied upon to support an application of the prevention principle ‑ it is appropriate that RJV proceed on this basis by producing a minute of amended defence and counterclaim as a precursor to any grant of leave to amend in that respect.
Consequently, BGC has at the end succeeded in respect of all the relief it sought in respect of its amended chamber summons by striking out pars 30(b), 30(c), 36(b), 41(b) and 46(b) of RJV's amended defence to counterclaim.
The parties can resolve by conferral a reasonable amount of time for RJV to bring in a proposed minute of further amended defence to counterclaim to address identified deficiencies to the current par 30(c) and its subsequent counterparts. That minute may then be further considered from the perspective of a grant of leave in future.
With this chamber summons application fully disposed of, I can now turn to evaluate what were the more substantive arguments raised under the first amended chamber summons ‑ which seeks to strike out major components of RJV's CSSOC. It should be unnecessary for me to say that pleading challenges of this nature need to be raising very fundamental problems with a pleading and not petty or pernickety grievances that inhibit a trial for tactical reasons.

The defendants' challenges against RJV's CSSOC

There are quite a number of different aspects to the defendants' challenges by its chamber summons filed 6 November 2017, as augmented by written submissions.
It is convenient to begin noting a concession made under RJV's second tranche of written submissions of 8 November 2017, as regards the defendants' challenge put against the various subparagraphs of par 27 of the CSSOC.
The defendants had challenged RJV's use of the pleaded words 'did not however strictly comply' concerning RJV's notices seeking extensions of time (see defendants' consolidated submissions pars 46 ‑ 51).
By par 23 of RJV's second tranche of the written submissions it was not sought to defend the challenged words. RJV made this concession:
The first defendant now requires the words 'however strictly' to be removed. The plaintiff is content with that course.
With that excision the challenged phrase as pleaded would only read that the notices 'did not comply with the requirements for notices pursuant to [the subcontract]'.
The challenged extra words 'however' and 'strictly', seen used at multiple parts of the pleading by RJV, on my assessment, were indeed both unnecessary and confusing pleaded surplusage.
Whilst a strike out application advanced upon that point alone would usually be actively discouraged as unduly pedantic and unwarranted, this challenge was only a subsidiary aspect of far greater structural issues put against the pleading which I must now address. By way of pure housekeeping however, it is convenient to note the excision concession at the outset and from there to remove what were these diverting and thereby legally embarrassing words.
The defendants substantively challenge many of the paragraphs in RJV's CSSOC relating to RJV's pleas regarding alleged misleading and deceptive conduct, suggested aspects of proper construction, estoppel, implied terms and the subsistence of what were the previously struck out pars 28 and 29.
It is not practicable to set out the entirety of what is now a lengthy statement of claim pleading by RJV. To avoid clutter and to hopefully assist with the overall intelligibility of the arguments, I will include a Schedule A to these reasons containing extracts of the most significant paragraphs from the CSSOC and which are now under challenge.
Using that approach, I can then concentrate within these reasons upon the major suggested conceptual deficiencies as contended by the defendants and RJV's defensive responses.
I turn to the defendants' specific challenges brought against aspects of RJV's CSSOC which remain in dispute.

The misleading and deceptive conduct claims

A first series of challenges can be referred to, broadly, as a strikeout attack put against RJV's statutory misleading or deceptive conduct pleas ‑ which pleas have a relatively young pedigree in the scheme of the multiple prior iterations of the CSSOC.

The pleas at issue can be found as pars 6A, 6AA and then at pars 52 ‑ 69 of the CSSOC.
For the purposes of evaluating present arguments, I concentrate on the pleas found under the two representational pleas, namely as 6AA and 6A.
Both pars 6AA and 6A of RJV's CSSOC display contentious words which the defendants challenge, essentially as embarrassing or as an abuse of process of the court.
The contentious words at issue are
knowing that RJV had no opportunity to inspect the Site and intending that RJV would rely thereon.
That phrase is seen at the end of both pars 6AA and 6A.
The core grievance which the defendants complains of is that RJV has accepted later in its pleading, that RJV did actually inspect the proposed (earthworks) site prior to RJV committing to its subcontract with BGC of 13 December 2013, (see defendants' consolidated submissions, pars 12(a) and (e)).
That factual admission by RJV of an inspection unequivocally emerges in RJV's reply and defence to counterclaim, particularly under par 2(d), where RJV admits to a 'brief' inspection of the site by its own representatives (including Mr Tony Lynch) on 20 November 2013. Further particulars were provided by RJV of that admission and indicating that the RJV inspection occurred over a period of seven hours (see affidavit of Samantha Jayne Hotton sworn on 11 July 2017, page 37).
So, essentially, the defendants point to the basal inconsistency of two conflicting positions seen on the face of RJV's two pleadings (ie, an inspection versus no inspection) which the defendants say is stark, embarrassing and should not be allowed to stand uncorrected as the inconsistency of position would interrupt the running of an efficient trial.
RJV accepts the inconsistency under its written submissions. At par 10 of a second tranche of written submissions, it says:
The plaintiff is not proceeding on some 'critical premise' that inspection would have revealed the true position. The lack of inspection (when the statements were made) merely supports the probability that there was then reliance on what the plaintiff was told.
To explain the determination I have reached in upholding this challenge it is only necessary for me to set out par 6AA. However, the same reasoning carries through to the similarly constructed par 6A (see Schedule A).
Paragraph 6AA of the CSSOC reads (and I have italicised the critical words at issue):
6AABy its Invitation to Tender BGC informed RJV, or represented to RJV that the ground improvement works would commence on 2 December 2013 and be completed by 27 March 2014, knowing that RJV had no opportunity to inspect the Site and intending that RJV would rely on thereon.
[Particulars provided refer to a construction programme included in the tender materials and confirmation in the subcontract by BGC's letter to RJV of 13 December 2013.]
Ensuing pleas in the CSSOC as regards RJV's alleged misleading and deceptive conduct claims are then completed under further pleas seen commencing at par 52 of the CSSOC by a general heading 'Misleading and deceptive conduct' (see Schedule A).
Paragraph 66 of the CSSOC contains a plea of alleged reliance by RJV on the par 6AA representation. Paragraph 67 contends for breach of s 18 of the Australian Consumer Law, as enacted under the Competition and Consumer Act 2010 (Cth), by reason of BGC 'giving the information' and then 'making the representation in paragraph 6AA'. Paragraph 67(b) next contends that to the extent they concern future matters ‑ BGC did so 'without any or any reasonable basis or grounds'.
The balance of par 67 (after subpar (c)) looks to be a plea that would seek to falsify the par 6AA representation. It contends 'when the information was given and when the representation [under par 6AA] was made, and when the Subcontract [ie, of 13 December 2013] was made:
1.the ground improvement works and the geotechnical design had not been carried out or completed by BGC;
2.the sub‑surface conditions in the Stockyard area:
a.rendered that area inaccessible by triple road trains for mass fill;
b.required extensive placement of rock and other geotechnical treatment which prevented mass‑fill by triple road trains;
c.required double‑handling of material to most areas; and
d.prevented the filling of 26,000 cubic metres per day.
Next, par 68 of the CSSOC contends for a reliance by RJV - on a basis that but for the par 6AA representation, it is said RJV would not have entered the subcontract or, indeed, any contract with BGC.
Paragraph 69 of the CSSOC then advances to contend that by reason of BGC's contraventions of the Australian Consumer Law that caused RJV a suffering of loss and damage in the amount of a reasonable sum which RJV says it is entitled to, it having proceeded with and substantially completed the Works. This is in the claimed amount of $35,955,627.40, along with RJV seeking the repayment of the security bond amounts which were (wrongly) called, as alleged, amounting to $4,583,158.44.
Similarly structured pleas of falsity of representations and reliance and damage as regards the other representation pleaded under par 6A may similarly be found in this concluding section of the pleading by par 56 ‑ which at par 56(a) - (b) would appear to repeat the very same representations as are earlier seen under CSSOC pars 6A(a) - (h) as being made to RJV on 9 October 2013 by Mr Beattie on behalf of BGC.
Reliance pleas as regards the par 6A pleaded representation (or par 56) can be found following under ensuing CSSOC pars 57, 59, 61 and 63.
The second half of par 62 of the CSSOC attempts to falsify some or all of par 6A representations (or par 56 representations). This plea repeats in identical fashion the very same matters as are already identified under the second half of par 67 - concerning the allegations that the ground improvement works and geotechnical design were not been carried out or completed by BGC along with the other four matters concerning subsurface conditions in the stockyard area. (I note there is a distinct further pleading problem arising here by a lack of clarity in terms of a reader needing to wallow around within the second half of par 62 to try and work out which (if any) of the alleged representations as seen under par 6A(a) ‑ (h) (or equivalent pleas under par 56(a) ‑ (h)) are sought to be falsified by some or all of the parts of their plea). In other words, the problem is that there should not be a 'rolled up' plea of falsity requiring the readers' speculation or guesswork over which of the assembled subparagraph representations are alleged to have been falsified, and then work out how that may be so by reference to what is the global and non‑specific content of the multiple matters presented at the second half of par 62. To that extent the pleading is vague, confusing and unsatisfactory.
But again, if that issue were the only problem, further clarification by way of requesting more detailed particulars would usually be a preferable way of first dealing with such a lack of clarity - rather than by a full blown strike out application.
However, given other more structural concerns soon to be addressed, it is opportune to require the rehabilitation of this obvious clarity deficiency - more applicable as a problem to the multiple representations as alleged by the subparagraphs of par 6A (and par 56) than to the single representational plea that is seen raised under par 6AA.

Problematic words within paragraphs 6AA and 6A

The defendants challenge the tail words commonly used in the pleas under CSSOC pars 6AA and 6A, ie, 'intending that RJV would rely thereon', plus the allied plea as to BGC's alleged knowledge of RJV's lack of opportunity to inspect the site.
This issue is relevant for periods immediately following the making of the alleged representations (ie, following the invitation to tender of 2 October 2013 for the par 6AA representation, and then, post 9 October 2013 in the case of par 6A representation).
As seen, it is uncontroversially accepted that BGC and RJV's subcontract was signed off and perfected as a binding contractual agreement on 13 December 2013. It is now also accepted that inspection of the earthworks site at Roy Hill was conducted by RJV's representatives on 20 November 2013.
What then is the significance to RJV of an asserted lack of opportunity to inspect the site, if it is to be confined temporally, to a brief pre‑contractual window up to 20 November 2013?
There is no sensible or satisfactory answer to that question found in RJV's pleading, or in the RJV response given under par 10 of the second tranche of RJV's written submissions.
The base difficulty for RJV, on my assessment, is that the problematic words used at the end of pars 6AA and 6A are surplusage and are irrelevant to a pleaded cause of action for statutory misleading or deceptive conduct - where it is established as a principle of law that a defendant's intent is not a required element of the statutory cause of action.
Not only is the intention of the person engaged in an act of misleading or deceptive conduct legally an irrelevant consideration to that cause of action, there is also, strictly speaking, no requirement for a 'representation' to be made ‑ as long as there is some 'conduct' that can be assessed overall to be statutorily misleading or deceptive, or as conduct that is likely to mislead or deceive.
Hence, the problematic tail words used by RJV in pars 6A and 6AA are a distraction.
It may be that, as regards a representation made upon a future matter, the lack of any reasonable grounds in the maker of the representation would indeed be relevant. However, from the time s 51A of the Trade Practices Act 1974 (Cth) was added to Part V of that legislation (and now finds form within the Australian Consumer Law), the absence of reasonable grounds in the representor of a future matter is a starting presumption for circumstances where the future matter as represented does not eventually come to pass.
RJV makes express pleas reliant upon that statutory presumption and to that effect: see par 67(b) of the CSSOC as regards the par 6AA representation, and par 62(b) towards the par 6A representations.
RJV's no opportunity to inspect plea (as at 9 October 2013) manifests once again in the introductory line of par 56.
The problematic tail phrase used by RJV in pars 6AA and 6A is an irrelevant distraction. Its deployment has led to wastage and to a diversion away from getting to grips with RJV's essential representational case as pleaded for misleading or deceptive conduct.
Stripped of the distracting diversion, the essence of the representation complained of under par 6AA reads as:
6AA.By its Invitation to Tender, BGC informed RJV, or represented to RJV that the ground improvement works would commence on 2 December 2013 and be completed by 27 March 2014.
(As a matter of pure history and timing, BGC's 'Invitation to Tender' is accepted as issued under BGC's letter of 2 October 2013).

Determination of the pleas under par 6AA

Analysis of the representational plea under par 6AA (of statutory misleading or deceptive conduct) may be identified as being conduct at 2 October 2013 ‑ by the making of what must be a future matter statement by BGC to RJV ‑ as to what would be happening in the future concerning ground improvement works.
As seen, the par 6AA future matter representation as alleged is directed first, at the time of the future commencement of these works and, second, to their anticipated future completion date ‑ across what was essentially a four month window of works, ie, from 2 December 2013 to 27 March 2014.
If it is being alleged by RJV that such ground commencement works were not so commenced, and were not completed by BGC within that four month timeframe, then that should clearly be pleaded ‑ in order to properly falsify the future matters plea. But on my assessment, no clear plea as to falsification by RJV concerning that future matter is seen to emerge out of par 67. Paragraph 67 appears to canvass many other things, but significantly not the completion by BGC of ground improvement works.
Finding a plea of falsification is essential to showing an arguable cause of action. It should not be necessary to speculate over it or try to winkle falsification out of some global plea.
Clearly, if a future matter that was represented at an earlier time did, in fact, eventually come to pass, then there can be no basis for a misleading or deceptive conduct complaint. Few people can be misled or deceived by a future matters representation which later comes to fruition as had been earlier represented.
If the par 6AA representation was not ultimately fulfilled, then whether or not BGC held any reasonable grounds as at 2 October 2013 for then making such a representation, as to an anticipated commencement and completion of BGC's ground improvement works, will be a matter for the trial.
Commercial experience would tend to suggest that project starting and completion time estimates, whilst made on a basis of best available information at the time first made, frequently do not materialise precisely on the estimated timeline ‑ for many reasons. But here, the more material question is what causation and reliance implications are said to arise out of this represented future matter.
That position is skated across via pars 56 to 69 of the CSSOC. As pleaded, the essence of RJV's causation and reliance pleas appears to be a future matter representation that had led RJV to submit three successive tenders to perform the bulk Roy Hill earthworks and then enter their subcontract to that end.
RJV's alleged loss and damage from doing all that then seems to be articulated on the basis of a plea that it would not otherwise have entered the subcontract, or any contract with BGC.
As a result, all losses flowing out of an unhappy sub‑contractual position RJV subsequently found itself committed to with BGC under its subcontract are laid at the door of BGC. That appears to be the effect of the CSSOC plea seen under par 69.
But to merely contend in a bland way that the par 6AA representation led to the subcontract and the subcontract led to loss ‑ does not expose a sufficient connection between falsified future events (if shown) with the asserted loss and damage - leading to a basis for statutory compensation.
There is then, by my assessment, presently an insufficient causative linkage explained as between the future matter representation and the contended loss. Such failure by RJV to expose its true case in a sufficiently clear fashion would inhibit the running of a properly managed trial. The inspection opportunity inconsistency should be removed in this process. In the circumstances, I would strike out par 6AA and the ensuing allied pleas under pars 67, 68 and 69.
There should, however, be leave to re‑plead, on this issue, subject to RJV meeting the costs thrown away by the defendants.

Determination of pleas under pars 6A and their equivalent under par 56 of the CSSOC

A similar structural deficiency is manifested under pars 6A and 56 as regards the same problematic phrase 'knowing that they and RJV had no opportunity to inspect the Site and intending that they and RJV would rely thereon'. This is pleaded as an asserted representation verbally made by Mr Beattie on 9 October 2013 to RJV's representatives, Mr Lynch and Mr Bick. That phrase should again be struck out, not least for the false issue it creates as regards the asserted lack of an opportunity to inspect plea.
The representation plea seen under par 6A(a), to the effect that 'the Works required were bulk earthworks', is uncontroversial. That plea is, of course, a statement or representation of pure fact.
But pleas under par 6A(b), (c), (e) and (f) all appear to be alleged representations as to future matters (assessed by reference to the phraseology deployed including 'would present', 'could be', 'was readily achievable' and 'no requirement'). Representations pleaded under par 6A(d) appear to be partly factual 'had themselves calculated', but also partly made as to a future matter by 'works … in the Stockyard area could be undertaken'.
The alleged representations collected under pars 6A(e), (f), (g) and (h) appear to manifest statements of opinions as attributed to BGC at the time.
How it might be that any of those asserted par 6A representations as to future matters or representations of opinion, could fall to be characterised as misleading or deceptive conduct ‑ is not answered by an examination of the content of par 62 of the CSSOC (the second half of which is replicated under par 67). The unaddressed obscurity is unacceptable.
Further, from a causation and reliance perspective whilst assessing pars 59, 60A, 61 and 63, the contended consequence of all the representational conduct would once again appear to be only RJV's three tenders made to BGC and then RJV's entry into the subcontract with BGC. A required link as between entering the subcontract and the sustaining $35,955,627.40 in alleged loss and damage is not adequately or sufficiently explained.
These pleas must in the end all be struck out as failing to disclose an arguable cause of action, or alternatively as embarrassing. Again, there should be leave to re‑plead but the defendants' costs thrown away must be paid by RJV.
Furthermore, the causation of loss pleas as seen under CSSOC ultimately contends that RJV was misled and deceived into entering the subcontract (pars 63 and 68). Bearing in mind the BGC/RJV subcontract was entered on 13 December 2013, and there is now an admitted inspection of the earthworks site by RJV's representatives on 20 November 2013, that simply cannot be reconciled with (without a greater pleaded explanation) why any adverse RJV consequences arise from a non‑inspection of the site might possibly extend beyond the time of RJV's eventual inspection on 20 November 2013. The question then arises, when would this be an operative representation ‑ in a time from 20 November 2013 to just before the subcontract was entered on 13 December 2013? The ensuing confusion provides a basis for these pleas to be struck down.
As accepted during argument, the fate of RJV's separate chamber summons dealt with at the hearing and which seeks leave to further amend RJV's writ ‑ must rise or fall with the fate of RJV's currently pleaded representations under pars 6A and 6AA. Those paragraphs are defective in their present forms. Given that, leave for RJV to further amend its writ in related representational plea respects, must correlatively be refused.

Determination of pleas under pars 62 ‑ 65 of the CSSOC

A final aspect of this representational pleas challenge by BGC concerns a plea made against Mr Beattie, a senior project manager of BGC and the deputy project director of the Roy Hill project (CSSOC, par 53), found under CSSOC, pars 62 to 64, and particularly under par 65.
Absent any plea of accessorial liability put against Mr Beattie under the Australian Consumer Law there is no basis to advance a claim of misleading and deceptive conduct directly against Mr Beattie - and particularly bearing in mind the express plea seen under CSSOC, par 65 as regards Mr Beattie's authority to act on behalf of BGC.
It would be open to RJV to advance (subject to limitation of action considerations) a direct plea against Mr Beattie under provisions of the Fair Trading Act 2010 (WA) and the Australian Consumer Law as appended thereto ‑ but that course has not been followed to date by RJV.
Accordingly, all paragraphs concerning Mr Beattie personally should also be struck out, as failing to disclose any arguable cause of action, but again with leave for RJV to amend.

Proper contractual construction: Legitimate surrounding circumstances events

I move to evaluate the next impugned aspects of the CSSOC. This is BGC's challenge put against RJV's so‑called proper construction pleas.

Fundamentally, these challenges concern RJV's pleas under pars 12, 17A and 25 of the CSSOC (there are also linked challenges against pars 6A and 7A, but those challenges are ancillary).
The terms of a representation plea made under par 6A has now been examined in the misleading and deceptive conduct context of assessing its direct deficiencies. Paragraph 7A of the CSSOC advances in the following terms:
7A.On about 25 October 2013, and in reliance on the information and representations referred to in paragraph 6A, RJV presented its proposal to carry out the works in the manner discussed at the meeting of 9 October 2013, but using fifteen rather than thirteen 165 tonne triple trailers.
A temporal significance of pars 6A and 7A together is that they are representational pleas alleged as made to RJV by BGC in the pre‑contract period, prior to the finally agreed subcontract being consummated by writing on 13 December 2013.
The basal difficulty manifested particularly under pars 12 and 17A arises out of a later pleaded attempt by RJV to use those matters of representation (arising out of verbal discussions as contended surrounding circumstances context) for a purpose of aiding the argued interpretation and the reaching of a true meaning of the subcontract.
This problem culminates at the chapeau to CSSOC par 12 which reads:
12.The Subcontract was made in the circumstances and in the context of the matters referred to in paragraphs 6A and 7A and is and was to be so construed and consisted of: …
There follows six individual written aspects of the subcontract addressed under par 12.
Were it not for the six aspects of the subcontract, the legally misconceived effort of RJV to contend that falsified representations (of fact, opinion or future matter) might form a viable part of surrounding circumstances evidence bearing on a contractual construction exercise ‑ might be overlooked as a pleader's flourish and then ignored as a passing irrelevance.
However, the particulars to CSSOC par 17A as regards the pleaded meaning of the word 'access' and its proper construction only perpetuate what is a misconception of law concerning contractual meaning. It is therefore necessary to identify and correct what is a contagious error of law by RJV before it perpetuates and disrupts the efficient running of a trial. Paragraph 17A(b) contends:
(b)165 tonne triple trailers were to be used by RJV, and access for that purpose was to be given by BGC, and they were mutually known or agreed facts or surrounding circumstances which are admissible to construe the access provisions of the Subcontract.
Particulars
RJV relies on‑
(1)the conversations referred to in paragraph 6A;
(2)the RJV presentation referred to in paragraph 7A, including the 'Methodology and Plant' slides which RJV produced on that occasion; and
(3)the Construction Program (Attachment 2 Schedule 3) in the Subcontract.
On my assessment, par 17A(b) and its particulars are wholly misconceived. They should be struck out now. Any pre-contractual conversations of a representational character as raised under par 6A and any proposal made by RJV at a meeting on 25 October 2013 about using 15 rather than 13 (165 tonne) triple trailers could not, even arguably, be a mutually known surrounding fact or circumstance that would be deployable for the purposes of construing a true meaning of the word 'access' within General Condition 24.1 of the subcontract.
Applying the well‑established observations of Mason J from Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352, there is a vital distinction between a mutually known fact by the parties or surrounding circumstance, or a fact or circumstance that is then notorious, in strong contrast to what is a matter of pure negotiation. That distinction must be fully respected. The RJV plea plainly conflates the two concepts most impermissibly. It cannot be allowed to stand.
The RJV plea seen under par 25 is more detailed. It requires a separate evaluation concerning its invocation of a working methodology in the stockyard that is referred to as 'the Method'.
I have set out the full text of par 25 in the Schedule A. From that it will be seen that the RJV plea commences as a matter of the alleged proper construction of the subcontract. The first problem is that the plea does not identify any specific clauses or components of the subcontract said to be the subject of this construction.
The par 25 plea on analysis looks to be more in the character of something approaching an alleged ad hoc implied term of the subcontract.
Second, RJV's invocation of circumstances and commercial setting by itself is unobjectionable. However, the incorporation into that commercial setting of the further purely representational matters as alleged under pars 6A and 7A ‑ is flawed. It is a plea that repeats what is a problematic conflation of concepts earlier identified (ie, mutually known surrounding facts as opposed to matters of pre‑contractual negotiation).
I strike out from CSSOC par 25(a) the words 'and is to be construed, being those referred to in paragraphs 6A and 7A'. The balance of par 25(a) plea can stand. Paragraphs 25(b), (c) and (d) are otherwise unobjectionable. Whether they do or do not ultimately support a plea as to 'the Method' as contended for, will be a matter for trial. Likewise for par 25(e).
Subject to a proper identification by further particulars of the aspects of the subcontract which are alleged to be a subject of this contended construction under par 25, I would allow that plea to stand after excisions to par 25(a) as indicated.
The RJV representation plea under par 6A has already been struck out. The plea under par 7A may stand, subject to excision of a derivatively infected phrase 'and in reliance on the information and representations referred to in paragraph 6A' which will be similarly struck out. Otherwise, par 7A may stand.
I turn to the impugned estoppel pleas.

The estoppel plea

An estoppel plea by RJV is found at par 27A(i), (ii) and (iii) of the CSSOC. Particulars are provided at par 27A(i). They all eventually identify a so‑called 'May Assurance'.
The central plea under par 27A(i) unfolds in terms:
(i)On 6 May 2014, BGC agreed with, or alternatively promised, RJV that it would consider all genuine claims by RJV regardless of the notice provisions in the Subcontract.
There is no plea by RJV of a collateral contract arising out of an alleged oral conversation between Messrs Murphy and Beattie with RJV's representatives Messrs Lynch, Evans and Love on 6 May 2014. Nor would that course be viable given a likely inconsistency in any such collateral promise with the express terms of the subcontract (thereby offending the still applicable inconsistency threshold under Hoyt's Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133.
So, for all intents and purposes par 27A(i) of this estoppel plea must be read:
On 6 May 2014, BGC … promised RJV that it would consider all genuine claims by RJV regardless of the notice provisions in the Subcontract.
Assessed on that decluttered basis, the RJV estoppel plea as contended for must be in the nature of what is understood as a class of equitable estoppel known as a promissory estoppel (ie, given the nature of a future promise by the plea as to what BGC would allegedly do in future vis-à-vis RJV's genuine claims and regardless of the notice provisions in the subcontract. See Bell Group Ltd (in liq) v Westpac Banking Corp [No 9] [2008] WASC 239; (2008) 39 WAR 1 [3535] ‑ [3545] cited by me in Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, 788).
The main challenge made by BGC against this plea arises from BGC's factual position that no such May Assurance was ever given. Of course, that is a factual dispute for the trial. But BGC's point is that if RJV ever obtained any such impression out of that meeting, that subsequent express correspondence sent from BGC on 15 May 2014 to RJV fully withdrew and so cleared up and ended any such impression as to BGC's future position (see defendants' consolidated submissions, par 33).
Correlatively, it is put by BGC that any May Assurance misapprehension in RJV suffered over a nine‑day period in all the circumstances until it was unequivocally corrected by BGC's 15 May letter must ultimately go nowhere, in terms of the establishing of a viable promissory estoppel favouring RJV against BGC.
The tail of the RJV estoppel plea manifests under par 32B in terms:
By reason of the May Assurance referred to in paragraph 27A, the BGC Representative was nevertheless required to properly assess RJV's genuine claims and, in doing so, he was required to act honestly, bona fide and reasonably.
The CSSOC advances next to plead a breach of the subcontract or alternatively a breach of the May Assurance given by BGC's representative, by failing to assess the multiple notices of contended delaying events as submitted by RJV. This plea is advanced on the basis that the notices of RJV were not given in accord with the strict terms of the contractual stipulated regime for the giving of notices under the subcontract's General Conditions: see par 32C(f).
The RJV promissory estoppel plea looks to be directed like the plea seen in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, towards eventually contending that BGC ought not to be permitted to depart from a state of affairs as promised under the May Assurance. Hence, RJV pleads that its claims must all be fully evaluated on their merits by reason of the force of the promissory estoppel carrying a debarring effect as regards BGC taking any position to the contrary of that as was earlier articulated by BGC, and that is not consistent with BGC's May Assurance.
Approaching the RJV estoppel in that fashion, I turn to look for pleaded elements of reliance and detriment which are the necessary further components of such a promissory estoppel plea by RJV.
A reliance plea is found under par 27A(ii). But it conflates a number of other matters including the contended misleading and deceptive conduct under par 6A - as well as, I assume, what is also a breach of contract plea advanced under par 27A(ii)B as regards an access breach.
Nevertheless, the substance of the RJV estoppel reliance plea appears to be to the effect that but for the May Assurance, RJV would have earlier terminated this subcontract with BGC 'as it was entitled to do', as at 6 May 2014.
Inferentially, the pleaded detriment under the estoppel as is contended under 27A(ii), is that it appears to be put RJV proceeded on from this time to continue to perform WUSC. Why that is said to be to RJV's detriment is not otherwise explained.
Clearly, this plea is heavily premised upon the assumption that at this time RJV was otherwise lawfully entitled to terminate the subcontract with BGC‑ a proposition significantly in controversy between these parties, but otherwise a matter for trial.
So, the state of affairs sought to be established by the RJV promissory estoppel as seen under par 27A(iii) as regards a prevention of BGC from relying upon any failure of RJV to have given 'any such notice under the Subcontract', presumably must mean RJV's notices of its genuine claims, albeit RJV's notices, were not given in accord with the notice provisions of the subcontract, but could not be rejected because of the May Assurance ‑ although that to some extent is a matter of assumption on my part.
That position seems to be in accord with the RJV plea seen under par 27A(iii)(2). BGC says that this RJV plea is wholly defective. I turn to evaluate that contention.

Estoppel: Evaluation of par 27A of CSSOC

BGC contends RJV's par 27A estoppel plea used to claim extensions of time and claim for delay costs under the subcontract or alternatively damages in lieu thereof, is flawed. The plea is effectively used as an attempted antidote against RJV's problematic failure to meet the formal requirements of the General Conditions as regards the giving of notice under pars 34.2, 34.3 and 41.2 of the subcontract (the content of which may be found set out in my previous evaluation of RJV's then statement of claim in 2016: see Ralmana Pty Ltd v BGC Contracting Pty Ltd [2016] WASC 131). The notice provisions express themselves as being conditions precedent to RJV obtaining extensions of time or delay costs.
BGC's challenges against par 27A are advanced under RSC O 20 r 19(1)(a), (b) and (c). The attack also incorporates the subsequent references seen within the CSSOC to par 27A as incorporating the May Assurance allegedly made to RJV by BGC at a meeting between representatives of those entities on 6 May 2014.
There will be issues to be resolved again, at any trial concerning whether or not the 6 May 2014 meeting was conducted on a without a prejudice basis as BGC alleges. That issue is not susceptible to resolution on a strike out application, as BGC accepts.
Nor can BGC's robust denial, in effect, that any May Assurance was ever given be evaluated other than at a trial. BGC also acknowledges that. But BGC wishes to contend, hypothetically, that even fully accepting a premise that the May Assurance was given by it on 6 May, that nevertheless BGC's subsequent unequivocal correspondence to RJV (see affidavit of Pierce Tait McMahon sworn on 28 June 2017, with attachments PTM7 to PTM17) had unmistakeably advised RJV of an explicit withdrawal of any May Assurance.
Hence, BGC says, RJV could not from then or ever reasonably rely on that May Assurance.
It is only necessary for me to refer to one of the attachments: see PTM13 which is BGC's written communication of 15 May 2014 to RJV under which RJV was advised BGC took the view that RJV's previously circulated notes for the 6 May 2014 meeting were 'not an accurate representation of our discussions'.
BGC then told RJV:
By way of example (and of particular concern), one of your notes states that: 'BGC will consider "genuine" claims regardless of notice provisions in the Subcontract'. This statement is untrue. We are compelled to reject your notes as the correct record for our discussions.
The penultimate paragraph of BGC's letter to RJV continued:
For the sake of clarity, whilst BGC is prepared to continue discussing with RJV, such further discussions must be understood as and conducted on a 'Without Prejudice' basis. Further, BGC fully reserves it rights under the Subcontract.
We trust the above clarifies our position.
The letter was signed for BGC by its project director, Mr Kim Tan.
By my assessment, that BGC communication under PTM13 on 15 May 2014 and particularly by the concluding sentence's reference to BGC fully reserving its rights under the subcontract, was unequivocal.
To countenance this promissory estoppel argument by RJV at a future trial, in a $35 million plus action, would be to proceed on what is essentially an untenable premise. It is in no‑one's interest to allow the accompanying waste of public resources by RJV in advocating for an estoppel that is a lost cause.
The receipt of this evidence, which is uncontroversially put before me, might be thought to extend beyond the strict parameters of RSC O 20 r 19(1)(a). No evidence is admissible on an application contending the absence of a reasonable cause of action (see O 20 r 19(2)). But that is not the end of the matter.
The evidentiary constraint does not apply to an exercise of the inherent jurisdiction of the court to control abuses of its process. Here, I am satisfied that the May Assurance withdrawal and the clarification of BGC's position is self‑evidently clear. It is fatal to this estoppel argument from then. I cannot allow the present wasteful formulation of such a promissory estoppel plea to proceed to a lengthy and expensive trial where it is so flawed at the outset.
Mr Ritter QC's attempted rationalisation of passing correspondence as collected in Mr McMahon's affidavit was brave. But it was essentially directed to a different issue namely to 'Pass Through Claims': see for instance in the communication of 7 May 2014 from RJV to BGC (PTM9). That rationalisation might just be applied to BGC's communication of 9 May 2014 (PTM10). But the attempted rationalisation cannot undo what is an unequivocal and plenary rejection of any so‑called May Assurance that BGC delivered to RJV under the communication of 15 May 2014 ‑ then reiterated in subsequent communications all collected in that same McMahon affidavit: see, for instance, PTM15.
Consequently, the RJV promissory estoppel plea should be struck out ‑ essentially as an abuse of process. I would not allow leave to re‑plead any promissory estoppel claim arising out of the 6 May 2014 meeting.
Consequential references found within the CSSOC must also be correlatively struck down as well. Those correlative references would extend to include:
•Paragraphs 27, 30, 32, 32A ‑ 32D.
•Paragraphs 31, 31A, 33, 34.
•Paragraphs 24B, 24C and prayer for relief 1 and 4, are also dependent on the above flawed paragraphs and so, fall as well.
Schedule 1 is dependent on pars 33 and 34. They are defective because of references seen there to the May Assurance as a basis for those claims, absent compliance with the requirements of the notice provisions of the General Conditions: see also in that respect pars 27(a)(v), 27(b)(v), 27(c)(iv), 27(d)(iv), 27(e)(iv) and 27(f)(iv). Similarly impacted derivatively are pars 30(b), 32B and 32C. Those pleas, as noted, will all be struck out.
I now move to the next head of challenge directed against RJV's implied term pleas.

Implied term pleas

Implied term pleas by RJV and breaches of those implied terms can be found under par 24B of the CSSOC.
Challenges are put against pleas of breaches of the implied terms - on a basis that there is only a generic reference to particulars of breach found in par 27.
Hence, BGC's grievance is that BGC is essentially asked to search across 17 pages of material ‑ making up CSSOC par 27, in order to try to ascertain what is the relevant breach conduct sought to be attributed to BGC vis-à-vis each of the implied terms (see defendants' consolidated submissions pars 43, 44).
Again, by itself, such a grievance would not warrant a strike out application. The problem would seem to be capable of being addressed by answers to a request for further particulars of the alleged breaches. But given other surrounding deficiencies, the problem is one that requires a present acknowledgment. It must be addressed as regards par 24C.
The CSSOC implied term plea seen under par 24B is as follows:
There were terms of the Subcontract that BGC would:
(a)do all things necessary to allow RJV to have the benefit of the Subcontract and to carry out the WUSC in accordance with the program under the Subcontract; and
(b)carry out or cause to be carried out the work described in the Scope of Works other than the WUSC in a proper and workmanlike manner and in accordance with the Program under the Subcontract.
Particulars
The term pleaded at paragraph 24B(a) is to be implied as a matter of law. The term pleaded at paragraph 24B(b) arises from the proper construction of the Subcontract, and, in particular, from the inclusion of the BGC Scope of Works and the Program in the Subcontract.
A number of problematic features arise in this plea.
Part of the 24B(a) implied term might be accepted in concept as a term to be implied by law ‑ but only up to the use of the conjunctive word 'and'. Thereafter, that cannot be the case. The words that follow 'Subcontract', seem to be an aspect of an express term, particularly if the word 'program' is used to denote the revised BGC program, which is the definition of the term 'Program' seen under the plea as to subcontract components at par 12(f).
The reference to 'program' as pleaded in par 24B(a) is said to be an implied term as a matter of law. Reference to 'program' in the tail of par 24B(a) may be contrasted (inconsistently) with the reference seen under the second contended implied term via par 24B(b) - which refers to 'the Program'. The inconsistency of terminology is confusing. I assume the reference that was meant overall in par 24B(a) and (b) was to be to 'the Program' ‑ as defined under par 12(f), being a component of the subcontract.

The plea under par 24B(a) reflects an aspect of the implied term of co‑operation implied by law within commercial contracts: see Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596. One might expect a plea of breach based upon that implied term to identify respects in which BGC had specifically denied RJV the benefit of the subcontract. But that is not even attempted under a dragnet reference to par 27 through the breach plea seen under par 24C(b).
An ad hoc implied term of fact seen under par 24B(b) looks to be invoking aspects of express terms, as regards efficient ground improvement works implemented in a proper and workmanlike manner in accordance with the Program.
Again there is a conflation of grievances here. Perhaps the grievance is about defective performance of works. Perhaps the grievance is about a lack of timeous performance of the ground improvement works. Perhaps the grievance breach is about both? However BGC is being left (like the court) to search across the 17 pages of par 27 to speculate about answers to these questions. That is wholly unacceptable. The pleas as formulated under pars 24B and 24C are vague and embarrassing.
The pleas must be struck out, but here with leave to re‑plead. Again, all BGC's costs of challenging these pleas should be met by RJV.
I have already dealt with and addressed the CSSOC pleas concerning RJV's gratuitous terminology at places within par 27 to 'which notices did not however strictly comply with the requirements for notices pursuant to [the subcontract]'. A concession has rightly been made by RJV that the words 'however strictly' can be excised. That consequence will likewise apply to pars 30(a) and 32A.

Previously struck out pars 28 and 29

This last issue is to be dealt entirely by reference to the parties' written submissions ‑ as there was insufficient time for counsel to deal with the matter verbally at the hearing. I refer to the defendants' consolidated submissions, section I, pars 52 ‑ 58 containing BGC's arguments as regards this issue.
Paragraph 28 would appear to have been augmented as regards subpars (c) and (d) which make reference to the so called May Assurance. It contends that the notices issued and referred to under par 28(b) should have been assessed by BGC's representative and further, that it was a breach of the subcontract effectively protected by the estoppel from the May Assurance for that not to have occurred.
CSSOC pars 28(c) and (d) now fall away, upon the striking out of the May Assurance. With an excisement of those pleas as the basis for a pure breach claim, the entitlement to an additional cost under General Conditions 32.2(c) and a claim to an entitlement of a reasonable extension of time under par 28(e) would now lack any foundational basis ‑ rendering this a plea that is in effect, akin to the defective former plea seen under par 28.
In the circumstances, par 28 must fall and carry with it par 29 as well.

Conclusion

Excisement of all CSSOC paragraphs mentioned to date effectively leaves standing only the plaintiff quantum meruit claim under pars 46 to 51. Those paragraphs were not challenged on the present application.
I will publish these reasons to provide the parties with an opportunity to confer about an appropriate minute of orders reflecting their outcomes in due course.

SCHEDULE A
FOURTH FURTHER SUBSTITUTED AMENDED STATEMENT OF CLAIM AMENDED PURSUANT TO ORDERS OF JUSTICE KENNETH MARTIN MADE ON 24 OCTOBER 2017
1.The Plaintiff (RJV) is and was at all material times, a company duly incorporated according to law, trading under the name RJ Vincent & Co.
2.The Defendant (BGC) is and was at all material times a company duly incorporated according to law.
BACKGROUND

3.At all material times, Roy Hill Holdings Pty Limited (Principal) was engaged in establishing an iron ore mine, heavy haul railway and new port facilities at Roy Hill, Newman in the State of Western Australia.
4.The Principal engaged Samsung C&T Corporation (Samsung) by written agreement (Head Contract) to design and construct the iron ore mine, heavy haul railway and new port facilities at Roy Hill (Project).
5.Samsung engaged BGC to perform various works required to be performed by Samsung pursuant to the Head Contract (BGC Agreement).
Letter of intent

6.By letter dated 2 October 2013, BGC invited RJV to tender for the performance of works required to be performed by BGC pursuant to the BGC Agreement described as 'Bulk Earthworks Package' (Invitation to Tender) together with relevant tender materials (Tender Materials).
Particulars of Tender Materials
BGC provided RJV with the Invitation to Tender together with a CD which contained the Tender Materials, comprising of:

(i)Draft version of the proposed subcontract for bulk earthworks for the Project (Draft Subcontract);
(ii)Annexures to the Draft Subcontract being Parts A to Q;
(iii)an outline of the proposed Scope of Works to be performed by the subcontractor to BGC; and
(iv)an outline of the specification of the Roy Hill Project, outlining, inter alia, BGC's scope of works in preparing the Project for the bulk earthworks.
6AA.By its Invitation to Tender, BGC informed RJV, or represented to RJV that the ground improvement works would commence on 2 December 2013 and be completed by 27 March 2014, knowing that RJV had no opportunity to inspect the Site and intending that RJV would rely thereon.
Particulars

Construction Programme - Earthwork Target (Roy Hill Package 3 - Civil Works) included in the Tender Materials and confirmed in the Subcontract offered by BGC's letter to RJV dated 13 December 2013 [B002].
6A.On 9 November 2013, BGC informed RJV, or represented to RJV, knowing that RJV had no opportunity to inspect the Site and intending that RJV would rely thereon, that -
(a)the works required were bulk earthworks;
(b)the surface and sub-surface conditions in the Stockyard area would present no impediment to access by triple road trains;
(c)the works, and in particular those in the Stockyard area, could be undertaken using thirteen 165 tonne triple trailers;
(d)BGC had themselves calculated that the works and in particular those in the Stockyard area could be undertaken using thirteen 165 tonne triple trailers;
(e)cutting and filling 26,000 cubic meters per day was readily achievable having regard to the Site and soil conditions;
(f)there was no requirement for any double handling of material;
(g)the soil was all the same and would come from the same borrow pit;
(h)ground improvement works and geotechnical design were to be done by BGC and were outside RJV's work.
Particulars
The information was given, and the representations were made, by John Beattie of BGC at a meeting on 9 October 2013 attended by Anthony Lynch and Clinton Bick of RJV. They were oral and were in substance to the effect above.

7.By letter dated 18 October 2013, RJV provided to BGC a written quotation for the works required as outlined in the Invitation to Tender in the sum of $44,981,755.63 (excl. GST) (First Tender), which included a provision of $2,680,104.68 (excluding GST) for preliminaries and a draft program for the performance of the bulk earthworks (RJV Program).
7A.On about 25 October 2013, and in reliance on the information and representations referred to in paragraph 6A, RJV presented its proposal to carry out the works in the manner discussed at the meeting of 9 October 2013, but using fifteen rather than thirteen 165 tonne triple trailers.
8.Pursuant to BGC's request, and in reliance on the information and representations referred to in paragraphs 6A and 7A, by letter dated 28 October 2013, RJV provided to BGC a revised written quotation of the First Tender in the sum of $45,831,583.04 (excluding GST) (Second Tender), to include the additional provision for the cost of a Surveyor and an HSE representative and which included a provision of $3,529,932.09 (excluding GST) for preliminaries.
Particulars of BGC Request
BGC's request was made verbally by the Second Defendant (John Beattie) to Anthony Lynch and Clinton Bick of RJV at a meeting held at BGC's Office located at Hazelmere on or about 25 October 2013, in which John Beattie said words to the effect that RJV should ensure to include the cost of an RJV HSE representative to confirm compliance with the RJV safety system and the cost of an RJV Surveyor for RJV's end of month claims and ensure RJV is paid for what it does.

Particulars of Second Tender
The Second Tender was made in writing and sent by email on 28 October 2013 from Clinton Bick of RJV to Ross Kinnear of BGC.

9.On or about 8 November 2013, BGC notified RJV of its intention to enter an agreement for, inter alia, the performance of bulk earthworks for the roads and rail embankments for the Project (Letter of Intent).
Particulars
Letter from BGC to RJV dated 8 November 2013 [B.001]
10.The Letter of Intent contained, inter alia, the following express, written terms:
(a)BGC intended to enter into a subcontract with RJV for the bulk earthworks in the terms of, or substantially similar to, the Draft Subcontract;
(b)RJV was to commence works under the Letter of Intent on 2 December 2013 (Commencement Date);
(c)the Letter of Intent was to adopt the terms and conditions contained in the Draft Subcontract;
(d)BGC was to pay RJV in accordance with the Draft Subcontract; and
(e)if and when BGC and RJV entered into a subcontract in the terms of, or substantially similar to, the Draft Subcontract, the Letter of Intent was to cease to have further effect.

10A.Pursuant to BGC's request and in reliance on the information and representations referred to in paragraphs 6A and 7A, by email sent on 18 November 2013, RJV revised the Second Tender and provided a new tender in the sum of $45,831,584.46 (excluding GST) (Third Tender), which included a provision of $3,532,819.74 (excluding GST) for preliminaries.
Particulars of BGC Request
BGC's request was sent on 18 November 2013 by Stuart Seddon of BGC to Clinton Bick of RJV
Subcontract

11.By agreement in writing, entered into on 13 December 2013, BGC engaged RJV for, inter alia, the performance of bulk earthworks for the roads and rail embankments for the Project (Subcontract).
12.The Subcontract was made in the circumstances and in the context of the matters referred to in paragraphs 6A and 7A and is and was to be so construed and consisted of:
(a)the Formal Instrument of Agreement;
(b)the General Conditions of Subcontract (GC) with Annexures Part A to Part Q;
(c)the document entitled 'Subcontract Scope of Works Roy Hill Project - Package 3 Port Landside' (which set out the scope of BGC's work under the BGC Agreement) (BGC Scope of Works);
(d)a document setting out the Subcontractor's scope of works which set out the scope of RJV's work under the Subcontract (RJV Scope of Works);
(e)the Contractor's Project Requirements; and
(f)a revised BGC program (Program),
as outlined in clauses 2 and 3 of the Formal Instrument of Agreement.
TERMS OF THE SUBCONTRACT

13.The material terms of the Subcontract were the same as those provided in the Draft Subcontract, but for the RJV Program, which was not included in the Draft Subcontract.
RJV's Works to be Completed

14.The Subcontract contained express terms to the effect that RJV was required to perform and complete the works described as WUSC in the Subcontract (WUSC):
(a)in accordance with the Subcontract and any Directions (as defined in the Subcontract) given by the BGC Representative (as that term is defined in the Subcontract) in accordance with the Subcontract (GC 2.1);
(b)for 365 days per year, 24 hours per day (GC 31 and Item 26A of Annexure Part A); and
(c)by the Milestones and Practical Completion dates nominated in the Annexure Part A to the General Conditions (GC 1.1 and GC 34.1 and items 6G and 7 of Annexure Part A).

15.The RJV Scope of Works provided that RJV were required to carry out excavation load haul and filling of earth works for approximately 20 kilometres of rail embankment and approximately 65 kilometres of roads and associated works for the stockyard and building pads for the purpose of building the roads and rail for the Project.
Particulars
The RJV Scope of Works provided that RJV's WUSC included:
…
Access

17.The Subcontract contained express terms that BGC was required to provide RJV with:
(a)access to sufficient of the Site for the commencement and performance of the WUSC within 7 days of the date of the Subcontract; and
(b)access to such further portions of the Site as may, from time to time, be necessary for carrying out the WUSC,
(GC 1.1 and GC 24.1 and Item 26 of Annexure Part A).

17A (a) Access is not a defined term in the Subcontract and its proper construction particularly for GC 24.1, was access enabling the work to be carried out using 165 tonne triple trailers.
(b)165 tonne triple trailers were to be used by RJV, and access for that purpose was to be given by BGC, and they were mutually known or agreed facts or surrounding circumstances which are admissible to construe the access provisions of the Subcontract.

Particulars
RJV relies on -
(1)the conversations referred to in paragraph 6A;
(2)the RJV presentation referred to in paragraph 7A, including the 'Methodology and Plant' slides which RJV produced on that occasion; and
(3)the Construction Program (Attachment 2 Schedule 3) in the Subcontract.

Program

18.The Subcontract contained express terms that:
(a)within 7 days of the date of the Subcontract, RJV must prepare and lodge with the BGC Representative a programme that, inter alia, outlines RJV's bona fide planned work activities and sequences for bringing the WUSC to Practical Completion in accordance with the Subcontract (Proposed Program) (GC 32.3(a));
(b)within 35 days of receiving the Proposed Program, the BGC Representative must notify RJV whether or not the Program is approved and if not, the reasons why it is not approved (GC 32.3(b));
(c)if the BGC Representative fails to give notice within 35 days of receiving the Proposed Program, the Proposed Program will be deemed to have been rejected (GC 32.3(b));
(d)if the BGC Representative notifies RJV that the Proposed Program is not approved, RJV must promptly submit a new Proposed Program to BGC and the terms outlined in subparagraphs (a) to (c) above will apply (GC 32.3(b)); and
(e)until such time as a Proposed Program is first approved, the RJV Program will be regarded as the approved Program (GC 32.3(d)).

19.Despite the matters outlined in paragraph 18 above, as at the Commencement Date, and at all material times thereafter, the Program remained part of the Subcontract and was treated as the Program referred to in paragraph 18(e) above. [Formal instrument clauses 2 and 3].
Particulars of subsequent treatment
RJV email (Bick) to BGC (Murphy) 4 December 2013
BGC email (Murphy) to RJV (Bick) 6 December 2013
BGC letter [B-010] to RJV dated 17 March 2014
BGC letter [B-011] to RJV dated 25 March 2014
BGC letter [B-012] to RJV dated 3 April 2014
…
BGC's scope of works

24B.There were terms of the Subcontract that BGC would:
(a)do all things necessary to allow RJV to have the benefit of the Subcontract and to carry out the WUSC in accordance with the program under the Subcontract;
and

(b)carry out or cause to be carried out the work described in the Scope of Works other than the WUSC in a proper and workmanlike manner and in accordance with the Program under the Subcontract.
Particulars
The term pleaded at paragraph 24B(a) is to be implied as a matter of law. The term pleaded at paragraph 24B(b) arises from the proper construction of the Subcontract, and, in particular, from the inclusion of the BGC Scope of Works and the Program in the Subcontract.

24C.In breach of the provisions of the Subcontract referred to in paragraph 24B, BGC failed to carry out the ground improvement works in a proper and workmanlike manner and in accordance with the Program, and as a result:
(a)RJV was inhibited or prevented from carrying out the WUSC; and
(b)RJV was denied the benefit of the Subcontract.
Particulars
The particulars of the breach are referred to in Paragraph 27 below
Method of WUSC

25.Upon the proper construction of the Subcontract, the work in the Stockyard was to be completed in three zones using triple road trains, involving first an east-west pass and then a west-east pass over the Stockyard (the Method). RJV relies upon the following matters:
(a)The circumstances and commercial setting in which the Subcontract was made, and is to be construed, being those referred to in paragraphs 6A and 7A.
(b)BGC's Preliminary Design indicated that the work in the Stockyard was to be completed in three zones; (Attachment 3, drawing 100RH-H315-3211-GT-DRG-2039A).
(c)BGC's Drawing 100 RH-H315-3211-GT-DRG-2038 Rev A was issued to RJV at the time of First Tender;
(d)In the Subcontract, the Program outlined, amongst other things, the WUSC to be performed by:
(i)cutting materials in sequential Lots from the southernmost end of the Subcontract Site and moving north; and
(ii)filling materials in sequential Lots of the Stockyard by:
(A) half-filling the materials working from the easternmost Lots to the westernmost Lots of the Stockyard; and
(B) completing the fill of the materials working from the westernmost Lots and returning to the easternmost Lots of the Stockyard.

(e)The BGC Scope of Works identified the works to be performed by RJV, in so far as those works related to the Stockyard, as bulk earthworks.

25A.In breach of the term in paragraphs 23 and 24B, BGC failed to carry out the ground improvement works in accordance with the Program and thereby prevented RJV from performing the Subcontract in accordance with the Method.
Particulars
Particulars of the breach are referred to in Paragraph 27 below.
…
27A.(i) On 6 May 2013, BGC agreed with, or alternatively promised, RJV that it would consider all genuine claims by RJV regardless of the notice provisions in the Subcontract.
Particulars
BGC's agreement, or promise, (May Assurance) was oral and made on behalf of BGC by John Murphy and John Beattie at a meeting on 6 May 2014 attended by RJV representatives (Anthony Lynch, Matthew Evans and Michael Love) and BGC representatives (John Beattie, John Murphy and Nicky Strozyk).
On 9 May 2014, RJV provided BGC with RJV's minutes of the meeting.
The May Assurance was confirmed by BGC at a subsequent meeting:
A.On 14 May 2014, attended by RJV representatives (Anthony Lynch, Andrew Pilgrim and John Vincent) and BGC representatives (John Beattie, John Murphy and George Serer).

Particulars
The meeting was held at BGC's Osborne Park office and the confirmation was made orally by John Murphy who said words to the effect that BGC would entertain a claim around delay, disruption and out of sequence.

(ii)In reliance on the May Assurance, RJV was willing to proceed and, assuming that BGC would act in accordance with that assurance, acted to its detriment by proceeding, with the WUSC, but for which assurance RJV would have terminated the Subcontract, as it was then entitled to do, for
A.BGC's initial misleading statements referred to in paragraph 6A; or
B.alternatively, for BGC's failure or refusal to perform the Subcontract according to its terms by failing to give any or any sufficient access to the Site for mass fill by road trains as pleaded in paragraph 27(b) hereof.

(iii)By reason of the foregoing:
(1)BGC is or ought to be estopped from relying on any failure by RJV to have given any such notice under the Subcontract.
(2)The BGC Representative was required to give genuine consideration to RJV's claims when assessing them and, in order to do so, was required to do that honestly, bona fide and reasonably.

…
Extensions of Time

29.The matters pleaded in paragraphs 24C, 25A, 27 and 28 above were qualifying causes of delay falling within paragraph (a) of the definition of that expression in GC 1.1 of the Subcontract.
30.As a result of BGC's conduct and failures pleaded in paragraphs 24C, 25A, 27, 27A and 28 above:
(a)progress of the WUSC was delayed, and RJV gave notice of the delay caused and of the facts and matters on which its claims for extensions of time were based, which notices did not however strictly comply with the requirements for notices in GC 34.2, GC 34.3 and GC 41.2, as follows:
Particulars of Notices
(i)RJV letter to BGC, dated 8 April 2013 [R.007];
(ii)RJV letter to BGC, dated 25 April 2014 [R.017];
(iii)RJV letter to BGC, dated 26 April 2014 [R.019];
(iv)RJV letter to BGC, dated 26 April 2014 [R.020];
(v)RJV letter to BGC, dated 6 June 2014 [R.061];
(vi)RJV letter to BGC, dated 9 June 2014 [R.071];
(vii)RJV letter to BGC, dated 23 June 2014 [R.090];
(viii)RJV letter to BGC, dated 23 June 2014 [R.098];
(ix)RJV letter to BGC, dated 27 June 2014 [R.079];
(x)RJV letter to BGC, dated 27 June 2014 [R.100];
(xi)RJV letter to BGC, dated 8 July 2014 [R.109];
(xii)RJV letter to BGC, dated 17 July 2014 [R.128];
(xiii)RJV letter to BGC, dated 25 September 2014 [R.128];
(xiv)RJV letter to BGC, dated 24 October 2014 [R.149];
(xv)RJV letter to BGC, dated 6 December 2014 [R.153].

(b)By reason of the May Assurance referred to in paragraph 27A, the BGC Representative was nevertheless obliged to properly assess RJV's genuine claims for extensions of time and, in doing so, was required to act honestly, bona fide, and reasonably.
(c)RJV became entitled to reasonable extensions of time to the Milestone dates and the Date for Practical Completion referred to in paragraph 16 hereof, to be assessed by BGC's Representative.
(d)The reasonable extensions to the Milestone dates ought to have been assessed as follows:
…

(e)In breach of the Subcontract and, or alternatively, contrary to the May Assurance the BGC Representative failed or refused to -
(1)Assess each claim honestly, bona fide or reasonably, as his assessment was not objectively honest, bona fide or reasonable.

…
Costs

32.As a result of BGC's and the BGC Representative's conduct pleaded in paragraphs 27 and 28 above RJV:
(a)RJV has incurred direct delay costs in the amount of $33,045,965.35 (excluding GST) as at 27 July 2015, as particularised in Schedule 1, which costs are still ongoing, further particulars of which will be provided prior to trial;
(b)further or in the alternative,
(i)RJV has incurred direct costs as a result of complying with the Directions pleaded in paragraph 28 above as particularised in Schedule 1; and
(ii)is entitled to have these costs added to the Subcontract Sum and paid by BGC in accordance with the terms of the Subcontract.

32A.RJV gave written notices of the delaying events referred to in paragraphs 27 and 28 and of RJV's entitlements to extensions of time and costs referred to in paragraphs 30 to 32 (inclusive), which notices did not however strictly comply with the requirements for notices pursuant to GC 34.2, GC 34.3 and GC 41.2.
Particulars
The written notices are those referred to in paragraph 27 and 30.

32B.By reason of the May Assurance referred to in paragraph 27A, the BGC Representative was nevertheless required to properly assess RJV's genuine claims and, in doing so, he was required to act honestly, bona fide and reasonably.
32C.In breach of the Subcontract or alternatively, the May Assurance, the BGC Representative:
(1)failed or refused to assess RJV's claim honestly, bona fide, or reasonably and his assessments were not objectively honest, bona fide or reasonable.
…
(f)Contrary to the May Assurance, the BGC Representative rejected RJV's interim and final claims on the basis that those claims did not formally comply with the notice requirements of the Subcontract. The particulars under paragraphs 30(e)(1)(iii) and (iv) are repeated.
(g)The BGC Representative deflected RJV's complaint, that access to the Site by road trains was not given, by asserting, in relation to quite inferior 'access', that access to unidentified 'parts of the Stockyard' was given, and that RJV had access (of an unspecified kind) which was 'unimpeded', and that 'sufficient work fronts' were provided [B.148].
Further particulars will be given after discovery.

(h)The BGC Representative failed to bring an unbiased or independent mind to his assessment of RJV's claims by routinely and uncritically adopting BGC's assertions in response. The particulars under paragraph 30 are repeated.
(i)The BGC Representative accepted without question and uncritically BGC's claims and assertions, and thereby acted as if he only had the interests of BGC to consider, and thereby misconducted himself in his role as assessor. The particulars under paragraph 30 are repeated.

(2)Failed or refused to grant any or any appropriate extension of time and delay costs.

32DBy reason of the matters in paragraphs 27 to 32C, RJV suffered loss and damage which now should be assessed by the Court.
Damages
33.Further or in the alternative, the conduct pleaded in paragraph 27 constituted breaches of the Subcontract, as a result of which RJV suffered the loss and damage particularised in Schedule 1.
34.Further or in the alternative, by the failure of the BGC Representative to grant the reasonable extensions of time identified in Schedule 1 in respect of the delaying events identified in paragraph 27 and Schedule 1, RJV suffered the loss and damage particularised in Schedule 1 in respect of those delaying events.
35.[Deleted].
36.[Deleted].
37.[Deleted].
38.[Deleted].
39.[Deleted].
40.[Deleted].
41.[Deleted].
Conversion of security

42.RJV provided security to BGC in the amount of $4,583,158.44 in accordance with GC 5.1 by way of two unconditional bonds being:
(a)Bond number 201312-080 issued by Swiss Re International SE for $2,291,579.22 (Swiss Re Bond);
(b)Bond number 9J A000221 BOB 0008 issued by QBE Insurance Australia Pty Ltd or $2,291,579.22 (QBE Bond).

43.On or about 5 June 2015 and 4 June 2015 BGC converted the Swiss Re Bond and the QBE Bond respectively and received payments totalling $4,583,158.44 from Swiss Re and QBE.
44.No part of the $4,583,158.44 was payable by RJV to BGC.
45.In the premises BGC is liable to repay the sum of $4,583,158.44 together with simple interest thereon at the Reserve Bank of Australia Cash Rate Target plus 1%, in accordance with GC 5.2(c) and Item 35 of the General Conditions.
Repudiation by BGC

46.By letter dated 12 May 2015 ('the second purported notice'), BGC purported to give notice under GC 39 requiring RJV to show cause why it should not exercise powers given to it under GC 39.4 on the basis that:
(a)RJV had not reached practical completion and abandoned all or part of the WUSC (which includes reducing resources on Site); and
(b)such conduct affected or was likely to affect the time within which Practical Completion will be achieved.

47.BGC was not entitled to give notice under GC 39 because:
(a)There was no need for RJV's workforce to remain mobilised on Site in order for any remaining work to be completed;
(b)The WUSC had reached practical completion;
(c)The scope of remedial work had been identified by the parties and addressed by RJV as follows:
(i)On 16 February 2015, Mr P Ratnasingam of RJV and Mr R Smyth of BGC met at BGC's site office and identified outstanding works to be completed;
(ii)By email dated 16 February 2015, Mr Ratnasingam recorded the outstanding works to be completed;
(iii)By email dated 23 February 2015, Mr Smyth identified further works BGC considered needed to be completed; and
(iv)RJV completed the works identified by the parties by 12 March 2015;

(d)On 18 February 2015, and again on 12 March 2015, RJV informed BGC that it intended to demobilise from site on 24 March 2015;
Particulars
BGC was so informed by emails dated 18 February 2014 and 12 March 2015.

(e)On 22 February 2015, RJV gave 28 days' notice of practical completion to BGC as contemplated by GC 34.6, and informed BGC that RJV intended to demobilise its workforce on 24 March 2015;
Particulars
Notice was given by letter dated 22 February 2015 from RJV to BGC.

(f)By letter dated 20 March 2015, RJV again requested the issue of a Certificate of Practical Completion;
(g)During the period from 12 March 2015 until 24 March 2015, RJV did not receive from BGC any request to rectify or revisit any of the identified works or any objection to RJV demobilising from Site;
(h)On 24 March 2015, RJV demobilised its workforce; and
(i)BGC failed to:
1.give a certificate of practical completion or reasons for not issuing a certificate of practical completion in accordance with the Subcontract either prior to 24 March 2015 or at all; and
2.object prior to 24 March 2015 to RJV demobilising from site.

48.By letter dated 2 July 2015, BGC purported to exercise rights under GC 39.4(a) to take out part of the WUSC, and to suspend all payments to RJV until that work had been completed.
49.In the premises pleaded in paragraphs 46 and 47 above:
(a)BGC was not entitled to exercise rights under GC 39.4(a) or, alternatively, acted unreasonably in doing so; and
(b)the conduct of BGC pleaded in paragraph 48 was a repudiation of the Subcontract.

50.By letter dated 10 July 2015 RJV accepted BGC's repudiation of the Subcontract, as it was entitled to do.
51.In the alternative to paragraphs 27 to 45 of the statement of claim, RJV says:
(a)the effect of RJV's acceptance of BGC's purported termination of the Subcontract was that it was then avoided;
(b)RJV had carried out the work formerly the subject of the WUSC;
(c)RJV was entitled to be paid a fair and reasonable amount for carrying out that work, on the basis of quantum meruit;
(d)a reasonable sum for performing that work calculated on a quantum meruit basis was $64,913,369.92 (excluding GST) particulars of which are given in schedule 2;
(e)after taking into account payments totalling $29,037,391.03 (excluding GST) paid by BGC on account of the work, it is entitled to payment of $35,955,627.40 (excluding GST); and
(f)it provided the Swiss Re and QBE Bonds to BGC, which BGC converted in circumstances where RJV was not obliged to make any payment to BGC and has been unjustly enriched, at the expense of RJV, in the amount of $4,583,158.44 and, as a consequence, and BGC is obliged to pay that sum to RJV.
Misleading and Deceptive Conduct

52.At all material times, BGC was a corporation within the meaning of the Competition and Consumer Act 2010 and the Australian Consumer Law.
53.The second defendant John Beattie is, and was at all material times
(a)a senior project manager employed by BGC;
(b)a senior project manager experienced in earthworks;
c)employed by BGC as its Deputy Project Director for the Project.

54.On about 9 September 2013, John Beattie informed Anthony Lynch of RJV:
(a) that BGC had been awarded a contract to carry out part of the work (known as Package C) for the Roy Hill project works near Port Hedland; and
(b)that BGC would forward an earthworks package to RJV so that RJV could price those earthworks and submit its tender.

55.On about 2 October 2013, BGC invited RJV to tender for the performance of works in the Bulk Earthworks Package referred to in paragraph 6 hereof (Works).
Particulars
Particulars of the invitation are given under paragraph 6 hereof.
58.On about 9 October 2013, Anthony Lynch and Clinton Bick of RJV met with John Beattie. In the course of that meeting, John Beattie informed them, and represented to them, knowing that they and RJV had no opportunity to inspect the Site and intending that they and RJV would rely thereon, that -
(a)the Works required were bulk earthworks;
(b)the surface and sub-surface conditions in the Stockyard area would present no impediment to access by triple road trains;
(c)the works and in particular those in the Stockyard could be undertaken using thirteen 165 tonne triple road trains;
(d)BGC had themselves calculated that the works and in particular those in the Stockyard could be undertaken using 165 tonne triple road trains;
(e)cutting and filling 26,000 cubic metres per day was readily achievable having regard to the Site and its soil conditions;
(f)there was no requirement for any double handling of material;
(g)the soil was all the same and coming from the same borrow pit;
(h)ground improvement works and geotechnical design were to be done by BGC and were outside RJV's work.
Particulars
The information given, and the representations made, by Mr Beattie were given and made at the meeting of 9 October 2013. They were oral and were in substance to the effect above.

57.On about 18 October 2013 and in reliance upon what John Beattie told Anthony Lynch and Clinton Bick, RJV submitted its First Tender to BGC for the bulk earthworks Subcontract.
Particulars
The First Tender is referred to in paragraph 7 hereof.

58.On about 25 October 2013 Anthony Lynch and Clinton Bick of RJV met with John Beattie and other BGC representatives at BGC's offices. At that meeting Mr Bick presented RJV's proposal for the Subcontract works, and informed Beattie and the other BGC representatives present that RJV would supply 15 triple road trains rather than 13.
59.In reliance on the information and representations referred to in paragraph 56, and the matters discussed on 25 October 2013, RJV on 28 October 2013 revised its tender and submitted another tender, being the Second Tender referred to in paragraph 8 hereof.
60.On 1 November 2013, John Beattie notified Mr Lynch that RJV's revised tender had been successful.
60A.In reliance on the information and representations referred to in paragraph 56, RJV submitted another tender on 18 November 2013, being the Third Tender referred to in paragraph 10A hereof.
61.On 13 December 2013, and in further reliance on the information and representations referred to in paragraph 56, RJV entered into the Subcontract with BGC.
62.In giving the information and making the representations in paragraph 56, John Beattie:
(a)did so in trade or commerce; and
(b)to the extent that they concerned future matters, did so without any or any reasonable basis or grounds; and
(c)engaged in conduct which was misleading or deceptive, in contravention of s 18 of the Australian Consumer Law;
as, when the information was given and when the representations were made, and when the Subcontract was made:
1.the ground improvement works and the geotechnical design had not been carried out or completed by BGC;
2.the sub-surface conditions in the Stockyard area:
a.rendered that area inaccessible by triple road trains for mass fill;
b.required extensive placement of rock and other geotechnical treatment which prevented mass-fill by triple road trains;
c.required double-handling of material to most areas; and
d.prevented the filling of 26,000 cubic metres per day.

63.But for the information given by Beattie and the representations made by him, RJV would not have entered the Subcontract, or any contract with BGC.
64.By reason of John Beattie's contravention of the provisions of the Australian Consumer Law, RJV suffered loss and damage.
Particulars
RJV having proceeded with and substantially completed the Works is entitled to a reasonable sum for that, namely $35,955,627.40, calculated as set forth in paragraphs 51(d) and (e).
RJV is also entitled to repayment of $4,583,158.44 referred to in paragraphs 45 and 51(f).

65.John Beattie also acted on behalf of or with the authority of BGC in giving the information and making the representations referred to in paragraph 56, and BGC thereby also engaged in conduct in trade or commerce which was misleading and deceptive in contravention of s 18 of the Australian Consumer Law, by reason of which RJV suffered loss and damage.
Particulars
The particulars under paragraphs 52 to 63 are repeated.

66.Further, in reliance on BGC's representation referred to in paragraph 6AA, RJV:
(a)submitted its three Tenders to BGC for the bulk earthworks Subcontract; and
(b)entered into the Subcontract with BGC.

67.In giving the information and making the representation in paragraph 6AA, BGC:
(a)did so in trade or commerce; and
(b)to the extent that the concerned future matters, did so without any or any reasonable basis or grounds; and
(c)engaged in conduct which was misleading or deceptive, in contravention of s 18 of the Australian Consumer Law;
as, and when the information was given and when the representation was made, and when the Subcontract was mad:
1.the ground improvement works and the geotechnical design had not been carried out or completed by BGC:
2.the sub-surface conditions in the Stockyard area;
a.rendered that area inaccessible by triple road trains for mass fill;
b.required extensive placement of rock and other geotechnical treatment which prevented mass-fill by triple road trains;
c.required double-handling of material to most areas; and
d.preventing the filling of 26,000 cubic metres per day.

68.But for the information given by BGC and the representation made by BGC referred to in paragraph 6AA, RJV would not have entered the Subcontract or any contract with BGC.
69.By reason of BGC's contravention of the provisions of the Australian Consumer Law, RJV suffered loss and damage.
Particulars
RJV having proceeded and substantially completed the Works is entitled to a reasonable sum for that, namely $35,955,627.40, calculated as set forth in paragraphs 51(d) and (e).
RJV is also entitled to repayment of $4,583,158.44 referred to in paragraphs 45 and 51(f).

AND THE PLAINTIFF CLAIMS against the first Defendant:
1.Damages pursuant to paragraphs 27 and 32 to 34.
2.[Deleted].
3.Payment of $4,583,158.44 pursuant to paragraph 45 hereof or, alternatively damages in that sum.
4.A declaration that the dates for Practical Completion and dates for completion of Milestone Dates are or ought to be as set out in paragraph 30 hereof;
5.Alternatively:
(a)a declaration that the Subcontract was validly terminated by RJV;
(b)payment of $35,955,627.40 (excluding GST) pursuant to paragraph 51(e) hereof or, alternatively, damages in that sum;
(c)payment of $4,583,158.44 pursuant to paragraph 51(f) hereof or, alternatively, damages in that sum.

6.Damages under s 236 of the Australian Consumer Law.

7.Interest on all sums awarded pursuant to section 32 of the Supreme Court Act 1935.
8.Costs.
9.Such further or other relief that this Honourable Court sees fit.
AND THE PLAINTIFF CLAIMS against the Second Defendant:
1.Damages under s 236 of the Australian Consumer Law.
2.Further or other relief.