Rock JV Pty Ltd v Thiess Pty Ltd [No 2]
[2023] WASC 455
•30 NOVEMBER 2023
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| IN CIVIL | ||
| CITATION | : | ROCK JV PTY LTD -v- THIESS PTY LTD [No 2] [2023] WASC 455 |
| CORAM | : HILL J | ||
| HEARD |
| ||
| DELIVERED | : 30 NOVEMBER 2023 | ||
| FILE NO/S |
| ||
| BETWEEN |
|
Plaintiff
AND
THIESS PTY LTD
Defendant
THIESS PTY LTD
Plaintiff by counterclaim
AND
ROCK JV PTY LTD
First Defendant by counterclaim
DARRYL CARLO FERRARA
Second Defendant by counterclaim
| FILE NO/S | : | CIV 2511 of 2016 |
| BETWEEN | : | ROCK JV PTY LTD |
| Plaintiff |
[2023] WASC 455
AND
N.V. BESIX S.A.
First Defendant
THIESS PTY LTD
Second Defendant
N.V. BESIX S.A.
First Plaintiff by counterclaim
THIESS PTY LTD
Second Plaintiff by counterclaim
AND
ROCK JV PTY LTD
First Defendant by counterclaim
DARRYL CARLO FERRARA
Second Defendant by counterclaim
Catchwords:
Contract - Delay in taking products under supply contracts - Proper construction of supply contracts - Whether any obligation under supply contracts to take delivery of products - Whether plaintiff has proved it incurred any 'actual and verifiable costs' which are directly attributable to delay
Contracts - Requirement to give notice of claim - Proper construction of notice provisions in supply contracts - Whether plaintiff complied with notice provisions
Evidence - Admissibility - Expert evidence - Whether factual matters and assumptions on which expert evidence based are proved - Whether expert qualified to give evidence of apportionment
[2023] WASC 455
Contract - Variation of supply contract - Whether plaintiff entitled to two variations of supply contract (in CIV 1439 of 2015) - Whether plaintiff entitled to payment for variation of supply contract (in CIV 1439 of 2015) - Turns on own facts
Contract - Whether defendants (in CIV 2511 of 2016) entitled to convert bank guarantee - Whether plaintiff was entitled to release of bank guarantee - Proper construction of supply contract
Misleading and deceptive conduct - Whether plaintiff made representations about space at Quarry available for stockpiling - Whether plaintiff made representations about the approvals required to operate Quarry - Whether defendants have proved reliance on any representations - Turns on own facts
Contract - Alleged breach of warranty - Whether first defendant (in CIV 2511 of 2016) has suffered any loss - Contention that costs of these proceedings is loss - Turns on own facts
Legislation:
Competition and Consumer Act 2010 (Cth) sch 2, s 18
Environmental Protection Act 1986 (WA) s 51C, s 51J, s 99Q
Mining Act 1978 (WA) s 74, s 74A, s 82, s 99
Result:
Plaintiff's claims in both proceedings dismissed
Defendants' counterclaims in both proceedings dismissed
Category: B
Representation:
CIV 1439 of 2015
Original Action
Counsel:
Plaintiff : Mr M D Howard SC, Mr C P K Russell, Ms P A Honey & Mr S J Taylor
[2023] WASC 455
Solicitors:
Plaintiff : Hopgoodganim Lawyers (Perth) Defendant : Corrs Chambers Westgarth
Counterclaim
Counsel:
Plaintiff by counterclaim : Mr M N Solomon SC & Mr M J Sims First Defendant by counterclaim : Mr M D Howard SC,
Mr C P K Russell, Ms P A Honey &Mr S J Taylor Second Defendant by counterclaim : Mr M D Howard SC,
Mr C P K Russell, Ms P A Honey &Mr S J Taylor
Solicitors:
Plaintiff by counterclaim : Corrs Chambers Westgarth First Defendant by counterclaim : Hopgoodganim Lawyers (Perth) Second Defendant by counterclaim : Hopgoodganim Lawyers (Perth)
CIV 2511 of 2016
Original Action
Counsel:
Plaintiff : Mr M D Howard SC, Mr C P K Russell, Ms P A Honey & Mr S J Taylor
[2023] WASC 455
Counterclaim
Counsel:
First Plaintiff by counterclaim : Ms J K Taylor SC and Ms L D Coci Second Plaintiff by counterclaim : Mr M N Solomon SC & Mr M J Sims First Defendant by counterclaim : Mr M D Howard SC,
Mr C P K Russell, Ms P A Honey &Mr S J Taylor Second Defendant by counterclaim : Mr M D Howard SC,
Mr C P K Russell, Ms P A Honey &Mr S J Taylor
[2023] WASC 455
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA
12; (2017) 261 CLR 544
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15;
(1999) 161 ALR 599
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7;
(2014) 251 CLR 640
FPM Constructions Pty Ltd v Council of the City of Blue Mountains
[2005] NSWCA 340
George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182;
(2016) 313 FLR 287
Goodlen Pty Ltd v BP Australia Pty Ltd [2004] FCAFC 331; (2004) 141 FCR
325
Grubisic v State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Hadley v Baxendale (1854) 156 ER 145; 9 Exch 341
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
JKC Australia LNG Pty Ltd v Ch2M Hill Companies Ltd [No 2]
[2020] WASCA 112
John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798;
(2006) 66 NSWLR 707
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (Unreported, FCA, 29 June
1995)
Lepoidevin v State of Western Australia [No 2] [2021] WASCA 19
Liyanage v State of Western Australia [2017] WASCA 112; (2017) 51 WAR
359
Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014)
NSWLR 633
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
McKay v Commissioner of Main Roads [No 3] [2010] WASC 232
MLW Technology Pty Ltd v May [2005] VSCA 29
National Foods Milk Ltd v McMahon Milk Pty Ltd (No 2) [2009] VSC 150
Nominal Defendant v Cordin [2017] NSWCA 6
Pollock v Wellington (1996) 15 WAR 1
Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Re Media Entertainment and Arts Alliance; Ex Parte The Hoyts Corporation Pty
Ltd [1993] HCA 40; (1993) 178 CLR 379
Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656
Seymour Whyte Constructions v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA
11; (2019) 99 NSWLR 317
TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57;
(1963) 180 CLR 130
[2023] WASC 455
Thiess Watkins White Construction Ltd v Commonwealth (1998) 14 BCL 61
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson
[2019] WASCA 114
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Zurich Australian Insurance Ltd v Fruehauf Finance Corporation Pty Ltd
(1993) 7 ANZ Ins Cas 61-177
[2023] WASC 455
Table of Contents
Introduction ......................................................................................................................... 11
Factual background .............................................................................................................. 13
Delay in judgment ................................................................................................................ 17
Pleadings ............................................................................................................................. 18
CIV 1439 of 2015 ............................................................................................................ 18
CIV 2511 of 2016 ............................................................................................................ 26
Onus, approach to evidence and general observations on credibility ..................................... 37
Onus and standard of proof .............................................................................................. 37
Approach to the evidence ................................................................................................. 37General observations on credibility .................................................................................. 39
Darryl Ferrara............................................................................................................... 40
Kenneth Macleod ......................................................................................................... 46Andre (Andrew) Giammo ............................................................................................. 47
Issues for determination ....................................................................................................... 48
Contract between Rock JV and Thiess ................................................................................. 50
Invitation to tender and tender process ............................................................................. 50
Entry into and terms of Thiess Supply Contract ................................................................ 60
Contract between Rock JV and Best JV ............................................................................... 77
Invitation to tender and tender process ............................................................................. 78
Entry into and terms of Best JV Supply Contract .............................................................. 86
Approvals for the Quarry ..................................................................................................... 92
Performance of the Supply Contracts ................................................................................. 109
Appointment of subcontractors by Rock JV ................................................................... 109
Haul Road ...................................................................................................................... 110
Deliveries under Thiess Supply Contract ........................................................................ 111
Deliveries under Best JV Supply Contract ...................................................................... 114
Change in materials to be provided under the Thiess Supply Contract ............................ 117
Change in materials to be supplied under Best JV Supply Contract ................................ 121
Supply of rock to third parties ........................................................................................ 122Production at the Quarry ................................................................................................ 125
Performance of subcontractors ................................................................................... 134
Availability of equipment ........................................................................................... 135
Performance of crushing circuit .................................................................................. 139
Issues between shareholders of Rock JV..................................................................... 147
[2023] WASC 455
Stockpiling ..................................................................................................................... 148 Progress and other claims under Best JV Supply Contract .............................................. 161
Proper construction of the supply contracts ........................................................................ 162
Legal principles .............................................................................................................. 163
Proper construction of the Thiess Supply Contract ......................................................... 166
Factual matrix for entry into the Thiess Supply Contract and Best JV Supply Contract
................................................................................................................................... 168 Did cl S14.9 form part of the Thiess Supply Contract? ............................................... 170
Was Thiess obliged to take deliveries of rock products under sch 2 and/or sch 18 of theThiess Supply Contract? ............................................................................................. 175
Proper construction of the Best JV Supply Contract ....................................................... 179
Can Rock JV under cl S14.11 of the Best JV Supply Contract only claim for any delay
after 14 April 2013? ................................................................................................... 180
Was Best JV obliged to take deliveries under Annexure A of the Best JV Supply
Contract? .................................................................................................................... 183 Proper construction of cl S14.9 (Thiess Supply Contract) and S14.11 (Best JV Supply
Contract) ........................................................................................................................ 185
Did Rock JV notify Thiess or Best JV of its claims in compliance with the terms of cl 37 of the Thiess Supply Contract or Best JV Supply Contract? .................................................... 188
Legal principles .............................................................................................................. 193
Thiess Proceedings ......................................................................................................... 194
Initial Notice issued by Rock JV to Thiess.................................................................. 195
Initial Notice Particulars ............................................................................................. 200
Continuing Effect Particulars...................................................................................... 202Final Claim by Rock JV to Thiess .............................................................................. 216
Best JV proceedings ....................................................................................................... 218
Initial Notice issued by Rock JV to Best JV................................................................ 219
Initial Notice Particulars ............................................................................................. 222
Continuing Effect Particulars...................................................................................... 223Final Claim ................................................................................................................ 231
Did Rock JV include all of its claims against Best JV in its Statement Upon Acceptance?.. 234
Proper construction of cl 20.14 and sch 7 of the Best JV Supply Contract ...................... 234
Did the Statement Upon Acceptance comply with the Best JV Supply Contract?............ 237
Delay claim ................................................................................................................ 239
Time-related preliminaries.......................................................................................... 242
Claim for time-related preliminaries ................................................................................... 245
Claim for damages under cl S14.9/S14.11 of the supply contracts ...................................... 247
Admissibility of expert evidence .................................................................................... 257
[2023] WASC 455
Legal principles governing admissibility of expert evidence ........................................... 258
What was Rock JV's planned baseline cost? ................................................................... 260
Was the planned baseline cost achievable? ..................................................................... 268
What was the impact of the delay in taking the Initial Deliveries and the Best JV Initial
Delivery? ....................................................................................................................... 287
Were there other causes of increased costs? .................................................................... 290
Did Rock JV make all reasonable efforts to mitigate the costs of the delay? ................... 294
Actual costs incurred by Rock JV ................................................................................... 295
Apportionment of costs .................................................................................................. 310Conclusion ..................................................................................................................... 324
Was Rock JV ready, willing and able to perform its obligations under the Thiess Supply
contract and the Best JV Supply Contract? ......................................................................... 325
Did Rock JV operate the Quarry unlawfully? If so, as a matter of public policy, should
Rock JV be disentitled to damages? ................................................................................... 325
Is Rock JV entitled to be paid for Variation Claims No 1 and No 4?................................... 325
Relevant terms of Thiess Supply Contract ...................................................................... 326
Variation No 1 ............................................................................................................... 329Variation No 4 ............................................................................................................... 332
Was Best JV entitled to convert the Second Bank Guarantee or should this be returned to
Rock JV? ........................................................................................................................... 334
Relevant terms of Best JV Supply Contract .................................................................... 336
Did the Deed comply with the Best JV Supply Contract? ............................................... 338Was Best JV entitled to have recourse to the Second Bank Guarantee?........................... 341
Counterclaims .................................................................................................................... 343
Approval representation and repayment of $525,000 ...................................................... 343
Breach of warranty ......................................................................................................... 345
Conclusion ......................................................................................................................... 345
Annexure A ....................................................................................................................... 347
[2023] WASC 455
HILL J
HILL J:
Introduction
These proceedings arise out of works that were undertaken on the Wheatstone Project (Project) near Onslow in the north-west of Western Australia (Project Site). In March 2012 and December 2011 respectively, Thiess Pty Ltd (Thiess) and the Best Joint Venture (an unincorporated joint venture between Thiess and NV Besix SA (Besix)) (Best JV) entered into separate subcontracts with Bechtel (Western Australia) Pty Ltd (Bechtel), the primary contractor, to undertake certain works at the Project Site. In August 2012, Thiess and Best JV entered into separate supply contracts with Rock JV Pty Ltd (Rock JV) for the supply of rock products for use in these works.
Due to delays in gaining access to the Project Site, both Thiess and Best JV delayed the commencement of delivery by Rock JV of rock products. Over the course of each supply contract, Thiess and Best JV increased the total amount of rock products each required and altered the quantities of particular rock products to be supplied by Rock JV under the supply contracts. In particular, Thiess substantially altered the quantities of particular rock products to be delivered by Rock JV; reducing some to zero and substantially increasing others.
Rock JV says that because of the delays by Thiess and Best JV in taking the initial deliveries of rock products, the stockpiles at the quarry became saturated, resulting in a reduction in productivity and an increase in costs. Rock JV contends the increased costs were caused solely by the actions of Thiess and Best JV in delaying the taking of the initial rock products under the relevant supply contracts. Rock JV seeks payment of $9,325,994, alternatively $6,553,385.03 from Thiess and $1,877,615, alternatively $1,319,287.74 from Best JV.
Rock JV also contends it is entitled to two variations of its supply contract with Thiess totalling $457,109.24, and a payment of $953,167 from Best JV for time-related preliminaries.
Both Thiess and Best JV deny Rock JV is entitled to any further payment. They say, in effect, that Rock JV was the author of its own demise in the choices it made, including in seeking approval for a quarry which did not include sufficient space for it to fulfil its contractual obligations under both supply contracts. They also deny that any of the amounts claimed by Rock JV in these proceedings are 'actual and verifiable costs' which are directly attributable to any delay
[2023] WASC 455
HILL J
in the commencement of deliveries, as required under the relevant
clause of the supply contracts.
In my view, there are four primary difficulties with the claims advanced by Rock JV in these proceedings.
First, Rock JV's claim proceeded on the assumption there was a contractual obligation on each of Thiess and Best JV to remove rock products from the quarry in accordance with the relevant schedules or annexures to the supply contracts. For reasons which are explained below, I do not accept this was the contractual obligation imposed on Thiess or Best JV by the supply contracts.
Second, Rock JV did not establish that it incurred any actual and verifiable costs as a consequence of the delay in taking the initial deliveries. In particular, Rock JV did not discount the probability that a significant portion of its claim arose because of changes made by Thiess and Best JV to the products to be supplied by Rock JV under each of the supply contracts. These changes required significantly more crushing to be done than anticipated at the time of tendering. While I accept these changes in products led to additional costs being incurred by Rock JV, this, by itself, does not mean that Rock JV is entitled to be compensated for any increase in its costs. This is because, as was acknowledged by Rock JV in closing,[1] the supply contracts were both schedule of rates contracts. Thiess and Best JV were entitled to alter, without cost, the rock products they required.
Third, under the terms of each of the supply contracts, where there was a delay in taking the initial deliveries under each contract for more than an agreed period, Rock JV was entitled to be reimbursed for its 'actual and verifiable costs' that were 'directly attributable' to the delay. Rock JV sought to prove its claim by reference to what it contended its costs should have been against the costs that it, in fact, incurred. For the reasons set out below, I am not satisfied that Rock JV has proved any of the costs it claims fall within this contractual description.
Fourth, and in any event, Rock JV did not comply with the notice provisions of the supply contracts. Under the express terms of each of the supply contracts, as a consequence, any claim Rock JV had against either Thiess or Best JV is barred.
[2023] WASC 455
HILL J
Accordingly, it is my view that Rock JV's claims in both proceedings should be dismissed.
Both Thiess and Best JV brought counterclaims against Rock JV. These claims were largely defensive and, as a result of my conclusion on Rock JV's claim, fall away. In so far as the counterclaims seek relief beyond this, it is my view that these claims should also be dismissed.
The detailed reasons for these conclusions are set out below.
Factual background[2]
Chevron engaged Bechtel as its primary contractor for the Project. On 21 December 2011, Bechtel and Best JV entered into a contract for the design, procurement and construction of marine facilities (the combined Material Offloading Facility and Breakwater) (Best JV Head Contract).[3]
Subsequently, on 30 March 2012, Bechtel and Thiess entered into a contract for the site clearing and preparation works for the Project (Thiess Head Contract).[4]
Both Thiess and Best JV issued invitations to tender for the supply of rock products for these contracts on 24 April 2012 (Best JV)[5] and 2 May 2012 (Thiess).[6]
Rock JV submitted responses to both tenders on 8 May 2012 (to Best JV),[7] and 21 May 2012 (to Thiess).[8] Rock JV proposed to supply products from a quarry located on mining lease M08/272[9] and miscellaneous licence L08/72 (Quarry).[10] In its response to the Thiess tender, Rock JV offered a discount of $2 per tonne to Thiess if it was awarded both subcontracts.[11] In its response to Best JV, Rock JV did not price the specific discount it proposed but indicated its preparedness to negotiate a discount in the event it was awarded both supply contracts.
[2023] WASC 455
HILL J
Between May and August 2012, Rock JV negotiated with each of Thiess and Best JV in respect of the pricing and other matters concerning the proposed supply contracts.
On 3 August 2012, Rock JV and Best JV entered into a supply contract titled 'Supply Contract (Major) Without Installation' (Best JV Supply Contract).[12]
On 3 August 2012, Thiess and Rock JV agreed to amend the definition of 'Place for Delivery' under the proposed supply contract from 'Site' to 'Quarry'.
On 20 August 2012, Rock JV and Thiess entered into a supply contract also titled 'Supply Contract (Major) Without Installation' (Thiess Supply Contract).[13] In addition to the supply of rock products, Rock JV was also obliged to construct a haul road on local road 7912 (Haul Road).
On 21 October 2012, Rock JV commenced production of rock products for both supply contracts.[14]
On 5 November 2012, Thiess advised Rock JV that there was a delay in taking rock products and that delivery was now scheduled to commence on 19 November 2012. On 25 November 2012, Thiess advised of a further delay and that deliveries were now expected to commence on about 5 December 2012.
On 16 November 2012, Rock JV gave an initial notice to Thiess of a claim for increased costs as a result of the delay in taking any material under the Thiess Supply Contract.[15] This claim was rejected on 20 November 2012.[16]
On about 6 December 2012, the Haul Road was completed. Prior to this, the Haul Road was able to be used from 19 October 2012, using a secondary intersection.[17]
On 16 December 2012, Thiess took delivery of rock products for the first time when Rock JV loaded rock products onto trucks controlled by Thiess at the Quarry.
[2023] WASC 455
HILL J
On 21 December 2012, Rock JV requested (under cl S14.9(e)) that Thiess adjust sch 2 of the Thiess Supply Contract to account for the delay in taking these initial deliveries.18 Thiess rejected this request on two grounds: first, the clause referred to by Rock JV did not apply, and second, the notice did not comply with the requirements of the Thiess Supply Contract.[19]
By 31 December 2012, Rock JV had stockpiled 173,545 tonnes of rock products for supply to Thiess at the Quarry.
As at 3 April 2013, Rock JV had loaded 112,727 tonnes of rock products onto trucks controlled by Thiess at the Quarry.
On 1 May 2013, by letter dated 30 April 2013, Rock JV gave an initial notice to Best JV of its claim arising from the delay by Best JV in taking its initial delivery,[20] as well as a notice seeking an extension of time.[21] On 4 May 2013, Rock JV informed Best JV it was unable to give full particulars of its claim or quantify the claim as the delay was ongoing.[22]
On 3 June 2013, Rock JV made its first delivery of rock products to Best JV at the Project Site and on 7 June 2013, made its first delivery of rock products under the Best JV Supply Contract.[23] By 27 July 2012, Rock JV had delivered 46,674 tonnes of rock products to Best JV at the Project Site.[24]
In July 2013, the stockpile of rock products for supply to Thiess at the Quarry peaked at 358,418 tonnes.[25]
On a number of occasions between November 2012 and July 2013, Thiess advised Rock JV of various changes to the quantities and types of materials it required.
Between 23 August 2013[26] and May 2014,[27] Thiess issued various
change orders to Rock JV.
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HILL J
On 18 October 2013, Rock JV submitted its final particulars to Best JV of both its claim for an extension of time as well as for the additional costs it said it incurred from the delay in taking the initial delivery under the Best JV Supply Contract.[28] Rock JV's claim for additional costs was rejected by Best JV on 29 October 2013.[29] On 16 January 2014, by letter dated 15 January 2014, Best JV granted Rock JV an extension of time until 30 June 2014 for the delivery of 665,121 tonnes of rock products under the Best JV Supply Contract.[30]
On 29 May 2014, Rock JV completed the final load out of rock products under the Thiess Supply Contract.[31]
On 7 June 2014, Thiess issued a certificate of acceptance to Rock JV. The certificate assessed the final date for delivery under the Thiess Supply Contract as being achieved on 29 May 2014.[32] On 26 June 2014, Rock JV submitted to Thiess a 'Schedule 7 Form of Statement Upon Acceptance'.[33]
By 11 June 2014, Rock JV had delivered 543,700 tonnes of rock products to Best JV at the Project Site.[34]
On 19 August 2014, Rock JV completed its final delivery of rock products to Best JV at the Project Site.
On 1 October 2014, Best JV issued a Certificate of Acceptance to Rock JV. The certificate assessed that the final date for delivery under the Best JV Supply Contract was achieved on 19 August 2014.[35] On 10 October 2014, Rock JV submitted to Best JV a 'Schedule 7 Form of Statement Upon Acceptance'.[36]
Following the issue of these documents, negotiations took place between the parties in relation to the issues between them as required by the terms of the supply contracts. No resolution was reached.
On 26 March 2015, Rock JV issued proceedings against Thiess, being proceedings CIV 1439 of 2015, and on 1 September 2016, issued proceedings against Best JV, being proceedings CIV 2511 of 2016.
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HILL J
On 29 September 2017, Best JV gave notice to Rock JV that it had, pursuant to cl 19.3 of the Best JV Supply Contract, had recourse to the second bank guarantee provided by Rock JV under the contract.[37]
Delay in judgment
The hearing of this matter took place in April and May 2021. It has not been possible to complete the reasons for my decision as quickly as I would have liked.
Part of the reason for the delay in publishing my reasons for decision was the quantity of material that was tendered at trial, particularly in relation to the expert evidence adduced by the parties. Regrettably, over its history, this litigation has consumed very significant resources of all parties as well as the court.
Senior counsel who appeared for each of the parties at trial attempted to identify the essential factual and legal issues in dispute and, where possible, to limit the evidence that was required to be adduced. Notwithstanding these attempts, the trial ran for 24 days (and was only limited to this length because the defendants elected to call almost no lay evidence) and produced transcript which ran to approximately 2,700 pages. Almost 10,000 documents were admitted in evidence.
The expert evidence adduced at trial was lengthy and, on occasions, difficult to follow. There were two notable aspects of the expert evidence. First, as set out below, significant amounts of the expert evidence did not contain admissible statements of opinion. Second, during the course of the trial, as a result of the oral evidence of one of the experts called on behalf of Rock JV, shortly prior to the completion of the evidence, Rock JV sought to amend its claim. In closing submissions, counsel for Rock JV sought to alter the basis upon which its claim was calculated and contended that expert evidence was not, in fact, required. These matters only added to the complexity of the issues which required determination and the time required to address these matters properly.
In order to ensure my ability to properly assess the parties' cases and the evidence that was given at trial has not been impaired by the delay between the hearing and the publication of these reasons, I have taken the following steps.
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HILL J
First, I continued to have a clear impression of the evidence given by Mr Ferrara, the principal witness called by Rock JV. Mr Ferrara gave evidence in person over ten days and was subjected to lengthy cross-examination by senior counsel for both Thiess and Besix. During the trial, I made contemporaneous notes of his evidence and my observations of him as a witness. My assessment of him has been assisted by my review of these notes, my review of the transcript, as well as the documents that were tendered in evidence. I have also re-listened to portions of the oral recordings of his evidence.
Second, I also continued to have a clear impression of the evidence given by each of the expert witnesses called by the parties. Each of the experts gave evidence in person concurrently and were subjected to detailed questioning by the court as well as counsel for each of the parties. During the trial, I made contemporaneous notes of the evidence of each of the experts and my observations of them as witnesses. In assessing their evidence, I have reviewed my notes, the transcript of their evidence, their reports, the joint memorandums of the expert conclaves, and the documents that were tendered at trial. I have also re-listened to portions of their evidence.
Third, I had the benefit of detailed written and oral closing submissions from senior counsel and counsel for each of the parties. Each of them made submissions on the evidence given by the witnesses. In addition, the defendants specifically addressed the findings of credibility that each contends should be made.
Fourth, my conclusions as to the credit and reliability of the witnesses are primarily based on the internal consistency of the evidence that each witness gave, the consistency of their evidence with contemporaneous records, and the facts that were objectively established.
Pleadings
CIV 1439 of 2015
Rock JV commenced proceedings against Thiess on 26 March 2015 by writ of summons, endorsed with a statement of claim (Thiess Proceedings). Between March 2015 and June 2020, Rock JV amended its claim on six occasions. Leave to further amend its claim was sought and obtained during the course of the trial.[38] The amendments at trial
[2023] WASC 455
HILL J
reflected the position advanced by senior counsel in opening that Rock JV did not press its claims for two variations, described in the statement of claim as variation no 5,[39] and the sand variation claim.[40] The statement of claim relied upon by Rock JV during its closing address was the further amended second substituted statement of claim (Thiess statement of claim).
Thiess also amended its defence on numerous occasions prior to trial and filed its final defence (in answer to Rock JV's amended pleading) during the course of the trial. The defence relied upon by Thiess during its closing address was the fifth further amended substituted defence and counterclaim dated 10 May 2021 (Thiess defence and counterclaim (1439/2015)).
Rock JV's claim against Thiess, in so far as the pleadings are concerned, is relatively straightforward.
Rock JV says that under the Thiess Supply Contract, Rock JV agreed to supply and load out onto Thiess-controlled trucks rocks and sand (Goods) quarried by Rock JV on the terms of that contract.
Rock JV says that, on the proper construction of the Thiess Supply
Contract:
(a)
Thiess agreed to pay Rock JV approximately $54.8 million (ex GST), or such other amount as constituted by operation of the Thiess Supply Contract and the Schedule of Rates (Contract Sum);
(b)
Rock JV was required to supply Goods of the types specified in the Schedule of Rates to Thiess at Rock JV's Quarry;
(c)
the quantities and types of Goods to be supplied to Thiess each month between October 2012 and December 2013, which, pursuant to cl S14.9(a), Thiess was required to take delivery of, were set out in the delivery schedule contained in item 6 of sch 2 (Delivery Schedule), and sch 18;
(d)
pursuant to cl S14.9(c), Thiess was required to issue a notice to Rock JV by no later than 60 days prior to 22 September 2012 specifying when Rock JV was to commence deliveries and the
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HILL J
due date for the quantities specified in the Delivery Schedule to
be delivered in October 2012;
(e) pursuant to cl S14.9(b), the quantities and types of Goods specified in the Delivery Schedule for delivery in October and November 2012 (Initial Deliveries) could, at the election of Thiess, be delivered later, but not later than 45 days from the end of October 2012; (f) pursuant to cl S14.9(d), if Thiess took or required delivery of the Initial Deliveries by no later than 45 days from the end of October 2012, the quantities and delivery dates would be adjusted and Rock JV was not entitled to payment of any delay costs; and (g) pursuant to cl S14.9(e), if Thiess took or required delivery of the Initial Deliveries later than 45 days from the end of October 2012, the quantities and delivery dates in the Delivery Schedule would be adjusted and Rock JV was entitled to reimbursement of its actual and verifiable costs, including delay costs directly attributable to the delay, provided that Rock JV had made all reasonable efforts to mitigate the costs of the delay.
Rock JV says that Thiess failed to issue a notice to Rock JV by no later than 60 days prior to 22 September 2012, did not take delivery of any of the Initial Deliveries in October or November 2012 and did not take delivery of the whole of the Initial Deliveries until 3 April 2013, which is pleaded to be a delay of 154 days. During these 154 days, Thiess also changed the composition of the types of Goods making up the Initial Deliveries from that specified in the Delivery Schedule.
Rock JV pleads that by reason of the delay of 154 days, it incurred costs of production in excess of the costs that otherwise would have been incurred. These costs are pleaded to be the costs of maintaining and operating the Quarry, a reduction in the productivity of its equipment and labour force, as well as increased costs. Rock JV says that these increased costs amount to $14,587,718. Rock JV pleads that this amount should be attributed 'as set out in the Barnard Further Report dated 18 May 2020 and the Systech Further Report dated 28 May 2020' to Thiess, Best JV and Rock JV as follows: Thiess - $9,325,994; Best JV - $1,877,615; and Rock JV - $3,384,109.
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The Thiess statement of claim includes an alternative calculation of the delay costs, based on what are described as the increased costs of production. These costs are said to arise from a reduction in the productivity of its equipment and labour because of the increase in equipment and labour hours required to produce each tonne of product. Rock JV says these increased costs amount to $10,250,876, which should be attributed 'as set out in the Barnard Further Report dated 18 May 2020 and the Systech Further Report dated 28 May 2020' as follows: Thiess - $6,553,385.03; Best JV - $1,319,287.74; and Rock JV - $2,378,203.23.
Under both calculations, Rock JV contends it incurred these costs as well as financing costs of $388,144.37, despite taking all reasonable efforts to mitigate the costs of delay.
Rock JV also pleads it is entitled to two variations of the Thiess Supply Contract. The first (Variation No 1) arises from change order 1 given on 23 August 2013 which varied the types of Goods to be supplied under the Thiess Supply Contract. Rock JV pleads that, as a result of this change, its production costs were increased by $438,367.25. These costs are particularised by reference to Appendix K of the Systech Further Report dated 28 May 2020.
The second variation (Variation No 4) arises from a change order given on 22 February 2014 which varied the quantities of Goods to be provided under the Thiess Supply Contract. The variation is pleaded to have led to an overall increase of approximately 132,297 tonnes at an anticipated additional cost of $2,577,356.75. Thiess subsequently, on 4 March 2014 and then on 6 and 10 March 2014, informed Rock JV that it was decreasing its order by 45,000 tonnes. Rock JV says that it incurred costs of $18,741.99 as wasted expenditure. These costs are particularised by reference to Appendix L of the Systech Further Report dated 28 May 2020.
Rock JV seeks payment of its 'costs, loss and damage' for delay and for the variations, alternatively damages for breach of the Thiess Supply Contract, together with interest.
Particulars were requested and provided by Rock JV, including as to the basis on which the costs claimed by Rock JV of the statement of claim were 'actual and verifiable costs'.
Relevantly, these particulars make plain that in calculating the costs set out at [59], Rock JV relied on:
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(a) the expert report of Systech for the calculation of its actual costs; (b) a document described as 'Attachment 12 to the witness statement of Darryl Ferrara', which was verified by Systech, for the calculation of the 'would have been' costs; (c) the opinion of Mr Barnard in relation to the reduction of productivity; and (d) the expert report of Systech together with the Quantum joint expert report for the attribution of costs between the parties.
In relation to the alternative calculation of the costs set out at [60], the particulars refer to:
(a) the evidence of Mr Ferrara in respect of its planned production; (b) the expert evidence of Mr Barnard as to when the planned tonnages were produced; (c) the expert evidence of Systech for the calculation of costs; and (d) the expert report of Systech together with the Quantum Joint Expert Report for the attribution of costs between the parties.
In the Thiess defence and counterclaim (1439/2015), Thiess denies that it breached the Thiess Supply Contract or that Rock JV is entitled to be paid any further amount.
Thiess pleads that prior to entry into the Thiess Supply Contract,
Rock JV:41
(a)
knew the quantities of Goods to be supplied under the Thiess Supply Contract could change and had already changed;
(b) had already entered into the Best JV Supply Contract; (c)
planned to produce material in advance of the request for delivery of Goods which required large amounts to be stockpiled at the Quarry; and
(d)
knew the Quarry was intended to supply multiple customers of Rock JV and not just Thiess and Best JV.
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In relation to the terms of the Thiess Supply Contract, Thiess denies the express terms included those referred to at [57] above. Thiess says that, on a proper construction of the Thiess Supply Contract, cl S14.9 did not create any rights or impose any obligation on the parties.42
Thiess says that under the Thiess Supply Contract:[43]
(a) it was entitled to direct Rock JV to increase or decrease the quantity of Goods, omit any part of the Goods and make changes to the character, quality and performance of the Thiess Supply Contract or its schedule; and (b) Rock JV was entitled to be paid a lump sum for the establishment of site facilities and mobilisation of equipment as well as the agreed rates of Goods set out in the Schedule. Where a rate was agreed for a particular item, this rate applied to all amounts of that item which were supplied by Rock JV under the Thiess Supply Contract, determined by weight. These rates were not subject to any rise in the costs of Rock JV, who assumed all liabilities, obligations and risks associated with the Thiess Supply Contract.
In these circumstances, Thiess pleads it is not liable to Rock JV for any changes made in the types or quantities of Goods supplied under the Thiess Supply Contract.
Thiess does not accept it was required to give notice of when it would take the Initial Deliveries. If it was, it denies that any failure to give notice caused Rock JV to incur any additional costs. This is for two primary reasons: first, Rock JV failed to produce and stockpile a sufficient supply of Goods to enable it to achieve any efficiency that was assumed in tendering for the work; and second, these additional costs or losses were not caused by Thiess. Thiess says that any losses were caused by Rock JV having insufficient stockpiling space at the Quarry, the inability of its subcontractors to meet the required levels of production, breakdowns in equipment, and issues with the Goods.
In addition to these matters, Thiess also says that Rock JV cannot maintain any claim under the Thiess Supply Contract because the appropriate notices were not given under cl 37 of the Thiess Supply
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Contract. The Thiess Supply Contract required Rock JV, if it wanted to seek any additional payment arising from a direction to vary the Goods or work to be supplied, to give notices and submit claims to Thiess within specific timeframes. Where this was not done, which it says was the case, Thiess had no liability for any claim.
Thiess also says that Rock JV was required to comply with all relevant laws and obtain all necessary licences and approvals required for the performance of its obligations under the Thiess Supply Contract. Thiess says that Rock JV did not obtain the necessary approvals for the upgrade works to the Haul Road, cleared approximately 28.35 ha of native vegetation when it only had approval to clear 11.8 ha, and, as a result, breached the approvals obtained from the Department of Mines and Petroleum (DMP) for the Quarry. Thiess pleads that Rock JV only obtained a licence which enabled production at the Quarry on 15 November 2012 and could only lawfully commence production on that date.
Thiess pleads that Rock JV was required to construct an 18 km stretch of road (the Haul Road) in accordance with all applicable laws, within 10 weeks of the award of the Thiess Supply Contract. Where this did not occur, Thiess was entitled to deduct $11.90 per tonne from the amount payable for each of the materials listed in the Schedule of Rates. Thiess pleads that the Haul Road was not completed until the end of November 2012 and that, as a result, supply under the Thiess Supply Contract could not have commenced until 6 December 2012.
In relation to the variation claims, Thiess denies any liability to Rock JV for these variations for several reasons, including the failure to give notice under cl 12.9, non-compliance with cl 37, and that the variations did not cause the additional costs or loss as alleged.
In its reply,[44] Rock JV denies it failed to give notice of its claims as required by the Thiess Supply Contract. Rock JV says that initial notices were given on 21 December 2012, alternatively on 16 November 2013, and that it advised Thiess monthly that it maintained its claim for delay. Rock JV says it was unable to properly quantify its delay until December 2013, and that the effects of the delay did not cease until about 10 August 2014. Rock JV pleads that, on a proper construction of the Thiess Supply Contract, it was required to submit its final claim by 7 September 2014, alternatively 26 June 2014,
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and that between December 2013 until 26 June 2014, Rock JV provided
Thiess with particulars of its delay claim.
In relation to the allegations concerning the approvals for the Quarry, Rock JV admits that it cleared native vegetation over and above 11.8 ha but says this was required because of Thiess' delay in taking Goods under the Thiess Supply Contract.
In respect of the contention regarding Thiess' alleged entitlement to deduct $11.90 per tonne from the amounts paid to Rock JV, Rock JV pleads this is an unenforceable penalty, alternatively was only enforceable if Thiess was not able to use the Haul Road, which was not the case. This claim was not pressed by Thiess at trial and accordingly, it was unnecessary to deal with this matter.
Thiess filed a counterclaim against Rock JV as well as Mr Ferrara personally. The counterclaim concerns two matters described as the stockpile representation and the approval representation. Both representations are said to be conduct which is misleading or deceptive contrary to s 18 of sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). The claim against Mr Ferrara is advanced on the basis that he personally made the pleaded representations, alternatively that he was knowingly involved in the representations made by Rock JV.
In relation to the stockpile representation, Thiess pleads that Mr Ferrara represented to Thiess in writing on or about 17 July 2012, and repeated on 26 July 2012, that the then approved area of the Quarry was large enough to undertake all work it had tendered for with both Thiess and Best JV. Thiess says there were no reasonable grounds for this representation and that if Thiess is found to be liable to Rock JV for any increased costs, any such loss will have been caused by this misrepresentation.
The approvals representation is pleaded to arise from an inferred representation that Rock JV had all necessary approvals to conduct operations at the Quarry, including the construction of the Haul Road. Thiess says this representation was false and there were no reasonable grounds for making it. Thiess pleads that two losses arose from this representation: first, it paid a contingency sum of $525,000 to Rock JV under the Thiess Supply Contract, and second, any amount it is liable to pay Rock JV in these proceedings.
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Separate defences were filed by Mr Ferrara[45] and Rock JV to the counterclaims. While these parties admit sending the emails relied upon for the stockpile representation, they deny that any representations were made in the terms pleaded. In the alternative, they contend there were reasonable grounds for any representation on the basis that if Thiess and Best JV had taken delivery of Goods in accordance with the terms of their respective supply contracts, there would have been sufficient space at the Quarry for stockpiling without the requirement to clear an additional 10 ha.
In respect of the approvals representation, Mr Ferrara and Rock JV deny Rock JV did not have all necessary approvals, as required under the Thiess Supply Contract, and that they only became aware of any breach on receipt of a letter from Mr Wiley of the DMP to Mr Luff dated 19 February 2013.
Both Rock JV and Mr Ferrara deny that Thiess is entitled to the relief sought or any relief at all.
CIV 2511 of 2016
Rock JV commenced proceedings against Best JV on 1 September 2016 by writ of summons, endorsed with a statement of claim (Best JV Proceedings). Between September 2016 and June 2020, Rock JV amended its claim on six separate occasions. Leave to further amend its claim was also sought and obtained during the trial.[46] The statement of claim relied upon by Rock JV during its closing address was the further amended substituted statement of claim filed 7 May 2021 (Best JV statement of claim).
Initially, the defendants were represented by one set of solicitors, and a defence and amended defence were filed on behalf of both defendants. In July 2018, each member of Best JV appointed their own solicitors. From that date, Thiess and Besix filed separate defences to Rock JV's claims, as well as separate counterclaims. Each of these parties amended their defences on numerous occasions prior to trial and filed their final defences (in answer to Rock JV's amended pleading) during the trial. The defence relied upon during closing addresses by Besix was its third further amended substituted defence dated 10 May 2021 (Besix defence) and by Thiess was its sixth further amended substituted defence and counterclaim dated 11 May 2021 (Thiess
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defence and counterclaim (2511/2016)). The final counterclaim relied upon by Besix was the further amended substituted counterclaim dated 26 February 2021 (Besix counterclaim).
Rock JV's pleaded claim against Best JV raises similar claims to those pleaded against Thiess in the Thiess Proceedings.
Rock JV says that under the Best JV Supply Contract, Rock JV agreed to supply and deliver to Best JV rock and gravel (Best JV Goods) quarried by Rock JV.
Rock JV says that on the proper construction of the Best JV Supply Contract:
(a)
Best JV agreed to pay Rock JV approximately $40.4 million (ex GST), or such other amount as constituted by operation of the Best JV Supply Contract and the Schedule of Rates;
(b)
Rock JV was required to supply and deliver to Best JV, at the Project Site, Best JV Goods of the types specified in Annexure B;
(c)
Rock JV was required to commence delivery of the Best JV Goods to Best JV at the Project Site from February 2013 in the quantities and at the time specified in the delivery schedule at Annexure A of the Best JV Supply Contract (Best JV Delivery Schedule) and Best JV was required to take delivery of the Best JV Goods each month from February 2013 to February 2014;
(d)
pursuant to cl S14.11(c), Best JV was required to issue a notice to Rock JV by no later than 90 days prior to 1 February 2013 specifying when Rock JV was to commence deliveries and the due date for the quantities specified in the Best JV Delivery Schedule (of 46,674 tonnes) to be delivered in February 2013 (Best JV Initial Delivery);
(e)
pursuant to cl S14.11(b), Best JV could elect to take delivery of the Best JV Initial Delivery up to 45 days later, that is by 14 April 2013; and
(f)
pursuant to cl S14.11(e), if Best JV took delivery of the Best JV Initial Delivery later than 45 days from the end of February 2013, the quantities and delivery dates in the Best JV
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Delivery Schedule would be adjusted and Rock JV was entitled to reimbursement of its actual and verifiable costs, including delay costs directly attributable to the delay, provided that Rock JV had made all reasonable efforts to mitigate the costs of the delay.
Rock JV says that Best JV was not able to take delivery of any of the Best JV Goods or the Best JV Initial Delivery by 14 April 2023 and did not take any deliveries until 7 June 2013 or the total amount of the Best JV Initial Delivery until 31 July 2013.
Rock JV pleads that there were three consequences of the delay by Best JV. First, the target date for the Best JV Initial Delivery should have been extended to 31 July 2013. Second, the dates for delivery in the Best JV Delivery Schedule should have been extended so the end date became 31 July 2014, and third, delivery of 1,876,973 tonnes (Initial Contracted Tonnages) was not achieved until 11 June 2014.
Rock JV says that as a result of the delay, it incurred ongoing time-related expenses of $5,426,092 of which only $4,292,925 has been paid. The ongoing expenses comprised daily fees for quarry facilities and services ($5,731 per day), quarry works management ($917 per day), and NATA testing requirements ($562 per day).
Rock JV pleads that by reason of the delay, it also incurred production costs in excess of the costs that otherwise would have been incurred. These pleaded costs are identical to those pleaded in the Thiess Proceedings apart from the additional claim for time-related preliminaries for the extended supply period set out at [94] above.
The Best JV statement of claim also includes an alternative calculation of the delay costs, namely for increased costs of production. These pleaded costs are identical to those pleaded in the Thiess Proceedings apart from the additional claim for time-related preliminaries for the extended supply period as set out at [94] above.
Under both calculations of its claim for damages, Rock JV contends it incurred these costs despite taking all reasonable efforts to mitigate the costs of delay.
Rock JV also pleads that Best JV converted one of the bank guarantees it lodged pursuant to the terms of the Best JV Supply Contract. Specifically, Rock JV pleads that:
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(a) pursuant to cl 19.1 of the Best JV Supply Contract, Rock JV lodged two bank guarantees with Best JV, each for 5% of the contract sum or $2,020.718.24; (b) under cl 19.3, Best JV was only entitled to have recourse to a bank guarantee when it was entitled to exercise a right under the Best JV Supply Contract against Rock JV; and (c) pursuant to cl 19.4.2, the second bank guarantee, an unconditional bond issued by Assetinsure on 23 August 2012 (Second Bank Guarantee), was to be released within 30 days of the submission by Rock JV to Best JV of the deed of release and waiver in accordance with cl 20.17.
Rock JV says that it provided a deed of release and waiver to Best JV on 19 September 2016, which excluded a release and discharge of the claims included in the Statement Upon Acceptance and the claims in CIV 2511 of 2016. It pleads that on or about 25 September 2017, Best JV converted the Second Bank Guarantee, when there was no relevant default under the Best JV Supply Contract.
Rock JV seeks damages for the conversion of the Second Bank Guarantee (together with interest of 10% per annum) and for delay, alternatively damages for breach of the Best JV Supply Contract, together with interest.
Particulars were requested and provided by Rock JV including as to the basis on which the costs claimed by Rock JV in the Best JV statement of claim were calculated and were 'actual and verifiable costs'.
In relation to the alternate claims for damages for delay costs, the particulars essentially duplicate the particulars provided in the Thiess statement of claim.
Both Besix and Thiess deny there has been any breach of the Best JV Supply Contract or that Rock JV is entitled to be paid any further amount. The defences filed by each of them are broadly consistent with each other, as well as Thiess' defence to the Thiess Proceedings.
Besix and Thiess deny the Best JV Supply Contract included the terms set out at [91] above, apart from [91](b) and [91](c). They say that under the Best JV Supply Contract:
[2023] WASC 455
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(a) the amount to be paid to Rock JV was approximately $40.4 million (ex GST) as adjusted under the terms of the Best JV Supply Contract or such other amount as agreed or determined by Best JV; (b) there was a degree of uncertainty surrounding the initial access date of the Best JV to the Project Site due to permit approvals and/or the schedule; (c) at the date of the Best JV Supply Contract, the total tonnage of Best JV Goods to be delivered to the Project Site at the end of February 2013 was set out in Annexure A to the Best JV Supply Contract, although this (which is the Best JV Initial Delivery) could be moved up to 45 days to 14 April 2013 and the quantities and delivery dates would be adjusted accordingly; (d) the date for the commencement of delivery of Best JV Goods and for the Best JV Initial Delivery would be determined by the issue of a notice by Best JV; (e) if the Best JV Initial Delivery was required after 14 April 2013, Rock JV would be entitled to reimbursement of its actual and verifiable costs that were directly attributable to the delay after 14 April 2013, provided Rock JV had made all reasonable efforts to mitigate these costs; (f) Best JV could alter any aspect of the timing of the work or the duration and sequencing of the work. Where this occurred, Rock JV was required to amend the supply program under the Best JV Supply Contract and comply with all timing requirements; (g) Best JV could also change the date or place for delivery under the Best JV Supply Contract; (h) Best JV was not liable for any damage caused or contributed to by Rock JV, their subcontractor or any officer, employee or agent;
(i) Rock JV represented that it had the necessary skill and personnel to supply the Best JV Goods which conveyed that it had the necessary skill and equipment for storage and stockpiling;
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(j) Rock JV assumed all risks in relation to any unforeseen difficulties or costs; (k) the rates under the Best JV Supply Contract were firm and not subject to adjustment for rise and fall in costs except as provided in the Best JV Supply Contract; and (l) a lump sum was payable for the provision of time-related preliminaries.
On the pleadings, there was a factual dispute between Rock JV and Thiess and Besix as to whether deliveries commenced on 7 June 2013 (as contended by Rock JV) or 3 June 2013 (as pleaded by Besix and Thiess) and whether completion of the Best JV Initial Delivery occurred on 31 July 2013 (as pleaded by Rock JV) or 27 July 2013 (as contended by Besix and Thiess). Ultimately, it was accepted at trial that while there were deliveries prior to 7 June 2013, these were not deliveries of Best JV Goods under the Best JV Supply Contract, but delivery of uncontracted rock products.[47]
Besix and Thiess say they kept Rock JV informed of the changes to the time of and commencement of deliveries under the Best JV Supply Contract and granted an extension of time for the delivery of 665,121 tonnes of Best JV Goods to 30 June 2014. They contend that Rock JV was not able or willing to provide delivery in accordance with the Best JV Delivery Schedule and/or consistently with its obligations under other contracts, including the Thiess Supply Contract.
In addition to these matters, Besix and Thiess also say that Rock JV cannot maintain any claim under the Best JV Supply Contract because the appropriate notices were not given under the contract. The Best JV Supply Contract required Rock JV, if it wanted to seek any additional payment arising from a direction to vary the Goods or work to be supplied, to give notices and submit claims to Best JV within specific timeframes. Where this was not done, which they say was the case, Best JV had no liability for any claim.
Both Besix and Thiess plead that where a claim arose prior to the provision by Rock JV of a Statement Upon Acceptance, the claim needed to be included in the Statement of Outstanding Claims, failing which Best JV could plead this as a bar to any claim. In this case, Besix and Thiess say that Rock JV's claims under cl S14.11(e) arose
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prior to the provision of the Statement of Outstanding Claims, are not included in that statement and that, as a result, Rock JV is barred from making any claim. They also say that under the terms of the Best JV Supply Contract, Rock JV was not entitled to an extension of time for delivery of the Best JV Goods unless Rock JV had strictly complied with the requirements of cl 26.2, the delay caused the delivery of Best JV Goods to be delayed, and the delay was caused by one of a breach of contract by Best JV, a variation under cl 12, an act or omission of Best JV or any other delay beyond the control of Rock JV, none of which had occurred.
Both Besix and Thiess also raise the same allegation as raised in the Thiess Proceedings regarding the failure by Rock JV to obtain the necessary approvals for the works to the Haul Road or to clear the extent of native vegetation that was removed. They say that under the Best JV Supply Contract, Rock JV was required to comply with all relevant laws and obtain all necessary licences and approval required for the performance of its obligations but did not do so.
Besix and Thiess also raise the adequacy of the stockpiling area and plead that Rock JV failed to establish an adequate area for storage and stockpiling of the material required to meet its obligations under both the Thiess Supply Contract and the Best JV Supply Contract.
Besix and Thiess say Best JV was entitled to give notice to Rock JV of the change in the commencement of deliveries under the Best JV Supply Contract, and that this was done by the series of letters pleaded.
Besix and Thiess deny the amounts claimed by Rock JV are actual or verifiable expenses, were caused by the delay, or are directly attributable to the delay for the Best JV Initial Delivery, and say that any additional costs were caused or contributed to by matters for which neither is liable. These matters are pleaded to include Rock JV's failure to manage its operations adequately and its failure to have or maintain sufficient stockpiling capacity.
In its defence, Besix refers to some additional cause for any costs that were incurred, namely the use of the stockpiling capacity for the Thiess Supply Contract and its acceptance of additional contracts (including the Thiess Supply Contract). Besix says that Thiess' failure to take delivery or arrange haulage of goods from the Quarry on the
[2023] WASC 455
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Thiess Supply Contract contributed to the amounts claimed by
Rock JV.
Both Besix and Thiess contend the costs claimed by Rock JV are:
(a) theoretical and not actual costs; (b) based on an assumed production cost that never could have been achieved and a production rate per day which is not verified; and (c) based on increases in operational costs which are not directly attributable to any delay caused by them.
In addition, Besix says Rock JV's claim is a global or total costs claim or a modified total costs claim which is excluded from the Best JV Supply Contract and that Rock JV failed to mitigate any loss, including by deferring commencement of production of Best JV Goods or stockpiling Best JV Goods.
Finally, in relation to the Second Bank Guarantee, both Besix and Thiess accept the Second Bank Guarantee was converted but say they were entitled to do so for two reasons. First, because Rock JV did not provide a deed in the form required but reserved its rights to pursue claims against Best JV for up to $10.7 million, and second, pursuant to their right of indemnity under the Best JV Supply Contract.
There are some additional matters pleaded by Thiess by way of defence, including the matters which it says were known by the parties prior to entry into the Best JV Supply Contract. Specifically, Thiess pleads that prior to entry into the Best JV Supply Contract, both Rock JV and Best JV were aware that:
(a)
Best JV and Bechtel had entered into the Best JV Head Contract;
(b)
the Best JV Head Contract included terms that Bechtel was responsible for the design of the work to be undertaken;
(c)
to enable the work to be undertaken under the Best JV Head Contract, the types and quantities of materials to be supplied were subject to change;
(d)
Rock JV was going to enter into the Thiess Supply Contract; and
[2023] WASC 455
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(e) the Quarry was going to supply multiple customers of Rock JV and not just Thiess and Best JV.
Thiess also says that on a proper construction of the Best JV Supply Contract:
(a) Rock JV was required to establish the Quarry for the purpose of fulfilling its obligations under the Best JV Supply Contract; (b) the indicative tonnages were set out in Annexure B, which were subject to amendment by direction from Best JV, including to increase or decrease the quantity of Best JV Goods, omit any part of them, or change the dimensions, character, quality or performance of the Best JV Goods, or the sequence of any work; (c) delivery to Best JV occurred after Rock JV had tested the Best JV Goods, the Best JV Goods had been weighed and then delivered to the Project Site. Until delivery, Rock JV was responsible for the Best JV Goods; and (d) payment of up to 70% of the scheduled rate in Annexure B to the Best JV Contract could occur prior to delivery for Best JV Goods that were stockpiled, provided that title to these goods vested in Bechtel on payment, the Best JV Goods were clearly marked, and were stored in a place approved by Best JV.
Thiess repeats its defence to the Thiess Proceedings that Rock JV was required to obtain all necessary licences and approvals for the performance of its obligations under the Best JV Supply Contract, which did not occur until 15 November 2012 (for the commencement of production) and 30 October 2013 (for the clearing permit). Thiess contends that following an inspection by the DMP on 30 January 2013, which found there had been a failure to comply with the approvals that had been issued, Rock JV had to alter its production processes to comply with these approvals, which meant that Rock JV had to limit its production at the Quarry.
Thiess also pleads that any losses were caused or contributed to by the matters pleaded by Besix as part of its breach of warranty claim, set out at [127] below.
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In its replies to the defences filed by Besix and Thiess,[48] Rock JV denies it failed to give notice of its claims as required by the Best JV Supply Contract. Rock JV says that its Statement of Outstanding Claims in its Statement Upon Acceptance lists correspondence which gave notice of its claims. It also says that its initial notice, which was given on 30 April 2013, was within time as were the particulars of the claim, given on 4 May 2013. Rock JV says it was unable to properly quantify its delay between May and 3 October 2013, and that the effects of the delay did not cease until about June 2014. Rock JV pleads that, on a proper construction of the Best JV Supply Contract, it was required to submit its final claim by July 2014, and that Rock JV provided Best JV with particulars of its delay claim on 18 October 2013.
Rock JV accepts it received correspondence from Best JV regarding the revision to the date on which deliveries would commence but denies these were valid notices under the terms of the Best JV Supply Contract.
In relation to the allegations concerning the approvals for the Quarry, Rock JV admits that it cleared native vegetation over and above 11.8 ha but says this was required because of Best JV's delay in taking Goods under the Best JV Supply Contract.
The Besix counterclaim against Rock JV pleads three separate matters.[49] First, that Rock JV represented it had sufficient capacity to stockpile the rock to be supplied under the Best JV Supply Contract at the Quarry (First representation). Second, Rock JV represented it had the necessary personnel and equipment for stockpiling the Best JV Goods (Second representation). Both of these matters are said to be conduct which is misleading or deceptive contrary to s 18 of the Australian Consumer Law. Third, Best JV pleads that Rock JV breached a warranty under the Best JV Supply Contract that it had the necessary personnel and equipment to supply the Best JV Goods under the Best JV Supply Contract.
While Thiess also contends that Rock JV made a misleading or deceptive representation about the stockpile, Besix pleads it in slightly different terms. In relation to the First representation, Besix pleads that
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on or about 30 May 2012, 13 July 2012, 17 July 2012 and 24 July 2012, Rock JV represented in writing that it had sufficient capacity in its Quarry, and, if necessary, in an additional 10 ha, to stockpile the Best JV Goods. The Second representation is said to arise from cl 3 of the Best JV Supply Contract. Besix says there were no reasonable grounds for either representation, alternatively that each was false and that if Besix is found to be liable to Rock JV for any increased costs, any such loss will have been caused by the misrepresentation.
Besix says that were it not for Rock JV's misleading and deceptive conduct, Besix would have entered into a contract with WA Limestone and says that it has suffered loss and damage, which is particularised as being any amount it is liable to pay Rock JV in these proceedings.
In relation to the breach of warranty claim, Besix pleads a number of matters as constituting the breach of warranty. These are that Rock JV had insufficient stockpile space, did not have a production plan per product in place, its machinery broke down, it produced contaminated product and non-conforming product which required re-processing, it failed to meet required production levels and incurred significant over-budget costs. In its claim for damages for breach of warranty, in addition to any amount it is liable to pay Rock JV, Besix says the loss it suffered is the full amount it has spent in defending the Best JV Proceedings.
In its defence to Besix's counterclaim, Rock JV admits sending the emails and letters relied upon for the First representation, but denies any representation was made in the terms pleaded. In the alternative, Rock JV says there were reasonable grounds for any representation it is found to have made on the basis that if Thiess and Best JV had taken delivery of rock products in accordance with the terms of their respective supply contracts, there would have been sufficient space at the Quarry for stockpiling without the requirement to clear an additional 10 ha. Rock JV denies the other claims made by Besix without pleading any positive case by way of defence to these claims.
Thiess also filed a counterclaim, although its counterclaim (as is the case in the Thiess Proceedings) is against both Rock JV and Mr Ferrara personally.[50] The counterclaim raises the same two matters as pleaded in the Thiess proceedings, namely the stockpile representation, and the approval representation, both of which are said to be conduct which is misleading or deceptive contrary to s 18 of the
[2023] WASC 455
HILL J
Australian Consumer Law. The claim against Mr Ferrara is advanced on the basis that he personally made the pleaded representations, alternatively that he was knowingly involved in the representations made by Rock JV. Thiess says there were no reasonable grounds for either representation and that if Thiess is found to be liable to Rock JV for any increased costs, any such loss will have been caused by these misrepresentations or either of them.
Separate defences were filed by Mr Ferrara and Rock JV to Thiess' counterclaim. These are in similar terms to those filed in the Thiess Proceedings.
Onus, approach to evidence and general observations on credibility
Onus and standard of proof
Rock JV accepts it bears the onus of proof in establishing its claim. Thiess and Best JV bear the onus of proof in relation to their counterclaims.
The standard of proof is the balance of probabilities.
Approach to the evidence
In this case, the witnesses gave evidence at trial about events that occurred in 2012 and 2013, more than eight years prior to the trial. Previous authorities have discussed the approach that should be taken by the court in these circumstances.[51] In considering the oral evidence in this case, I have applied the following principles.
Human memory of what was said in a conversation is fallible for a variety of reasons. Ordinarily, this increases over time. This is because the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.[52]
The credibility of a witness and their veracity may be tested by reference to the objective facts proved independently, in particular by reference to the documents in the case. It is preferable to rely on contemporaneous documents in cases which involve events which
[2023] WASC 455
HILL J
occurred long before the litigation. Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material, the inherent commercial probabilities and the contemporaneous documents. Documents will often provide more valuable information than the attempted recollection of the facts by witnesses with an interest in the outcome of the litigation. This is particularly the case when the documents are accepted as genuine and were prepared by a person who had no reason to misstate the facts in these documents.[53]
Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements. This is because false memories can intrude, especially when the person recalling events has tried to assemble recollections logically. In doing so, the person can attempt to have some rational explanation in the person's mind as to what has happened. It is important to keep in mind that memories are both fluid and malleable and are constantly rewritten whenever they are retrieved.[54]
The court must be alive to the reality that words that are spoken are capable of bearing different and potentially opposed meanings depending on the nuance and emphasis that is given to particular words. A person's appreciation of the significance of these matters must necessarily be considerably diminished if there is a significant delay between the date when the conversation took place and the hearing at which the evidence of that conversation is given.[55]
There is a significant risk that conversations have been reconstructed by witnesses because of the intervention of the litigation. There are dangers in relying on evidence of what may have been a casual observation made to a person who had no reason to remember the exact words used at the time of the conversation.
Evidence of conversations needs to be scrutinised carefully where the person giving evidence of the conversations has an interest in the outcome of the proceedings. For these reasons, there is a substantial
[2023] WASC 455
HILL J
evidentiary burden on a party whose case relies upon oral evidence as
the foundation for its cause of action.[56]
As Hammerschlag J noted in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd:[57]
Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved.
General observations on credibility
Rock JV called four witnesses to give evidence on its behalf: Darryl Ferrara, a director and shareholder of Rock JV, Kenneth Macleod, a former manager of the Quarry, as well as two experts, Johannes Barnard and Paschal Baugh.
Thiess called four witnesses to give evidence: Andrew Giammo, who, at the time of the supply contracts, was an operations manager with Thiess and a member of the management committee of Best JV, and three experts, Michael van Koeverden, George Matta and Stephen Coogan.
Besix did not call any witnesses.
In addition to these witnesses, the parties tendered by consent the expert reports of the two forensic accountants: Dawna Wright (who was retained by Rock JV) and Owain Stone (who was retained by Thiess).
At trial, extensive challenges were raised as to the admissibility of Rock JV's expert evidence. For this reason, I have addressed all of the expert evidence at the relevant part of these reasons.
[2023] WASC 455
HILL J
Darryl Ferrara
Mr Ferrara is a director and, with his wife, currently a 50% shareholder of Rock JV. He is a fellow of the Australian Institute of Management and a Member of the Institute of Quarrying. Mr Ferrara has worked in quarries most of his working life and has been the general manager of various quarries over this time. As part of these roles, he was involved in the quotation, negotiation and project management of a number of major projects.
23 August 2012, which I accept and find is the correct date.
[514] Ex 353.1, item 1.2, p 2.
[515] Ex 357.1, p 8.
[516] Ex 425.1, p 7. 517 Ex 9226.1 [9].
[518] ts 935.
[519] Ex 9226.1 [10].
[520] Ex 9226.1 [11].
[521] Ex 9226.1 [12].
[522] Ex 9226.1 [15]. 523 Ex 9226.1 [16].
[524] See, for example, Ex 595.
[525] Ex 9226.1 [72].
[526] Ex 9226.1 [76].
[527] Ex 9226.1 [113].
[528] See, for example, Ex 452.1.
[529] See, for example, Ex 452.
[530] See, for example, Ex 572; Ex 604; Ex 660; Ex 749.
[531] See, for example, Ex 1063; Ex 706.
[532] ts 951.
[533] Ex 9226.1 [88].
[534] Ex 9226.1 [89].
[535] Ex 9226.1 [90].
[536] Ex 9226.1 [95] - [96].
[537] ts 1607 - 1608.
[538] See, for example, Ex 1193.
[539] ts 1608.
[540] Ex 9226.1 [100] - [101].
[541] Ex 9226.1 [104].
[542] Ex 9226.1 [107] - [115].
[543] Ex 9226.1 [117].
[544] Ex 519.
[545] ts 927.
[546] Ex 505.
[547] Ex 507.
[548] ts 963.
[549] See for example, Ex 608.
[550] Ex 586.
[551] Ex 608.
[552] Ex 496.1.
[553] Ex 533.1; Ex 572.
[554] Ex 5078, Cell Q46.
[555] Ex 660, Cell Q46.
[556] Ex 787.1, Cell Q48.
[557] Ex 865, Cell Q48.
[558] Ex 968, Cell Q49.
[559] Ex 1069, Cell Q49; ts 1050.
[560] Ex 1145, Cell Q49.
[561] Ex 1220, Cell Q48. 562 Ex 1294, Cell Q48.
[563] Ex 688.
[564] Ex 688.1.
[565] Ex 688.
[566] See, for example, Ex 708; Ex 708.1; Ex 726; 726.1.
[567] ts 993.
[568] Ex 787; Ex 787.1.
[569] Ex 726. 570 Ex 760.
[571] Ex 552.
[572] ts 1275.
[573] Ex 896.
[574] ts 1430.
[575] Ex 947.
[576] Ex 1027.1.
[577] Ex 4281.
[578] Ex 1193.
[579] ts 1463.
[580] ts 1464.
[581] Ex 500.1.
[582] Ex 523.
[583] Ex 3971.
[584] Ex 3992.
[585] Ex 626.
[586] ts 968.
[587] Ex 626.
[588] Ex 631.
[589] Ex 719.
[590] Ex 1082.
[591] Ex 398.
[592] Ex 483.
[593] Ex 521.
[594] Ex 546.
[595] Ex 572.
[596] Ex 553. See also Ex 572.
[597] ts 1279 - 1280; Ex 572.
[598] Ex 591.
[599] Ex 604.
[600] Ex 3999. 601 ts 1301.
[602] Ex 623.
[603] Ex 4010.
[604] ts 1313.
[605] Ex 709.
[606] Ex 737.
[607] Ex 784; Ex 785.
[608] Ex 856.
[609] Ex 867.
[610] Ex 870.
[611] Ex 1020. 612 ts 1058.
[613] Ex 1142.
[614] Ex 1221; Ex 4219.
[615] Ex 1261.
[616] Ex 1288.
[617] Ex 1332.
[618] Ex 1359; Ex 1365.
[619] Ex 1428; ts 1538; Ex 1430; Ex 1441; Ex 1446; Ex 1466.
[620] Ex 1456; Ex 1465.
[621] Ex 4296.
[622] Ex 839. 623 Ex 836.
[624] Ex 886.
[625] Ex 1290.
[626] See, for example, Ex 481.
[627] ts 886.
[628] See Ex 368; Ex 397; Ex 437.
[629] Ex 408.
[630] ts 1202.
[631] Ex 441; Ex 441.1.
[632] ts 899. 633 Ex 447.
[634] Ex 458; Ex 458.1.
[635] ts 908.
[636] Ex 479.
[637] Ex 498.
[638] See Ex 571; Ex 4024; Ex 679.
[639] Ex 639. 640 Ex 639.
[641] Ex 4020.
[642] ts 1325.
[643] Ex 665. See also Ex 691.
[644] Ex 752.
[645] Ex 755.
[646] Ex 756.
[647] Ex 757.
[648] Ex 766. 649 ts 1006.
[650] Ex 787. See also Ex 793; Ex 807.
[651] Ex 798.
[652] Ex 14560.
[653] ts 1413.
[654] Ex 835.
[655] See, for example, Ex 856.
[656] Ex 911.
[657] Ex 907. See also Ex 915.
[658] ts 1431. 659 ts 1433.
[660] Ex 913.
[661] ts 1443.
[662] Ex 915.
[663] Ex 918.
[664] Ex 962.
[665] Ex 1006.
[666] Ex 4107.
[667] Ex 941.1.
[668] ts 1032.
[669] See, for example, Ex 4188.
[670] Ex 1052.
[671] Ex 1125.
[672] Ex 1061; Ex 1174; Ex 1202.
[673] Ex 1234; Ex 1234.1.
[674] Ex 1220, Cell Q17.
[675] Ex 1255.
[676] Ex 1270.
[677] Ex 1270.1.
[678] Ex 1270.
[679] Ex 1281; Ex 1281.1.
[680] Ex 1271.
[681] Ex 1285.
[682] Ex 4256.
[683] Ex 1365.
[684] Ex 1369.
[685] Ex 4268.
[686] Ex 1386; Ex 1402.
[687] Ex 1389. 688 Ex 4011.
[689] Ex 678.
[690] Ex 670.
[691] ts 1334.
[692] Ex 705.
[693] Ex 1115.
[694] Ex 1131.
[695] ts 1057 (XN).
[696] ts 1487 - 1488 (XXN).
[697] ts 1057 - 1058.
[698] Ex 1127.
[699] ts 1056.
[700] Ex 9220.1 [3], [26].
[701] ts 1243.
[702] Ex 9226.1 [122].
[703] Ex 9226.1 [125] – [126].
[704] Ex 9226.1 [123].
[705] Ex 357.1, p 5.
[706] Ex 425; Ex 425.1.
[707] Ex 425.1, p 4.
[708] Ex 504.
[709] Ex 1058.
[710] Ex 526.3, item 6.2, p 3.
[711] Ex 508.2.
[712] ts 1244. 713 Ex 535.
[714] Ex 9226.1 [130].
[715] Ex 9226.1 [133].
[716] Ex 1145.
[717] Ex 9226.1 [140].
[718] Ex 9226.1 [141].
[719] Ex 683.
[720] Ex 683.1.
[721] Ex 694.
[722] Ex 694.3, p 6.
[723] Ex 739, p 3.
[724] Ex 739, p 2.
[725] Ex 739, p 1.
[726] Ex 750.
[727] Ex 769.
[728] Ex 769.2, p 6.
[729] Ex 769.2, p 7.
[730] Ex 1004.
[731] Ex 804; Ex 804.3, p 6.
[732] Ex 854.1.
[733] Ex 854.2.
[734] Ex 854.3. 735 Ex 854.1.
[736] Ex 2153.
[737] ts 1660.
[738] ts 1661. 739 ts 1662.
[740] ts 1663.
[741] Ex 858.
[742] Ex 908; Ex 908.1.
[743] Ex 939.
[744] Ex 987; Ex 987.1.
[745] Ex 1014; Ex 1014.1.
[746] Ex 1041.1.
[747] Ex 1040; Ex 1040.1. 748 Ex 1050; Ex 1050.1.
[749] ts 1049.
[750] Ex 1103.1, p 4.
[751] See, for example, Ex 1093.1.
[752] Ex 1093.1.
[753] Ex 1094; Ex 1094.1.
[754] Ex 1066.
[755] Ex 1089; Ex 1089.1.
[756] Ex 1163; Ex 1163.1. 757 Ex 1164; Ex 1164.1.
[758] Ex 1216; ts 1063 - 1064.
[759] Ex 1460; Ex 1460.3, p 4.
[760] Ex 1460.3, p 9.
[761] Ex 1490; Ex 1489.
[762] Ex 5130.
[763] Ex 1503; Ex 1503.1 - Ex 1503.3.
[764] Ex 356 (Progress Claim 1).
[765] Besix's opening submissions, Annexure A, p 60.
[766] Besix's closing submissions [340].
[767] Ex 1517.3 (LTC115 NOD 5 and EOT 5).
[768] Ex 1562 (LTC123 NOD 6 and EOT 6).
[769] Ex 5235 (LTC131 NOD 7 and EOT 7); Ex 1664; Ex 1664.1 (LTC137).
[770] Ex 1807 (LTC154 NOD 8 and EOT 8).
[771] Ex 1836 (LTC158 NOD 9 and EOT 9); Ex 1880 (LTC162 NOD 10 and EOT 10).
[772] Ex 1351 (LTC67 NOD 1 and EOT 1).
[773] Ex 1589.1.
[774] Ex 1354; Ex 1354.1 (LTC43 NOD 2 and EOT 2).
[775] JKC Australia LNG Pty Ltd v Ch2M Hill Companies Ltd [No 2] [2020] WASCA 112 [67] (Buss P &
Vaughan JA).
[776] JKC Australian LNG Pty Ltd v Ch2M Hill Companies Ltd [No 2] [69].
[777] George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182; (2016) 313 FLR 287 [82]
and the cases cited therein; Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42(11)].
[778] Re Media Entertainment and Arts Alliance; Ex Parte The Hoyts Corporation Pty Ltd [1993] HCA 40;
(1993) 178 CLR 379, 386 - 387.
[779] CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 [158].
[780] Black Box Control Pty Ltd v TerraVision Pty Ltd [42(10)].
[781] George 218 Pty Ltd v Bank of Queensland Ltd [No 2].
[782] Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson [2019] WASCA 114
[77].
[783] Seymour Whyte Constructions v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR
317 [6] - [10].
[784] Thiess' opening submissions [26], [40(a)]; Rock JV's closing submissions [1].
[785] ts 481 (Thiess); Rock JV's closing submissions [2].
[786] ts 476 (Thiess); Thiess' opening submissions [10] - [15], [51] - [52]; Rock JV's closing submissions [9].
[787] Thiess defence and counterclaim (1439/2015) [6(e)]; ts 513.
[788] Rock JV's closing submissions [1].
[789] Rock JV's closing submissions [1].
[790] Rock JV's opening submissions [85].
[791] Thiess' opening submissions [47].
[792] ts 502 - 503; ts 531.
[793] Although this is capitalised in the clause, it is not a defined term in the Thiess Supply Contract.
[794] Given the lengthy definition of Goods, as set out at [224], which does not materially assist in the
construction of this clause, I have not inserted this defined term.
[795] Oxford English Dictionary.
[796] Macquarie Dictionary.
[797] Ex 125, SC8.8, p 21.
[798] This reference is contained in the chapeau, as well as each of the sub-clauses of S14.9 apart from (f).
[799] Particulars, definition of 'Place for Delivery'; General Conditions, cl 9.6 - cl 9.8.
[800] This clause begins with the words 'If the work under the Supply Contract includes delivery of the Goods
to the Site'.
[801] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544.
[802] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [51] - [52].
[803] Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) NSWLR 633 [98].
[804] This is calculated by adding the totals in the first two columns of the Delivery Schedule for October 2012
(38,475 tonnes) and November 2012 (74,250 tonnes).
[805] Macquarie Dictionary.
[806] Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656 [11] - [12].
[807] Thiess' opening submissions [26], [40(a)]; Rock JV's closing submissions [1].
[808] ts 481 (Thiess); Rock JV's closing submissions [2].
[809] ts 476 (Thiess); Thiess' opening submissions [10] - [15], [51] - [52]; Rock JV's closing submissions [9].
[810] Rock JV's closing submissions [1].
[811] Rock JV's closing submissions [1].
[812] Given the lengthy definition of Goods, as set out at [224], which does not materially assist in the
construction of this clause, I have not inserted this defined term.
[813] Ex 48, SC8.8, p 25 - 26.
[814] Macquarie Dictionary.
[815] Besix's opening submissions [31].
[816] Rock JV's closing submissions [32].
[817] Oxford English Dictionary.
[818] Macquarie Dictionary.
[819] Zurich Australian Insurance Ltd v Fruehauf Finance Corporation Pty Ltd (1993) 7 ANZ Ins Cas
61-177, 78,012 (Gleeson CJ, Kirby P & Sheller JA agreeing).
[820] Oxford English Dictionary.
[821] Rock JV's closing submissions [33].
[822] Thiess Watkins White Construction Ltd v Commonwealth (1998) 14 BCL 61, 77.
[823] Hadley v Baxendale (1854) 156 ER 145; 9 Exch 341; Keating on Construction Contracts (11th ed) (2021)
[9-044].
[824] TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57; (1963) 180 CLR 130, 138.
[825] Thiess' opening submissions [179] - [197]; Besix's opening submissions [74].
[826] CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217 [375]; John Goss Projects Pty
Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798; (2006) 66 NSWLR 707 [80].
[827] Goodlen Pty Ltd v BP Australia Pty Ltd [2004] FCAFC 331; (2004) 141 FCR 325 [45].
[828] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99;
(2013) 29 BCL 19 [388] citing with approval Hudson's Building and Engineering Contracts, 12th ed, [8-045].
[829] Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [388].
[830] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 768.
[831] MLW Technology Pty Ltd v May [2005] VSCA 29 [76].
[832] FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 [151].
[833] FPM Constructions Pty Ltd v Council of the City of Blue Mountains [145].
[834] FPM Constructions Pty Ltd v Council of the City of Blue Mountains [146].
[835] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137.
[836] FPM Constructions Pty Ltd v Council of the City of Blue Mountains [151].
[837] BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2009] VSCA 221 [133].
[838] Rock JV's opening submissions [324].
[839] Rock JV's opening submissions [324]; ts 369.
[840] ts 371. 841 ts 586.
[842] Thiess' opening submissions [181] - [185]; Thiess' closing submissions [115] - [116].
[843] Thiess' opening submissions [186].
[844] ts 586.
[845] Ex 535; Ex 536; Ex 536.1.
[846] Ex 620.
[847] Ex 535.
[848] Ex 535.
[849] Ex 536.1.
[850] Ex 536.1.
[851] Ex 536.
[852] Ex 548; Ex 548.1. 853 Ex 580; Ex 580.1.
[854] Ex 620.
[855] Ex 4909.
[856] ts 942 (XN).
[857] Macquarie Dictionary.
[858] Oxford English Dictionary.
[859] BMD Major Projects Pty Ltd v Victorian Urban Development Authority [133].
[860] ts 363.
[861] Macquarie Dictionary.
[862] Ex 657; Ex 657.1.
[863] Ex 681; Ex 681.1. While the report is dated 21 January 2013, the email which sent the report is dated
23 January 2013, which I accept and find is the correct date.
[864] Ex 716; Ex 716.1. While the report is dated 28 January 2013, the email which sent the report is dated
4 February 2013, which I accept and find is the correct date.
[865] Ex 744. While the report is dated 3 February 2013, the trial bundle index dates this document as
13 February 2013, which I accept and find is the correct date.
[866] Ex 768; Ex 768.1. While the report is dated 18 February 2013, the email which sent the report is dated
19 February 2013, which I accept and find is the correct date.
[867] Ex 805; Ex 805.1. While the report is dated 25 February 2013, the email which sent the report is dated
27 February 2013, which I accept and find is the correct date.
[868] Ex 837; Ex 837.3. While the report is dated 3 March 2013, the email which sent the report is dated
5 March 2013, which I accept and find is the correct date.
[869] Ex 853. While the report is dated 10 March 2013, the trial bundle index dates this document as 12 March
2013, which I accept and find is the correct date.
[870] Ex 876; Ex 876.1. While the report is dated 17 March 2013, the email which sent the report is dated
18 March 2013, which I accept and find is the correct date.
[871] Ex 900; Ex 900.1. While the report is dated 24 March 2013, the email which sent the report is dated
26 March 2013, which I accept and find is the correct date.
[872] Ex 933; Ex 933.1. While the report is dated 31 March 2013, the email which sent the report is dated
2 April 2013, which I accept and find is the correct date.
[873] Ex 961; Ex 961.1. While the report is dated 7 April 2013, the email which sent the report is dated
11 April 2013, which I accept and find is the correct date.
[874] Ex 970; Ex 970.1. While the report is dated 14 April 2013, the email which sent the report is dated
16 April 2013, which I accept and find is the correct date.
[875] Ex 1027; Ex 1027.1. While the report is dated 28 April 2013, the email which sent the report is dated
30 April 2013, which I accept and find is the correct date.
[876] Ex 1055; Ex 1055.1. While the report is dated 5 May 2013, the email which sent the report is dated
8 May 2013, which I accept and find is the correct date.
[877] Ex 1072; Ex 1072.1. While the report is dated 12 May 2013, the email which sent the report is dated
15 May 2013, which I accept and find is the correct date.
[878] Ex 1106; Ex 1106.1. While the report is dated 26 May 2013, the email which sent the report is dated
29 May 2013, which I accept and find is the correct date.
[879] Ex 1138; Ex 1138.1. While the report is dated 10 June 2013, the email which sent the report is dated
11 June 2013, which I accept and find is the correct date.
[880] Ex 1175; Ex 1175.1. While the report is dated 23 June 2013, the email which sent the report is dated
24 June 2013, which I accept and find is the correct date.
[881] Ex 1204; Ex 1204.1.
[882] Ex 1235; Ex 1235.1. While the report is dated 21 July 2013, the email which sent the report is dated
23 July 2013, which I accept and find is the correct date.
[883] Ex 1274; Ex 1274.1. While the report is dated 4 August 2013, the email which sent the report is dated
6 August 2013, which I accept and find is the correct date.
[884] Ex 4953.
[885] Ex 4954. While the report is dated 1 September 2013, the trial bundle index dates this document as
4 September 2013, which I accept and find is the correct date.
[886] ts 1076 - 1077 (XN).
[887] Ex 4955. While the report is dated 15 September 2013, the trial bundle index dates this document as
23 September 2013, which I accept and find is the correct date.
[888] Ex 4956. While the report is dated 29 September 2013, the trial bundle index dates this document as
3 October 2013, which I accept and find is the correct date.
[889] Ex 4957. While the report is dated 13 October 2013, the trial bundle index dates this document as
21 October 2013, which I accept and find is the correct date.
[890] Ex 4958. While the report is dated 27 October 2013, the trial bundle index dates this document as
28 October 2013, which I accept and find is the correct date.
[891] Ex 4959. While the report is dated 10 November 2013, the trial bundle index dates this document as
12 November 2013, which I accept and find is the correct date.
[892] Ex 4960. While the report is dated 24 November 2013, the trial bundle index dates this document as
27 November 2013, which I accept and find is the correct date.
[893] Ex 4961. While the report is dated 8 December 2013, the trial bundle index dates this document as
9 December 2013, which I accept and find is the correct date.
[894] Ex 5160.
[895] Ex 1349; Ex 1349.1.
[896] Ex 1356.3.
[897] Ex 1356.2.
[898] Ex 1356.
[899] Ex 1409; Ex 1409.1.
[900] Ex 1420.1.
[901] Ex 1420.
[902] Ex 1470.
[903] Ex 1422.
[904] Ex 1505. While the letter is dated 3 November 2013, the trial bundle index dates this document as
8 November 2013, which I accept and find is the correct date. This is consistent with an almost identical copy of this letter (dated 5 November 2013) (Ex 1504) which has the same date in the trial bundle index.
[905] ts 1075 (XN).
[906] ts 1074 (XN).
[907] Ex 5188.
[908] Ex 5189.
[909] Ex 1561.
[910] Ex 1578; Ex 1575; Ex 1575.4.
[911] Ex 1578.
[912] ts 391.
[913] Ex 1577.
[914] Ex 1585; Ex 1585.1 - Ex 1585.8.
[915] Ex 4918.
[916] Ex 1600.
[917] Ex 1598. While the letter is dated 31 December 2013, the trial bundle index dates this document as
6 January 2014, which I accept and find is the correct date.
[918] Ex 1599. While the letter is dated 3 January 2014, the trial bundle index dates this document as 6 January
2014, which I accept and find is the correct date.
[919] Ex 1645. While the letter is dated 28 January 2014, the trial bundle index dates this document as
3 February 2014, which I accept and find is the correct date.
[920] Ex 1669. While the letter is dated 3 February 2014, the trial bundle index dates this document as
15 February 2014, which I accept and find is the correct date.
[921] Ex 1704. While the letter is dated 25 February 2014, the trial bundle index dates this document as
27 February 2014, which I accept and find is the correct date.
[922] Ex 1777.
[923] Ex 1901. While the letter is dated 22 April 2014, the trial bundle index dates this document as 23 February
2014, which I accept and find is the correct date.
[924] Ex 1830.
[925] Ex 1894.
[926] Ex 1922.
[927] Ex 1922.
[928] Ex 5014. 929 Ex 5018.
[930] Ex 5148.
[931] ts 400 - 401.
[932] Ex 5150. 933 Ex 5055.
[934] Ex 4926.
[935] Ex 4927.
[936] Ex 4927, p 79.
[937] Ex 5151.1, p 61.
[938] Ex 5151.1, p 67.
[939] Evidence Act 1906, 79C.
[940] Ex 1956.
[941] Thiess statement of claim [10].
[942] ts 371.
[943] ts 376.
[944] ts 586.
[945] Besix's opening submissions [99].
[946] Ex 1035; Ex 1035.1; Ex 1036.
[947] Ex 324, p 4, Particulars of Best JV Supply Contract.
[948] Ex 1035.1.
[949] Ex 1036.
[950] Ex 779; Ex 780.
[951] Ex 894; Ex 894.1.
[952] ts 1007.
[953] ts 1668 (XXN - Besix).
[954] Ex 5126.
[955] ts 1044 (XN).
[956] ts 1076 (XN).
[957] ts 1669 (Ferrara - XXN (Besix)).
[958] Ex 1043; Ex 5285; Ex 5285.1.
[959] ts 410 - 411.
[960] ts 1044; ts 1076.
[961] Ex 1116; Ex 1117.
[962] ts 409.
[963] Ex 1047.
[964] Ex 1192.
[965] Ex 1245.
[966] While this is the amount stated in the letter, the amounts set out as comprising the claim do not add up to
this but to $2,852,089.37, excluding the estimate for further testing or $3,252,089.37 if this is included.
[967] Ex 1244. 968 Ex 1263.
[969] Ex 1325.
[970] Ex 1351. 971 Ex 1391.
[972] Ex 4980; Ex 4980.1 - Ex 4980.10. Ex 1398 is a duplicate of Ex 4980.1.
[973] Ex 4980.2.
[974] Ex 4980.3.
[975] Ex 4980.4.
[976] Ex 4980.6 - Ex 4980.10.
[977] Ex 4980.5.
[978] Ex 1411. 979 Ex 4962.
[980] Ex 4962, p 8.
[981] Evidence Act 1906 (WA) s 79C.
[982] Ex 1457. An identical copy of this letter was tendered as Ex 5103.
[983] Ex 4295; Ex 4295.1; Ex 4295.2.
[984] Besix reply [10A(n)].
[985] ts 467 - 468.
[986] Rock JV's opening submissions [365].
[987] ts 585 - 586.
[988] ts 2915.
[989] Ex 1192 (LTC42); Ex 1245 (LTC50); Ex 1244 (LTC51); Ex 1263 (LTC53); Ex 5156 (LTC56); Ex 1325
(LTC63); Ex 1351 (LTC67); Ex 5096 (LTC71); Ex 4980; Ex 4980.1 - Ex 4980.10 (LTC78); Ex 1411
(LTC81).
[990] General Conditions, cl 20.15. 991 General Conditions, cl 20.16.
[992] Besix's opening submissions [110].
[993] Macquarie Online Dictionary.
[994] Ex 2070.
[995] Ex 5125.
[996] Ex 2072; Ex 2072.1; Ex 2072.2.
[997] Ex 2090; Ex 2090.1.
[998] ts 429 - 430.
[999] The claim for maintaining and extending bank guarantees and insurance, as well as the claim for the costs
of WA Limestone.
[1000] The Statement Upon Acceptance also refers to LTC57. In opening submissions, senior counsel for
Rock JV withdrew any reliance on this document: ts 433 - 434.
[1001] Ex 5156.
[1002] Ex 1351.
[1003] Ex 5096.
[1004] Ex 1192.
[1005] Ex 1192. 1006 Ex 4963.
[1007] Ex 4963, p 46.
[1008] Ex 4298.1.
[1009] Ex 5156.
[1010] Ex 2072.1, p 3.
[1011] Ex 3359; Ex 3359.3.
[1012] Ex 3359.1; Ex 3359.2.
[1013] Ex 3359.1.
[1014] Ex 1817; Ex 1817.1.
[1015] Ex 1897; Ex 1897.1.
[1016] Ex 1959.
[1017] Ex 1959.1.
[1018] Ex 2032; Ex 2032.1 (LTC191); Ex 2040; Ex 2040.1 (LTC194); Ex 3770; Ex 3770.2 (LTC200).
[1019] Ex 4963. 1020 ts 2916. 1021 Besix's closing submissions [340].
[1022] Ex 15003 [18], p 18.
[1023] Rock JV's closing submissions [29].
[1024] Ex 10368.
[1025] First Barnard report, p 4.
[1026] Ex 13762.
[1027] Second Barnard report, p 4.
[1028] Ex 13857.
[1029] Ex 13970.
[1030] Fourth Barnard report [1], p 4.
[1031] Fourth Barnard report [3], p 4.
[1032] Ex 9250; Ex 9251, together with its annexures Ex 9252 - Ex 10367.
[1033] Ex 13968.
[1034] Ex 10465, together with its annexures Ex 10467 - Ex 13761.
[1035] Ex 13969.
[1036] Ex 14466, together with its annexures Ex 14467 - Ex 14471.
[1037] Ex 15001; ts 2622.
[1038] Ex 14465.
[1039] Baugh report, p 11.
[1040] Ex 14472, together with its annexures Ex 14473 - Ex 14481.
[1041] Ex 14466 - Ex 14471.
[1042] Ex 14483, together with its annexures Ex 14484 - Ex 14798.
[1043] Ex 14799.
[1044] Ex 15000.
[1045] Ex 15001.
[1046] Ex 15008.
[1047] Ex 15003.
[1048] National Foods Milk Ltd v McMahon Milk Pty Ltd (No 2) [2009] VSC 150.
[1049] National Foods Milk Ltd v McMahon Milk Pty Ltd (No 2) [20].
[1050] Rock JV's opening submissions [175].
[1051] Rock JV's closing submissions [54].
[1052] Rock JV's opening submissions [175.1].
[1053] Rock JV's closing submissions [53].
[1054] Rock JV's closing submissions [56].
[1055] Rock JV's opening submissions [175.2].
[1056] Rock JV's closing submissions [55].
[1057] Rock JV's opening submissions [177] - [181].
[1058] MFI-2.
[1059] Rock JV's opening submissions [239.7].
[1060] Rock JV's closing submissions [39].
[1061] ts 1045.
[1062] Thiess' opening submissions [165].
[1063] Thiess' opening submissions [128].
[1064] ts 475. See also Besix's closing submissions [3].
[1065] Thiess' opening submissions [110].
[1066] Thiess' closing submissions [7]. 1067 Besix's closing submissions [6].
[1068] ts 674.
[1069] Thiess' opening submissions [121]; Besix's opening submissions [112] - [115].
[1070] Rock JV's closing submissions [65] - [66].
[1071] Rock JV's closing submissions [68].
[1072] Mainteck Services Pty Ltd v Stein Heurtley SA [186] - [205].
[1073] ts 549.
[1074] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [38].
[1075] Thiess' opening submissions [115] - [116].
[1076] ts 473.
[1077] Besix's closing submissions [80].
[1078] Rock JV's closing submissions, Annexure C [14].
[1079] Makita (Aust) Pty Ltd v Sprowles [85].
[1080] Grubisic v State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524 [44].
[1081] Liyanage v State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122].
[1082] BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR
234 [185].
[1083] Lepoidevin v State of Western Australia [No 2] [2021] WASCA 19 [63].
[1084] McKay v Commissioner of Main Roads [No 3] [2010] WASC 232 [7].
[1085] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [100].
[1086] Dasreef Pty Ltd v Hawchar [90].
[1087] Dasreef Pty Ltd v Hawchar [91], [129].
[1088] Beer v Duracraft Pty Ltd [2004] WASCA 192 [79].
[1089] Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).
[1090] Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764
[136].
[1091] Ex 3887, MFI-2.
[1092] ts 809.
[1093] Ex 3888.
[1094] Ex 3895.
[1095] ts 816 - 817.
[1096] Ex 3887, Cell M26.
[1097] Ex 1467.1.
[1098] Ex 1467.
[1099] ts 1548 - 1550.
[1100] ts 1547.
[1101] Ex 1467; Ex 1467.1, p 3; ts 1546.
[1102] Ex 1149.
[1103] Ex 1149.1.
[1104] Ex 1149.2.
[1105] ts 766 - 767. 1106 ts 849 - 850.
[1107] ts 860.
[1108] ts 1084.
[1109] ts 1127 - 1128.
[1110] ts 1577.
[1111] ts 1578.
[1112] ts 1100.
[1113] ts 1088.
[1114] MFI-2, Lines 6 - 16.
[1115] MFI-2, Lines 23 - 28.
[1116] MFI-2, Lines 35 - 40.
[1117] MFI-2, Cell J13.
[1118] MFI-2, Cell J21; ts 1126.
[1119] MFI-2, Cell J24.
[1120] MFI-2, Cell J36.
[1121] ts 1089.
[1122] ts 1101 - 1102.
[1123] ts 1106.
[1124] ts 1447.
[1125] Ex 5355; Ex 5355.1.
[1126] ts 1571 - 1578.
[1127] ts 1671 - 1675.
[1128] ts 1682 (ReXN).
[1129] Thiess statement of claim [10], particular (c); Best JV statement of claim [14A], particular (b).
[1130] Ex 941.1.
[1131] Ex 1578.
[1132] Ex 1577.
[1133] Ex 369; Ex 369.2 (Thiess); Ex 374; Ex 374.1 (Best JV).
[1134] Ex 380; Ex 380.1.
[1135] Technical joint expert report [2], p 2.
[1136] Ex 454.1. See also Ex 458.1.
[1137] ts 1211.
[1138] See, for example, Ex 520; Ex 520.1.
[1139] Ex 458.1.
[1140] Ex 3; ts 1554 - 1555.
[1141] Ex 4.
[1142] Ex 9226.1 [51].
[1143] Ex 9226.1 [52].
[1144] A slotted screen where large rock is encouraged to carry over the screen and fines fall between the grizzly
bars. The spacing of the grizzly bars is measured in the middle of the screen as the bars are more open at the
point or entry and taper to a narrower spacing at the exit.
[1145] Ex 9226.1 [56].
[1146] Ex 520.
[1147] Ex 9226.1 [67].
[1148] ts 749 (XN).
[1149] ts 1602.
[1150] ts 1599. 1151 ts 1601.
[1152] First Barnard report, Appendix A (Ex 10373, p 4).
[1153] Fourth Barnard report [18], p 8.
[1154] van Koeverden report, Appendix B (Ex 14475, p 8).
[1155] First Barnard report [98].
[1156] First Barnard report, Table 3.c.3, p 30 - 31.
[1157] van Koeverden report [81].
[1158] van Koeverden report [84].
[1159] First Barnard report [19].
[1160] ts 1830.
[1161] van Koeverden report [89].
[1162] van Koeverden report [154].
[1163] Ex 9226.1 [18] - [19].
[1164] ts 884.
[1165] Ex 9226.1 [51] - [53].
[1166] ts 1912.
[1167] ts 1924 - 1925.
[1168] ts 1922.
[1169] ts 1923.
[1170] Technical joint expert report, item 11, p 2.
[1171] Ex 13985; Ex 13986.
[1172] ts 1925. 1173 ts 1972.
[1174] ts 1973.
[1175] First Barnard report, Table 3.c.2.
[1176] First Barnard report [65].
[1177] van Koeverden report [84(b)].
[1178] Technical joint expert report, item 16, p 2.
[1179] Ex 2120. See Rock JV's closing submissions [47].
[1180] Baugh report [30], [53].
[1181] Baugh report [54].
[1182] Baugh report [AF-34].
[1183] Baugh report [AF-38].
[1184] Baugh report [AF-37] - [AF-38].
[1185] Baugh report [AE-450]. 1186 Coogan report [126(a)].
[1187] Coogan report [126(b)].
[1188] Ex 15243, Cell Q23.
[1189] ts 2658 - 2659.
[1190] ts 2659.
[1191] ts 2639 - 2640.
[1192] ts 2650 - 2651. 1193 ts 2639 - 2640.
[1194] ts 2642. 1195 ts 2657.
[1196] ts 2647.
[1197] Ex 3794, p 18.
[1198] See, for example, Ex 3797, p 5 - 6.
[1199] Ex 749, Tab 'Machinery utilisation', rows 12 - 15.
[1200] ts 1448.
[1201] First Barnard report, item 64, p 15.
[1202] van Koeverden report, item 313(c), p 75.
[1203] First Barnard report, Table 3.a, p 16 and Second Barnard report, Table 3.c.1, p 25 and amending the
stockpiling footprint to start at 36,000 m2 as planned by Rock JV.
[1204] van Koeverden report [117], Fig 22, p 26.
[1205] ts 1221; ts 1243.
[1206] Ex 496.1; Ex 572. This is broadly consistent with the survey of the stockpile on 19 November 2012
(Ex 547.1); ts 1268.
[1207] Ex 8.
[1208] ts 2899.
[1209] ts 1465. See also ts 1515.
[1210] ts 1269.
[1211] ts 1271.
[1212] ts 1486.
[1213] Rock JV's closing submissions [89] - [91].
[1214] Rock JV's closing submissions [96].
[1215] Thiess' closing submissions [38], Besix's closing submissions [136] - [246].
[1216] Ex 4256.
[1217] Ex 761.
[1218] ts 1554.
[1219] See Ex 652; Ex 907; Ex 1006; Ex 1061; ts 978.
[1220] Ex 652. Emphasis in original.
[1221] Ex 1131.
[1222] Ex 4234.
[1223] Ex 1271.
[1224] ts 1488 - 1489.
[1225] Ex 4234.
[1226] ts 1517 - 1518.
[1227] Ex 4269.
[1228] ts 1537. 1229 ts 1192. 1230 Rock JV's opening submissions [174].
[1231] Rock JV's closing submissions [146].
[1232] Ex 854.1.
[1233] ts 980.
[1234] ts 1063 - 1064.
[1235] Forensic Accountants' joint expert report [3.2.1], [3.2.2].
[1236] Forensic Accountants' joint expert report [3.3.1].
[1237] Forensic Accountants' joint expert report [3.2.3].
[1238] Forensic Accountants' joint expert report [3.3.3].
[1239] Forensic Accountants' joint expert report [3.4.5].
[1240] Baugh report [AE-463].
[1241] Baugh report [AE-464].
[1242] Baugh report, p 366.
[1243] Baugh report [AE-473]. 1244 Baugh report [AE-475].
[1245] Baugh report [AE-477].
[1246] The information in this table is taken from Ex 15244.
[1247] The information in this table is taken from Ex 15244.
[1248] ts 2680.
[1249] ts 2682.
[1250] ts 2683.
[1251] ts 2692.
[1252] ts 2711.
[1253] ts 2729.
[1254] ts 2695. 1255 ts 2726.
[1256] ts 2730.
[1257] ts 2731.
[1258] ts 2731 - 2732.
[1259] ts 2764.
[1260] ts 2701 - 2702.
[1261] Coogan report [376].
[1262] Coogan report [377] - [423]. See also ts 2636.
[1263] ts 2690.
[1264] ts 2733 - 2734.
[1265] ts 2754 - 2755.
[1266] ts 2756 - 2757.
[1267] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR
175.
[1268] Aon Risk Services Australia Ltd v Australian National University [98].
[1269] Ex 364; Ex 4986.
[1270] Rock JV's closing submissions [44].
[1271] Ex 479.
[1272] Ex 941.1.
[1273] ts 1060 (Ferrara XN).
[1274] Ex 248.1, p 3.
[1275] Thiess' closing submissions [111(d)].
[1276] Ex 8.
[1277] Ex 5.
[1278] Ex 9220.1 [129]; ts 1019.
[1279] ts 1015; ts 1272.
[1280] ts 1446.
[1281] ts 1272.
[1282] ts 1445.
[1283] ts 1556.
[1284] Rock JV’s closing submissions [53].
[1285] ts 2965.
[1286] Ex 15006, Database Tab.
[1287] ts 2978, 2985.
[1288] ts 2986 - 2989.
[1289] ts 2983 - 2984.
[1290] Quantum joint expert report (Ex 15003) item 2.2, p 11 - 12; cf Delay joint expert report (Ex 15000)
item 22, p 8 - 9.
[1291] Baugh report [AE-475], p 369.
[1292] Delay joint expert report, item 22, p 8.
[1293] ts 2550.
[1294] Baugh report, Appendix E, [2.1 AE-3], p 185.
[1295] ts 2549.
[1296] Baugh report, Appendix E, [4.1 AE-110], p 227.
[1297] Fourth Barnard report [4] - [9], Annexure A.
[1298] Fourth Barnard report [8].
[1299] ts 2585.
[1300] ts 2586.
[1301] ts 2589.
[1302] ts 2588 - 2589.
[1303] ts 2589.
[1304] ts 2590.
[1305] An analysis of a system which accounts for material entering and leaving the system.
[1306] Fourth Barnard report, [45], p 12.
[1307] Baugh report [AE-179], p 252.
[1308] Baugh report, [AE-180], Figure AE-11, p 253.
[1309] Fourth Barnard report [215].
[1310] Fourth Barnard report [199] - [215].
[1311] ts 2592.
[1312] ts 2593.
[1313] ts 2593.
[1314] ts 2593 - 2594.
[1315] ts 2594.
[1316] ts 2592.
[1317] See Fourth Barnard report Table 4, p 76 - 77.
[1318] Fourth Barnard report, p 77.
[1319] ts 2573. Also see Fourth Barnard report [335] - [336].
[1320] Rock JV's closing submissions, Annexure C, [17].
[1321] See, for example, ts 2567.
[1322] ts 2513.
[1323] Matta report [81].
[1324] Ex 5183.
[1325] Ex 604.
[1326] ts 2798 (Thiess); ts 2862 (Besix).
[1327] Rock JV's opening submissions [367.1].
[1328] Rock JV's opening submissions [367.3].
[1329] Rock JV's opening submissions [367.2].
[1330] ts 444.
[1331] General Conditions, cl 12.4.
[1332] General Conditions, cl 12.5.
[1333] General Conditions, cl 12.7.
[1334] Thiess Supply Contract, p 12.
[1335] General Conditions, cl 12.8.
[1336] General Conditions, cl 12.9.
[1337] General Conditions, cl 12.10.
[1338] General Conditions, cl 12.11.
[1339] General Conditions, cl 12.12.
[1340] General Conditions, cl 12.13.
[1341] Ex 1324; Ex 1324.1.
[1342] Rock JV's opening submissions [385].
[1343] Ex 1337; Ex 1337.1.
[1344] Rock JV's opening submissions [385].
[1345] Ex 1311; Ex 1311.1.
[1346] Ex 1354; Ex 1354.1.
[1347] Rock JV's opening submissions [397].
[1348] Ex 1696; Ex 1696.1. 1349 Ex 1703; Ex 1703.1.
[1350] Rock JV's opening submissions [366.2].
[1351] Ex 354.
[1352] Ex 2134. 1353 Ex 2148. 1354 General Conditions, cl 19.4.
[1355] Ex 2134.
[1356] General Conditions, cl 19.5.
[1357] Rock JV's opening submissions [439] - [440].
[1358] Besix's opening submissions [208(c)].
[1359] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35].
[1360] Ex 2130; ts 2818.
[1361] Ex 404, p 2.
[1362] Ex 475.1, p 5.
[1363] See for example, Ex 560; Ex 560.1; Ex 560.2.
[1364] Ex 1567.
0
48
3