Rowe v Bishop (No 2)
[2022] SADC 60
•10 May 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ROWE AND ANOR v BISHOP AND ANOR (No 2)
[2022] SADC 60
Judgment of his Honour Judge Slattery
10 May 2022
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
The applicants owned a house property in rural South Australia.
The respondents are builders and the first respondent holds a builders licence. In 2011, the respondents performed building work for the applicants on some internal rooms of their house and charged on a cost-plus 10% plus GST basis.
In November 2012, the applicant Mrs Rowe and the first respondent met to discuss proposed addition to the applicants’ home. A sketch was produced showing plans for only a limited amount of work on a garage and a rear carport. The respondents prepared and delivered to the applicants an estimate to complete this work subject to the necessary work being done by other professionals and the conditions imposed by any relevant planning authority. The estimate was in a range of between $85,000 to $90,000.
An architectural drafter was retained, who in turn engaged an engineer. Further instructions were given by the applicants requiring other work to be done that substantially increased the scope of the required building work. The drafter prepared more broadly based plans that disclosed a much greater scope of work than the hand drawn sketch.
Development consent was obtained from the local council. An engineer was retained and following provision of the engineer’s report, Building Rules consent was obtained. The applicants and the respondents then negotiated about the method of calculation of the price at which the total work under the plans and the consents would be achieved in light of the fact that the scope of works had increased considerably from that disclosed in the November 2012 hand drawn sketch. The negotiations of the parties and the decisions about the scope of the works evolved over time until an agreed position was reached. The applicants now contend that the parties agreed for the work to be done at a fixed price of between $85,000 to $90,000, as specified in the respondents’ first initial estimate. The respondents contend that the parties agreed to adopt the same cost-plus charging method of costs plus 10% plus GST.
The respondents commenced the work and in the course thereof, they contend that the applicants instructed them to undertake and to complete further internal and external work and that they were not to undertake some of the work for which Building Rules consent had been given. The respondents contend and the applicants deny that they were not required to complete all of the work for which consent had been given. The respondents contend that they completed the work required of them by February 2014. The respondents delivered to the applicants fee accounts for work done calculated on a costs plus 10% plus GST basis. Each account for building work rendered by the respondents was calculated on that basis. In the period between October 2013 and April 2014, the date upon which the respondents rendered their final invoice, the applicants made payment over time and as at November 2014, the applicants were indebted to the respondents in the sum of $8,376.90 plus interest of a total of accounts rendered of $156,886.00.
In February 2015, the applicants contended, for the first time, that the respondents were in breach of the building contract for failure to complete the total works, that the works undertaken were defective and further corrective work was required to be undertaken to the work that had already been completed, including in relation to a failure to comply with the engineering specifications. The applicants then contended that the respondents had agreed to complete all of the building work for a fee of between $85,000-$90,000.
The applicants obtained a report of an engineer but did not call the engineer in evidence. Other expert witnesses retained by the parties prepared reports based in part upon assumptions about proof of the content of the engineer’s report, including that the work for which consent was granted under the Building Rules consent was required to be completed by the respondents under the contract; that the work done was, in part, defective; and that remedial works were required to be completed. The applicants also contend that the price charged by the respondents was not reasonable. The respondents contend that they have completed all of the work required of them following specific instructions received from the applicants, that in the absence of evidence from the engineer there is no other evidentiary basis to make complaints about their work and they are entitled to an order on their counterclaim in the amount of $8,576 or on a quantum meruit basis in the sum of $13,918.50.
Held:
1. There was no fixed price contract between the applicants and the respondents.
2. The contractual arrangement between the parties was under a costs plus 10% plus GST contract for all of the work done by the respondents.
3. The respondents undertook and completed all of the work required of them by the applicants, including for extras and variations.
4. The charges of the respondents for the work done were reasonable.
5. The claims of the applicants are dismissed.
6. Subject to the matters set out below, the respondents are entitled to an order on the counterclaim in the sum of $8,576 or alternatively for an assessment on a quantum meruit basis in the sum of $13,918.50.
7. The report of Mr Effingham establishes that there are a number of matters requiring attention from the respondents so that all of the work already completed by the respondents conforms with good engineering practice and the requirements of the planning authority.
8. The court will hear the parties further, including on the question of costs and interest.
Building Work Contractors Act 1995 (SA), referred to.
Corradini & Anor v O’Brien Lovrinov Crafter Pty Ltd (2000) 77 SASR 125 , considered.
ROWE AND ANOR v BISHOP AND ANOR (No 2)
[2022] SADC 60
As I have earlier described,[1] the applicants are the owners of a domestic house upon a property in the township of Kapunda in rural South Australia (“the property”).
[1] Viz Rowe and Anor v Bishop and Anor (No 1) [2022] SADC 58.
The respondents carried on the business of licensed builder under a licence held by Mr Mathew Bishop (“Mr Bishop”).
In November 2012 the applicant, Ms Skippy Rowe, arranged for Mr Bishop to attend at the property to discuss building work. The proposed work was to be carried out on the existing home on the property. The general nature of the works was to build a garage and area behind the garage on one side of the house. Ms Skippy Rowe provided to Mr Bishop a hand‑drawn sketch (Exhibit A1, page 002) which proposed an addition to the current dwelling comprising a garage and a carport.
In their evidence, the applicants contend that they requested Mr Bishop to provide a fixed price quote to carry out this building work and that he did so by providing a quotation of between $85,000‑$90,000, excluding GST plus any fees for engineering services and fees associated with obtaining development approval (and I assume Building Rules approval). That contention of the applicants is consistent with their pleadings at paragraphs 6 and 7 of the statement of claim which allege that there was a fixed price contract for the carrying out of the building work of between $85,000‑$90,000 other than the “planning stage”. It is unclear what is meant by the expression “planning stage” or how much more the applicants were to pay for that stage and to whom. I consider the agreement made between the parties was never for a fixed price agreement in the amount of $85,000‑$90,000 or any such amount. I also consider that a contention to that effect is illogical and does not reflect the agreement between the parties.
The applicants further contend that they have paid well in excess of the total of these sums. They bring cross‑claims. They allege that further building works are required to be done; the building works done have not been carried out in accordance with the specified plans; the building works are defective and incomplete; Mr Bishop has over‑charged them for the building works done; and they have suffered loss and damage as a result of these breaches. These losses include that they are entitled to be reimbursed for any amount of the overcharge by Mr Bishop and in the alternative, compensation.
A claim is also made by the applicants for damages for breach of statutory duty but that claim has not been pursued. A claim for damages for breach of a duty of care was also not seriously pursued. In my view, the evidence does not support any claim for a breach of a statutory duty nor any claim for the breach of a duty of care, including that no basis in fact or law has been properly pleaded to support such a duty of care.
For the reasons which follow, the claims of the applicants substantially fail.
There are a number of matters which are not in contest between the parties. The applicants are the owners of the property for the Building Work Contractors Act and the respondents are the building work contractors under that Act. There had been an earlier contract between the applicants and the respondents which was settled in or about 2010-2011. In that contract, there was an agreed scope of works, the work was done and was charged on a cost plus 10% plus GST basis. There was no signed contract for that work or for any other work that the applicants asked Mr Bishop to perform at that time. I am satisfied that in November 2012, the date of the first meeting between the applicants and Mr Bishop, the applicants were familiar with the charging method of Mr Bishop for work that he did for them and raised no issue about that method.
On 12 November 2012, Mr Bishop attended a meeting at the property with Mrs Rowe and, perhaps, Mr Rowe. At that meeting, he was given a hand‑drawn sketch of some proposed additions to the house on the property and he was asked to provide an estimate of the cost of performing the work reflected on that plan. The applicants contend that Mr Bishop was asked for a firm quotation to do the building works. I am not satisfied on the balance of probabilities that this request was made. There are many reasons for forming this view including the full scope of the work could not have been known by Mr Bishop at the time that he received this plan and, for example, there were no engineering specifications or final specifications in a drawn form provided to him by the applicants. All he received was an outline sketch of a plan.[2]
[2] Exhibit A1, page 002.
I am satisfied that Mr Bishop then went away and did sufficient work to develop an estimate only of a range of costs to do the building work of between $85,000‑$90,000. He confirmed that estimate in an email to the applicants. Once that email had been sent, it then became necessary for proper plans to be drawn. An architectural drafter, Mr Tony Wilson, was retained. As is usual in these matters, the parties considered initial drafts and have input into the final plan prepared by the architectural drafter. This includes input from the builder which is important because the parties develop plans in the background of the cost of the building work, which cost would primarily be known by the builder. Part of this cost will include the cost of an engineer. Mr Richard Atkinson was appointed as the engineer to do that work. I am satisfied that he was appointed by Mr Tony Wilson and this was known by the applicants and that they were responsible to pay the costs of Mr Wilson and Mr Atkinson.
Also in the usual course, the engineer is retained by the builder or by the architectural drafter and I am satisfied that in this case the engineer was retained by Mr Wilson. That position reflects the state of the evidence before me and I am similarly satisfied that this was known by the applicants or they soon became aware of this fact. It makes no difference because the applicants were aware that they had to pay these costs. So much is consistent, in part, with their pleaded case.[3]
[3] Statement of claim, paragraph 6.2.
Plans were finalised and submitted to council for planning consent which was granted on 16 January 2013. The engineer then provided his report and the plans were finalised and submitted to the council which granted Building Rules consent on 28 February 2013. It was then necessary for a building certifier to certify these plans.
The plans drawn by the applicants and given to Mr Bishop are to be found at Exhibit A1, page 002. The plans for which Building Rules approval and certifications are to be found at Exhibit A1, pages 409 and following.
A comparison of the two documents shows that certified plans required the completion of substantially more building work than the initial hand drawn sketch. For example, there was now the addition of a very large rear proposed verandah behind the proposed garage, for there to be front verandahs and for there to be the creation of a Makralon roof deck over a passageway between the two rear verandah areas.
These are all very substantial works. They are not reflected in the initial hand drawn sketch, Exhibit A1, page 002. The applicants have not satisfied me that on any basis could they have had any expectation that an estimate given by the respondent about the sketch at Exhibit A1, page 002 bound the respondents to do the building work required under those certified plans for an estimate only of between $85,000-$90,000. Although that was not their pleaded case, at trial that became the primary position of the applicants and I am unable to accept that position as proved on the balance of probabilities.
I am satisfied that following Building Rules consent, there was a meeting between the applicants and Mr Bishop to discuss what of the plans would be built and the changing basis for the completion of the works. In the course of these discussions, it became clear to Mr Bishop that due to cost, the owners wished to undertake some of the work themselves and would not require Mr Bishop to undertake this work. This desire of the owners to carry out some of the building work stemmed largely from the fact that significantly greater work was required to be completed, that work would be undertaken by the builders on a cost-plus basis and that if some of that work could have been undertaken by the owners, then there would be a saving on costs. That was the wish and desire of the owners.
I am also satisfied that these negotiations were all oral and that the work commenced and was paid for according to those oral arrangements. Those arrangements included a term that the respondents would be paid for the work that they completed on a cost-plus basis. In the course of these discussions, there were various methods of payment that were discussed. These varied from a fixed price contract to a cost-plus contract. The parties discussed these matters in sufficient depth to achieve some form of consensus and I think this consensus evolved over time. It is clear to me that there was no agreement for a fixed price contract. Mr Bishop preferred what he described as a charge‑up method which involved charging actual costs for materials and labour plus a margin. It was also agreed that there would be a fixed hourly rate for supervision and GST would be added to each of those charges.
I am satisfied that this arrangement evolved over time between the parties and so, by their agreement, became the accepted charging method. Another reason it was preferred by Mr Bishop is that he thought that it was the cheapest charging method from his point of view. In a similar fashion, the scope of works also evolved over time because the applicants were not completely certain which part of the planned works they wanted done and, for example, what part of the works they would complete themselves. This leads to some uncertainty about the final scope of the works. In the absence of a clear scope of works, it was very difficult to fix a price for the whole works in any event. Therefore, these two aspects, namely the charging method and the work to be completed, evolved in tandem over time, and led to a decision not to have a fixed price contract. The costs plus charging method was already familiar to the applicants from prior work done inside their home by the respondents.
The work commenced in June 2013 with the demolition work and then substantive building work began in July 2013, although only limited progress seems to have been made over the following months. In October 2013, there was a request by the applicants for further works to be done. The applicants instructed Mr Bishop to re‑roof the balance of the house so that the existing roof would match the new section of roof that he was installing; he was instructed to install new insulation in the entire ceiling space; he was instructed to insert a thermal blanket on the underside of the roofing corrugated iron; he was instructed to remove and then re‑instate gutter facias and eave linings to match the new; and he was instructed to carry out remediation works on the internal ceilings of two rooms of the existing house. There was no fixed price quoted (and none was sought) for this extra work and it was to be completed under the existing arrangements.
At the end of October 2013, Mr Bishop delivered an invoice for work done and materials supplied, for a mark‑up plus GST. The account was in the amount of $100,457.50.[4] Perhaps unsurprisingly, this set the applicants back financially and the evidence does not disclose why there had not been a series of smaller accounts delivered, as may be expected as work progressed. At the time of the delivery of this invoice, the whole of the works had not been completed. For example, the Makralon roofing had not been installed as required. The applicants did not reject the account delivered by Mr Bishop; they sought some explanation in an email letter.[5] This account of Mr Bishop was paid over a period of time by arrangement with Mr Bishop. Although this timing of payments seems to have developed over time (and it is unclear how this scheme of payment evolved), the account was paid in part payments as agreed between the parties. At that time, the work continued including the extra works agreed in October 2013.
[4] Invoice No. 293 dated 27 October 2013.
[5] Exhibit A1, page 259, email dated 5 December 2013.
Before Christmas 2013 and after the 3 December 2013 account, Mr Bishop informed the applicants of his intention to resume work on 13 January 2014, at which time further other works would be carried out. Instructions were sought about some variables within the original works such as for the type of doors that were to be installed. Those instructions were given and appear not to have been varied. As a consequence, physical work recommenced on 14 January 2014 and by the end of January 2014 work was complete from Mr Bishop’s perspective. That position was reached after the applicants had given instructions to Mr Bishop not to undertake particular work such as, for example, installing French doors.
For reasons which are not clear on the evidence, there was a level of dissatisfaction amongst the applicants about some of the building work. The first knowledge that Mr Bishop had about any issue that the applicants had with the building work was that he became aware of a letter attached to an email from a Mr Walter Pettge, accountant.[6] This letter was written from the point of view of a fixed price contract for a set amount of works all of which are reflected in the plan for which Building Rules consent was given. That appears to be the basis upon which Mr Pettge was instructed by the applicants. The instructions received by Mr Pettge were not correct; the applicants instructed the respondents that they would not carry out all of the work required under the Building Rules approved plan; and there was no contract settled between the parties that could in any sense be described as a fixed price contract. The letter of Mr Pettge does not take account of the extra work the respondents were instructed to undertake. In the result the letter of Mr Pettge is of no significance and I do not need to consider the respondents’ letter in response.
[6] Exhibit A1, page 271.
It is apparent that the document provided by the respondents to the applicants dated 12 November 2012 is not a quotation but is merely an estimate. It is headed “estimate”. It reads that it is an estimation only based upon the drawings provided. It allows for the owners’ discretion in relation to electrical circuits and lights. It does not include the costs for the planning stage and does not include drawings or planning approvals, engineering fees or certificate fees or levies. It reads:
As discussed, once approved plans are issued, I can give a fixed price including all engineering and insurances. I am more than willing to use my guys in the planning stage and help with this process so if there is any issue we can work through it together. I am also quite “chummy” with council these days and I think it helps if my name is on the plans.
It then reads:
PRICE EXCLUDING GST $85-90,000
It is therefore a range and is not a quotation for work to be done.
The respondents rendered their final invoice on 9 April 2014[7] and in the period until 6 November 2014, payments were made by the applicants in reduction of the invoiced amounts. No complaints were received from the applicant owners about the building work. There were irregular instalment payments until January 2015.
[7] Exhibit A1, page 275.
Mr Bishop sent a final email to the applicants on 1 December 2014 complaining about the failure of the applicants to honour their promise to make regular payments.[8] At that time, there were no complaints about the standard of the work or, for example, any incomplete works.
[8] Exhibit A1, page 55.
By letter of 16 January 2015,[9] the applicants made a number of complaints. It is appropriate that I set out the important portions of the text of this email. It relevantly reads:
[9] Exhibit A1, page 304.
Please be advised this is a email (and letter) to advise that the following requires attention.
·box gutter leaks at several points when it rains and during heavy dew
·water leaks in and around the chimney and
·concrete not laid
·building has not been completed as per plan
·work was estimated / quoted based on a draft to the value of $85-90,000. A timeframe of 12-16 weeks based on weather and other jobs and commenced on the 12th June 2013. The work is not completed now.
·final construction plans provided to council by Tony Wilson were valued at $75,000 for the work.
…
We have been billed over $165,000.
It has identified under the building Work Construction Act there are serious breaches;
·Firstly – no record of indemnity insurance and
·Secondly – no contract.
In addition can you please provide records for signed and agreed value of variations for
·balance of the existing roof area re‑roofed to match extension
·replacement of existing gutters and flashings to match extension
·replacement of existing eaves
·insul-bubble insulation of the existing roof
·thick batt insulation (size not known) of existing house
Can you please provide also the records of discussions with agreed hourly rates and/or set pricing of each of the subcontractors used:
·builders
·electrician
·plasters (sic): (plasterers)
·concretors
There are a number of preliminary comments that may be made about this letter. The complaint that concrete has not been laid and that the building has not been completed as per plan, I find is as a result of specific instructions given by the applicants to the respondents. I am satisfied, on the evidence, that a specific direction was given by the applicants to the respondents not to continue to do such work as lay concrete in the front area of the house or to complete the building as per the plans. This was because the applicants had decided that for a variety of reasons, they would complete the work themselves. This is quite understandable in the circumstances and it is a matter for the applicants on what basis they stage these works and who is to complete them.
I am also satisfied that all of the work according to the plans approved by council under the Building Rules consent were not estimated/quoted at a value of $85-90,000. There is no evidence before me that final construction plans were quoted at $75,000 for the works. There is no evidence of a $75,000 quote being given. There was no fixed quote. I am satisfied that over a period of negotiation between the parties their relationship evolved to an agreement that the respondents perform the work under the contract according to their instructions on a cost-plus basis. It is not necessarily possible to say that on a particular day there was an offer and acceptance but that is not necessary under the common law of Australia. I am satisfied that over time the parties came to a consensus that the contract would be charged on a cost-plus basis from the outset. That was the mutual intention of the parties. The applicants agreed to a cost-plus 10% plus GST contract and this is why they have been billed over $165,000 and, according to the evidence of the quantity surveyors, they have received work to that value or greater value.
In light of these findings, it is not necessary that I make any other separate findings about what constitutes the building contract. In relation to the variations, I am satisfied on the evidence that the applicants gave specific directions to the respondents to re‑roof the existing house to match the extension; to perform work on the existing gutters and flashings in order to match the extension and this included the necessary replacement of any existing eaves; and instructions were given for insulation of the existing roof.
I also consider that there is a logical impasse in the content of the letter from Mr Pettge. If it is the case that, as the applicants now contend, there was a fixed price contract of between $85-90,000 to complete the whole of the works, it is inexplicable that they have paid up to $165,000 on the accounts delivered by the respondents. I consider that it is a logical non sequitur for the applicants to have paid that much to the respondents, whilst under the understanding and belief that there was a fixed price contract of $85-90,000 and not to have ever raised an issue about the quantum of the amounts charged.
In his evidence, Mr Bishop denied the assertions within the letter although he accepts there were gutter leaks and water leaks in and around the chimneys as attempts were made by him to repair these problems. The evidence of the expert witnesses satisfies me that some work still needs to be done on these matters.
Notwithstanding the content of the letter, the applicants made payments to the respondent despite, what they say, were complaints raised by them in April 2014. The final invoice of the respondents in the amount of $20,805.40 inclusive of GST was rendered on 9 April 2014. This was some three months after the work had been completed by the respondents in January 2014. The last payment made occurred on 6 November 2014. At that time, the balance outstanding was $8,376. As I have earlier recounted, by letter of 1 November 2014, the respondents asked the applicants to complete the payment schedule that was outstanding. It was only on 16 January 2015, some two and a half months later that the applicants first alleged that the respondents had not completed the works. That assertion had never previously been made in the period of almost a year that the respondents had been offsite. This was also the first time that the respondents contended that a proportion of the works which had been certified under the Building Rules consent had not been completed.
I have already indicated that there are a number of evidentiary and logical difficulties with the assertions made by the applicants. I have considered some of them above. Another is that the respondents as builders, had been offsite for 12 months and had agreed to accept payments over time of the quite large second account. It was almost fully paid when the applicants first asserted that the works were incomplete. Then they asserted that there was a contract to complete the works for between $85-90,000 during a building period of between 12 and 16 weeks. It appears that the sum of $85-90,000 was not mentioned for some three years prior to that and I am unable to identify the source of the 12‑16 week timeframe for all of the work under the Building Rules consent permission to have been completed.
During 2015, there were further attendances on‑site by the respondents to carry out some repairs. In November 2016, Mr Paul Effingham made contact with the respondents to say that he had been retained as an expert and was seeking documentation. A lawyer’s letter followed from the applicants to the respondents in January 2016, some four years after the commencement of the relationship between the applicants and the respondents.
I am also satisfied that the respondents have done further work over and above that which was required under their contract with the applicants. The work that they performed was of value to the applicants well in excess of the amount charged. There is no contest that the following work completed by the respondents was not part of the work initially required by the applicants.
1.Carting away of existing carport concrete floor and footings spoil, the incurring of carting fees, costs for truck hire and dumping fees;
2.Demolition of the front verandah;
3.Retrim the ceiling frame to bedroom one and bedroom three of the applicants’ home as a result of the ceiling and cornice sagging because the support trimmers were more than one thousand millimetres apart, re‑screwing ceiling flashing as required and re‑attaching the cornices;
4.Re‑insulate the entire ceiling space with at least R3.5 batts after the applicants had organised for the existing blow‑in insulation to be vacuumed out;
5.Re‑roof the entire roof in order to match the new corrugated roof sheets installed by the respondents;
6.Install insul bubble sarking under the roof sheeting;
7.Remove and replace the solar hot water system;
8.Install flashing to the evaporative air‑conditioning unit;
9.Replace the existing gutters, facias and eave linings in order to match the new building work but after the new building work had been completed;
10.Install an under‑flashing to the perimeter of the domed roof between the house facia and the domed roof facia in order to conceal the box gutter, brackets and other fixings;
11.Only undertake work at the time that either of the applicants are present at home; and
12.Install all electrical works including downlighting, internal and external switches, verandah lights, external lights to garage, external GPOs (general power outlets), light and power in the garage and power for the roller door motor.
On the evidence before the Court from the two quantity surveyors, Mr Deans and Mr Sale, both of whom provided reports (Mr Deans of 10 October 2019 and Mr Sale of 11 December 2019) there is little challenge that the work done by the applicants has been performed to a price that is reasonable. Mr Deans opines that the respondents have performed the “lion’s share” of the work required and Mr Sale has largely accepted that work and he also opines that for work done by the respondents which is the subject of criticism, it would be inutile to repeat that work.
The differences of opinion between the two experts are summarised in the table on the first page of the report of Mr Sale (of 11 December 2019).
Scope
Chris Sale
Consulting
J.A. Deans
Variation
1
Estimated Total Cost of the entire works (Item 4.1)
$202,702.50
$194,920.00
$7,782.50
2
Estimated Cost of additional work – structurally acceptable (Item 4.2)
($1,002.00)
($1,002.00)
$0
3
Estimated cost of additional work – allegedly non‑compliant (Item 4.3)
$12,746.00
$12,515.00
$231.00
4
Estimated Cost to complete the works (Item 4.4)
($45,719.00)
($44,407.00)
($1,312.00)
Sub Total (Incl. GST)
$168,727.50
$162,026.00
$6,701.50
5
Estimated cost of scope not included in John Deans assessment (Item 4.,5)
$10,529.00
-
$10,529.00
6
Review of Preliminaries / Margin (Item 4.6)
$4,302.00
-
$4,302.00
Total (Incl. GST)
$183,558.50
$162,026.00
$21, 532.50
This summary requires a small amount of explanation. The estimate of the total cost for the entire work discloses a small difference of $7,782.50. Mr Sale has addressed that difference at paragraph 4.1.2 of his report. He has done so by comparing the items and rates which have been allowed by Mr Deans.
Mr Sale did a spot‑check review of the unit rates allowed by Mr Deans which revealed, in his opinion, a small number of rates that were lower than he would accept. A comparison of the rate which Mr Deans allowed and those rates which Mr Sale would allow are as follows:-
Demolition Works
J Deans Rate
C Sale Rate
a)
Item 4 – Demolish and remove existing pergola structure and flat roof decking. This rate needs to include for removal of debris.
$8.00
$18.00
b)
Item 5.0, 9.0, 12.0 and 13.0 – Allow to carefully remove part existing roof decking. Rate needs to allow for “careful” demolition including rainwater goods / flashings.
$9.00
$15.00
c)
Item 8.0 – Allow for temporary closure.
Rate needs to include for taping and subsequent removal.
$15.00
$90.00
Item
$250.00
d)
Item 11.0 – Demolish and remove front verandah
$10.00
$18.00
e)
Items 16.0 – Lift up and remove concrete block paving. Rate needs to include cleaning, stockpile and prepare area for new paving.
$8.00
$15.00
f)
Item 17.0 – Breakup / remove concrete
$15.00
$25.00
Substructure
g)
Item 21 – 100mm QR hardcore
$9.00
$12.00
h)
Items 24 / 25 – Excavate for pads.
Rate needs to consider set‑out and isolated small pits, remove debris.
$75.00
$95.00
Roof
i)
Items 42-45 – inspect roof and make repairs as necessary. Rate considered very low for four (4) isolated areas
$500.00
(Total)
$1,200.00
(Total)
j)
Items 64-66 – Ridge connections
$15.00
$25.00
k)
Item 83 – Remove roof mounted solar HWS
$125.00
$250.00
l)
Item 92 – Reinstall HWS
$150.00
$250.00
Walls and Framing
m)
Item 94 – 90x45 stud framing.
Rates need to allow for access to high level and building over / within existing.
$15.00
$20.00
Wall Linings
n)
Item 129 – Remove tanks, gas cylinder, spa motor etc and reinstall
$350.00
$500.00
External Paved Areas
o)
Item 148 / 149 – 100mm QR hardcore
$9.00
$12.00
External Stormwater
p)
Item 152 – 90 diameter storm drain
$45.00
$60.00
At the end of this summary, Mr Sale opines that it is necessary to increase the allowances over and above the amount provided for by Mr Deans to complete the works (in the amount of $194,920 including GST). Mr Sale agreed with that base amount, and he would allow an additional $7,782.50 to achieve a total billed price of $202,702.50.
There is no significant disagreement between the two quantity surveyors in relation to the estimated costs of the total works. This is to be compared with the contention of the applicants that the total works should have been completed for the amount of $85-90,000. I have already rejected that position put by the applicants. I think it is without any merit at all.
These calculations by both of the quantity surveyors gives some realistic assessment of the total cost of the entire works. The estimate of those totals of Mr Deans, rounded up to $195,000 is, at best for the applicants, some 217 percent higher than the amount for which the applicants contend (195 ÷ by 90 x 100). The sum of $203,000 as assessed by Mr Sale is some 225.5 percent higher than the amount contended for by the applicants (203 ÷ by 90 x 100).
From these total costs of building works, the estimated costs of additional works and the cost for work that is allegedly non‑compliant with building standards requirements and the estimated cost to complete the works are to be deleted or added. The estimate by Mr Sale was slightly in excess of that prepared by Mr Deans.
Mr Sale differed from Mr Deans in relation to the scope of works not included in his assessment and also the review of preliminaries and margins. I will discuss those below however, the assessment by Mr Deans is that the proper allowance for the work done by the respondents is $162,026. In the course of the work, the respondents rendered to the applicants, total invoices in the amount of $165,262.90. The total amount paid by the applicants is $156,886, leaving a difference of $8,376.90 including GST.
Having heard the evidence of Mr Deans and Mr Sale, it is apparent that there is very little difference between them in relation to quantities and costs. In his evidence, Mr Deans focussed only upon those areas where he thought there was a significant difference. I accept that there may have been other differences and, as I have identified, there are some instances where Mr Sale has made a greater allowance than Mr Deans such as the estimated cost to complete the works. Those differences are within a limited scope and I have taken the opportunity to assess the evidence accordingly. I am satisfied that the allowances made by Mr Sale reasonably reflect actual costs that would be incurred. I take as one example: under the roof item, Items K and L, an allowance of $275 has been made by Mr Deans for the removal of the roof mounted solar hot water system and for the reinstallation of that hot water system with a new system. It is not in contest between the parties that there has been a replacement hot water system installed. In my view, it is quite foreseeable that difficulties will be encountered by a plumber and a labourer in the removal of that system and in the reinstallation of the new system. The allowance by Mr Sale of $500 for the whole of that work I think more realistically reflects the actuality. I consider that his approach, where there are differences, probably more realistically reflects the correct assessment. I therefore am satisfied that the assessments made by Mr Sale, although only marginally different, are more realistic in the circumstances.
I therefore accept his assessment that the total cost of the entire works was in the amount of $202,702.50. I accept items 2, 3 and 4 of the executive summary. The difference between the two assessments after all of those allowances is $6,701.50.
Item 4 of the executive summary reflects the estimated cost to complete the works (item 4.4). This is the estimate of Mr Sale that was slightly higher than Mr Deans. Those works have not been undertaken. As I have outlined earlier in these reasons, I am satisfied that specific instructions were given by the applicants to the respondents not to undertake this work. However, even if I was wrong about that, and on the assumption that this work was done by the respondents for the applicants, then it would have been completed on a cost-plus basis to which the cost of GST would have been added. That is, the works would always have been done at the cost of the applicant in the amount of $45,7189 or the amount of $44,407. It follows that no allowance would reasonably be made in relation to that sum in any counter‑claim by the applicants because the work has not been completed, but if it was completed it would always have been completed at the cost of the applicants and therefore it is not an aspect of damages suffered by the applicants.
Turning then to items 5 and 6 of the executive summary, the first issue is the estimated costs of the scope of works not included in the assessment of Mr Deans (item 4.5). The allowance made by Mr Sale is in the amount of $10,529. This assessment is made on the basis of at least four items. They are:-
1. The removal and replacement of eaves linings to existing house (necessary as supported by facia that was replaced) (12 metres square) ($740).
2. Special sisalation (Retroshield) as requested by the owner to full area (extra over cost) $2,130.
3. Remove/reinstall window shutters front elevation (for brickwork) $440.
4. Electrical services including downlights, fans, antenna (as invoiced) $7,219.
The total cost of these additional works is in the amount of $10,529. Having regard to the findings that I have made earlier, I accept that the scope of these works are properly allowable in an assessment of the costs of the entire works. The second item, at paragraph 4.6 of the report of Mr Sale is the review of preliminaries, allowances, margin and general contingency provisions. Mr Deans made an allowance of approximately 2.9 percent of the costs of the full scope of works for these amounts. Mr Sale was of the view that that allowance was low considering the following matters:-
1.The works were completed in the winter months which would have necessitated such things as temporary tarpaulins and water diversions;
2.There was a stop/start nature of the works because the builder was limited to working on one verandah at a time and was not allowed to work on site if one of the owners was not present. Mr Sale has assessed that this would have increased the overall build time by four to six weeks resulting in significant additional supervision time, higher costs for rubbish bins, toilets and the like; and
3.The overall value of the project was low despite the fact that fixed costs such as toilets and temporary services; such things are constant despite the value of the works.
In his report, Mr Sale opines that the preliminaries allowance should be at a minimum of 5.5 percent. That resulted in an increase of $4,302 inclusive of GST. In assessing that evidence, I have left to one side the low overall value of the project. I accept the opinion of Mr Sale that the works were completed in the winter months and therefore it would have been necessary to supply and install temporary tarpaulins and water diversions.
In evidence, the applicants made quite clear to me that they would not allow the respondents on‑site to carry out works if one of them was not present. They also agreed that there were occasions when, for example, Ms Skippy Rowe was absent working in Western Australia on a fly‑in/fly‑out basis and there were occasions when, for example, in those periods, Mr Rowe was absent from the site for a number of days at a time for his work. This had the effect of increasing the overall build time and also increased the additional time spent in supervision and this resulted in higher costs. On balance, I accept the assessment by Mr Sale of the preliminaries at 5.5 percent. I therefore accept the increase of $4,302.
As a consequence, I accept that upon a proper adjustment, the scope of the works completed by the respondents was in the amount of $183,558.50. The amount invoiced by the respondents was $165,262.90. In that assessment, and in the assessment made by Mr Deans, an allowance was made for the estimated costs of additional work in relation to non‑compliant work. Mr Sale assessed that figure at $12,746 and Mr Deans assessed that figure at $12,515.[10]
[10] See item 4.3 of the Sale report.
The logic of the executive summary prepared by Mr Sale, with which Mr Deans agrees in terms of its structure, is to reach an assessment of the scope of the work completed by the respondents in the amount of $183,558.50. Mr Sale has taken into account (as did Mr Deans in his calculation of $162,026) the estimated costs to complete the works together with the estimated cost of additional work in relation to non‑compliant works. Mr Sale made a higher assessment of $12,746 for this latter sum. Those costs are assessed by Mr Deans in his report at part B “Details of non‑compliant works to be rectified as recommended by Herriot Consulting Engineers”. Mr Deans has made his assessment based upon a report by Herriot Consulting Engineers which is not before me in evidence. That report was prepared by a Mr Lee. Mr Lee refused to attend to give evidence at the request of the applicants and so his report and his evidence is not before the Court. Therefore, the assessment made by both of the quantity surveyors in relation to the estimated cost of additional work, insofar as it relies upon the report of Mr Lee, has not been proved. It therefore follows that on the evidence before the Court, there is no basis to reach an assessment of the amount of $12,515 under the Deans’ report or the amount of $12,746 under the Sale report. On the state of the evidence before me, there is no basis to make an adjustment for that sum, even though such an adjustment has been made in both of the reports of Mr Sale and Mr Deans.
The estimated costs to complete the works are to be found in part B of the report of Mr Deans in the section entitled “Details of opinion of indicative construction costs for approved development plan and works and incomplete and rectification works”. These works are described in a set of items. Item 1 is the cost of replacement of windows to the meal area. This was the replacement of the high aluminium sliding windows and replacement with patio doors.[11] I am satisfied that the instructions given to the respondents by the applicants were that this work was not to be carried out by the respondents.
[11] See items 242-247 of the report of Mr Deans.
Item 2 was for the sliding door replacement in the family room. I am satisfied that the applicants gave specific instructions to the respondents not to carry out this work. The third item, item 4, is the render finish to the Hardie sheet wall. I am satisfied that instructions were given by the applicants to the respondents not to carry out this work because the applicants agreed with the suggestion of the respondents that rather than the wall being rendered, the wall should be completed in brick to match existing brickwork.
The next item is item 10: demolition. I am satisfied that this item was also the subject of instructions given by the applicants to the respondents that this work not be done.
The next item, item 12, is for footings and piers in relation the Makrolon roof. I am satisfied on the evidence that the applicants instructed the respondents not to carry out this work. This was at the suggestion of the respondents. In the original plans, there were uprights supporting the Makrolon roof which, in the main, were largely cosmetic. However, when the site is properly assessed, those uprights would have significantly interfered with the broad space of the pergola area, would have been a hindrance and would have been of no real utility. On that basis, the suggestion made by the respondents to the applicants was that the uprights be removed and the Makrolon roof be attached to the existing and new structures. This is what has occurred following specific instructions being given to the respondents by the applicants. It was very much a common sense solution.
The next item is item 14: driveway. I am satisfied that the respondents were instructed by the applicants not to carry out this work. The final item is item 21: paving for perimeter and verandahs. I am similarly satisfied that instructions were given by the applicants to the respondents not to carry out this work.
This discussion identifies that in relation to at least two items, namely items 3 and 4 on the executive summary of Mr Sale which matches the opinions expressed by Mr Deans on the same items, there is no evidence before the Court of the estimated costs of the additional work. I am satisfied that the estimated costs to complete the work, although not under challenge, relate to works about which instructions were given by the applicant as I have discussed above. However, in the overall scheme of the executive summary, it is necessary to take those two matters into account when assessing the final scope of works and the amount of work carried out by the respondents on behalf of the applicants. This informs the calculation of the cross‑claims.
Therefore, the overall effect is that I am satisfied that the scope of works completed by the respondents on behalf of the applicants according to their specific instructions was in the amount of $183,558.50. I arrive at this conclusion after having taken into account the estimated costs of additional works which have not been proved before me as well as the estimated costs to complete the works which I am satisfied the applicants specifically instructed the respondents not to complete. However, those two adjustments are appropriate to be made because both Mr Sale and Mr Deans commenced their calculations from the estimated total costs of the entire works. That calculation can only be made by taking into account the whole of the works and therefore adjustments to incomplete work are appropriate to be made.
There is also a second aspect of relevance of this calculation. If it were necessary to make an assessment of the substance of the claim of the respondents on a quantum meruit basis, I am satisfied that the reasons payable in respect of the work undertaken by the respondents is $183,558.50 on the same basis.
I turn to the specific findings to be made based upon my assessment of the evidence and the assessment of the evidence given by the expert witnesses.
A comparison of the pleadings shows that the parties do not dispute that a binding agreement was entered into between the parties for the performance of these works. I am satisfied that the following findings may be made:-
1.The respondents and the applicants entered into a contract to perform building works. Although it is not necessary for me to make any particular finding on this point, even if the applicants are correct that there is no written contract conforming with the requirements of the Building Work Contractors Act 1995 (SA), I am satisfied that the same enforceable contract arises between the parties on the same basis: Corradini & Anor v O’Brien Lovrinov Crafter Pty Ltd (2000) 77 SASR 125 at [111].
2.On 2 April 2013, after a discussion between the applicants and the respondents about the method of charging for the building work, an agreement was made between the parties that the respondents would charge the applicants on a cost-plus 10% plus GST basis. Mr Bishop described this type of charging method as a charge‑up or cost-plus arrangement. It was the applicants who chose to be charged on that basis after being informed by Mr Bishop that this was the cheapest way for them to undertake the work. The reports of both Mr Sale and Mr Deans discloses that this advice was correct. I reject the attempt by the applicants in their evidence to suggest that there was no agreement as to terms or alternatively a reasonably amount properly incurred would be paid. It is also pertinent, although it does not determine the issue, that on a previous contract for other work done by the respondents for the applicants, the charging method was on the same cost-plus basis and that the applicants made no challenge to the respondents’ accounts until a full year after the final account was rendered.
It is not inconsistent with that position for the applicants themselves to have done some of the work required under the plan which received Building Rules consent. They did painting, removal of insulation, some demolition work, some concreting work, the stormwater work and they were to do the paving work themselves.
3.I am satisfied the parties discussed the costs plus agreement and there was no price fixed under what would otherwise be identified as a fixed price contract. There was no final quotation as such and so the work commenced and progressed on a basis which was in the absence of any fixed price. Therefore, the contention of the applicants of a fixed price of between $85-90,000 is implausible, it being between 217 and 225 percent below the actual estimated total cost of the works according to Mr Deans and Mr Sale.
4.In the course of the building work, invoices were rendered from time to time all of which were charged on a mark‑up basis. These invoices were paid except to the extent of the amount of $8,536.
5.Under each of the invoices provided by the respondents, copies of the invoices received from the various trades were also provided. I accept the submission of the respondents, that if there was a fixed price contract of between $85-90,000, there would be no utility or purpose in providing these copy accounts.
Earlier in these reasons I have set out the circumstances in which an assertion was made by the applicants of a fixed price contract. This was more than a year after work had been completed and a long time after payments had ceased. It is difficult to perceive why in those circumstances, an assertion of a fixed price contract would not have been made by the applicants from the date of the first invoice received. In my view, even if I am wrong about the discussion concerning a fixed price contract, I am satisfied, as a matter of inference, a finding is available to me that the parties were agreed that this should be a cost-plus contract.
I am satisfied that, having regard to these findings, the question for my determination is whether or not the applicants have paid the respondents’ invoices which were issued on a contractual cost-plus basis. I accept the submission of the respondents that Exhibit R2 discloses that the invoiced amount had not been paid in full. I have also set out in detail a discussion of the contents of the reports of Mr Deans and Mr Sale, the quantity surveyors. No evidence was received from Herriott Engineers in support of the estimated costs of additional work which was allegedly non‑compliant. I also refer to my discussion in relation to the costs to complete the work and repeat that any work done by the respondents for the applicants would be carried out on a cost-plus basis. I am satisfied from the evidence of Mr Bishop that the amounts that have been charged to the applicants for the work that he carried out are justified on the basis of time spent and invoices received. I am also satisfied, that upon request, Mr Bishop provided a detailed breakdown of the costs incurred by the respondent.[12] This information was supplied in response to the letter from Mr Pettge, the accountant. As a further guide to the assessment of these claims, the two quantity surveyors have both assessed the estimated total costs of the entire works and then made an assessment of the scope of works completed by the respondents. For the reasons above explained, I have preferred the view expressed by Mr Sale however, it is noteworthy that there is very little difference between the two expressed opinions.
[12] Exhibit A1, pages 272, 276 and 283.
The work performed by the respondents has been accepted by the applicants, payments have been made and issues were only raised a year after the works were completed. No challenge was made in evidence nor was there any proposition put to Mr Bishop that any amount charged was unreasonable or otherwise unjustified. There was no suggestion made in cross‑examination or in evidence that the invoices rendered by Mr Bishop were other than a proper reflection of the costs incurred.
I am satisfied that under the contract between the parties, the work that was done by the respondents for the applicants fulfilled the whole of the contractual obligations between the applicants and the respondents and I am satisfied that the applicants have failed to pay the amount of $8,376.90.
Based upon those findings, it is unnecessary for me to make any findings in relation to the respondents’ alternative case. If it were necessary for me to make findings I refer to the discussion set out above about the reports of the two quantity surveying experts. In his report, Mr Sale opined that the scope of the works completed by the respondents is $183,558.50 and the respondents have been paid $156,886. However, that calculation allows for the inclusion of a debit of $12,746 for defective works. If that figure is deducted from the figure of $183,558.50, the figure remaining is $170,804.50. The difference between that figure and the amount paid, namely $156,886 is in the amount of $13,918.50. If it were necessary to make a finding, that is the amount of judgment to which the respondents are entitled on a quantum meruit basis.
Earlier in these reasons I have addressed the defective work in my discussion of the reports of the quantity surveyors. The opinion of Mr Deans, retained on behalf of the applicants, was based upon the report of Mr Andrew Lee of Herriott Consulting Engineers. Mr Lee was not called to give evidence. As I have earlier discussed, there is no basis in evidence to substantiate any allegation of defective works. I accept the submission of the respondents that there is therefore no evidentiary foundation for any allegation that any particular remedial work is required. There is therefore no evidentiary basis for the figure referred to at item 3 of the executive summary of Mr Sale (Mr Sale’s assessment: $12,746; Mr Dean’s assessment: $12,515).
Separately, there is no evidence to sustain any allegation of allegedly defective work, apart from the evidence given on behalf of the applicants by Mr Paul Effingham. I am satisfied from the evidence of Mr Effingham that there are a number of matters that require attention by the builder. The findings of Mr Effingham fall largely into two categories. The first relate to incomplete building works such as, for example, the replacement of the window to the meals area. I have earlier dealt with these matters. My findings are that these incomplete works were as a result of the instructions given to the respondents by the applicants. There is a second category of items. These relate to a number of tasks completed by the builder where either the engineer had not certified for the result or alternatively the result could not be confirmed because the work was concealed and the respondents as builders should be requested to provide information. There are only a small number of items and they are as follows:-
1.Item 5 of the report of Mr Effingham; this item concerns the roof framing timbers used in the reconnection between the main roof cover and the new garage roof. Mr Effingham advises that the builder should have this building solution implemented and approved by the approving authority engineer and provide evidence of suitability. In my opinion, that is a task that is usually required to be done by the builder.
2.Item 6 in the report of Mr Effingham: roof frame connection. Mr Effingham opines that there are no visible rafter framing anchors. His comment and recommendation is that as he was unable to confirm if the concealed fixings have been used, therefore the builder should be asked to provide evidence of what anchoring details were adopted or insulation of the framing anchors as specified. This is a matter that should be carried out by the builder.
3.Item 7 in the report of Mr Effingham: the extension of the ridge boards. He describes the problem as being differing connection details throughout the roof frame between the existing ridge boards and the new ridge boards. Mr Effingham recommends that the builder should have the building solution approved by the approving authority engineer.
4.Item 9 in the report of Mr Effingham: the issue is the brick infill above the windows. The plans suggested that the external cladding above verandah no. 2 and verandah no. 4 and the porch be lightweight timber frame lined with Hardie cement sheet and not brickwork. His recommendation is that the change, which he does not specifically criticise, should be approved in the same manner as for the garage approvals in the original design. Alternatively, an engineer could inspect the work and provide a certification for the works.
5.Item 17 in the report of Mr Effingham: the roof frame. Mr Effingham opines that the roof frame design has been changed from the approved plans. He recommends that the timber frame be inspected by an approved timber engineer and have the works approved.
I consider these to be genuine complaints about the work and at one level about which particular steps should be taken. However, I consider that there is a real practical difficulty which arises here. When he gave evidence, Mr Effingham said that as the building had stood for 10 years without difficulties, it was unlikely that there was any discernible defect in the building work. He accepted that if these tasks were to be carried out, some of the work would need to be invasive of the existing building work. Also, the extent of that work would depend upon the opinion of the engineer who has inspected the works. There may well be differences between engineers as to what is required. It is difficult to know how such a difference may be resolved and by what method. All of this is a matter for the applicants about whether or not they wish for investigations to be carried out as recommended by Mr Effingham or whether, as may well be the sensible position, matters are best left alone because the building work is performing properly. There are two exceptions to that position. These relate to the leakage around the flue for the heater and the drainage from the box gutter. I consider that on any basis, these are works that are required to be carried out.
In light of these comments, I think the appropriate position is for the parties to have the opportunity to consider these reasons and, if possible reach a consensus position about what may be done. In the absence of consensus, it would be necessary for me to make orders that particular steps need to be taken. The difficulty is that it will be necessary to properly express those orders and I would need to have further input from the parties about them.
In the result, I would allow the respondents’ counter‑claim in the amount of $8,376.90 plus interest. I will hear the parties as to the calculation of the interest and on any question of costs.
I will hear the parties further in relation to orders, if any, to be made arising out of the report of Mr Effingham and I would otherwise dismiss the applicants’ claims.
In the course of the hearing, I received into evidence a large volume of documentary materials. I considered that much of it was irrelevant. I addressed that with Mrs Rowe and with counsel for the respondents. I said at the time that I would accept the volumes into evidence as Exhibit MFI A1 but that, for the sake of the evidence before the Court, I required there to be an identification of the date of the document, the page of the tender book, a cross‑reference to the transcript and a source of materials. I have received from the solicitors for the respondents, a document entitled “Consolidated table of candidates for tender”. This is the document which I requested be provided to me for consideration of those documents which are to be identified as admitted to evidence. I have reviewed them. I have not received any submission from the applicants. I have reviewed the transcript and the documentation in the course of preparing my judgment. I have cross‑referenced the table provided to me by the respondents and the material that I have separately identified. I am satisfied that the “consolidated table of candidates for tender” as provided is correct. It is attached to these reasons.[13]
[13] Annexure A.
I order that the content of the Tender Book volume 1 reflect the content of the consolidated table. I further order that the second folder of material received by me, namely the experts’ folder, should contain the experts reports as identified in the table for tender, commencing at 10 October 2019 experts’ folder page 112 through to and including 27 February 2020 experts’ folder page 202.
I further order that, for volume 2 of the Tender Book, pages 409-428 inclusive and page 431 being the whole of the witness statement of Mr Matthew Bishop should be included.
I will hear the parties further in relation to the form of judgment on the claim, the counter‑claim, costs and any other matters.
Annexure A
Consolidated Table of Candidates for Tender
Date Page of Tender Book Page of Transcript Source 12 November 2012 Tender Book Volume 1 – pg 001 32 Oral Evidence - XXN: S Rowe 12 November 2012 Tender Book Volume 1 – pg 002 31 Oral Evidence - XXN: S Rowe 12 November 2012 Tender Book Volume 1 – pg 002 213 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 002 214 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 002 215 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 001-002 221 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 001 221 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 002 222 Oral Evidence - XXN: M Bishop 12 November 2012 Tender Book Volume 1 – pg 002 Revised Witness Statement of Matthew Bishop 20 November 2012 Tender Book Volume 1 – pg 003 Chronology to revised Witness Statement 20 November 2012 Tender Book Volume 1 – pg 005 Chronology to revised Witness Statement December 2012 Tender Book Volume 1 – pg 007 Chronology to revised Witness Statement 5 December 2012 Tender Book Volume 1 – pg 007 43 Oral Evidence - XXN: S Rowe 5 December 2012 Tender Book Volume 1 – pg 008-012 43 Oral Evidence - XXN: S Rowe 5 December 2012 Tender Book Volume 1 – pg 013-014 46 Oral Evidence - XXN: S Rowe 5 December 2012 Tender Book Volume 1 – pg 007 & 013 Chronology to revised Witness Statement 5-11 December 2012 Tender Book Volume 1 – pg 020-022 46 Oral Evidence - XXN: S Rowe 5-11 December 2012 Tender Book Volume 1 – pg 021 47 Oral Evidence - XXN: S Rowe 11 December 2012 Tender Book Volume 1 – pg 020 Chronology to revised Witness Statement 12 December 2012 Tender Book Volume 1 – pg 023 47 Oral Evidence - XXN: S Rowe 12 December 2012 Tender Book Volume 1 – pg 024-028 47 Oral Evidence - XXN: S Rowe 12 December 2012 Tender Book Volume 1 – pg 040 48 Oral Evidence - XXN: S Rowe 12 December 2012 Tender Book Volume 1 – pg 023 Chronology to revised Witness Statement 12 December 2012 Tender Book Volume 1 – pg 029 & 031 Chronology to revised Witness Statement 12 December 2012 Tender Book Volume 1 – pg 033 Chronology to revised Witness Statement 12 December 2012 Tender Book Volume 1 – pg 040 & 042 Chronology to revised Witness Statement January 2013 Tender Book Volume 1 – pg 048 & 055 Chronology to revised Witness Statement 10 January 2013 Tender Book Volume 1 – pg 063 48 Oral Evidence - XXN: S Rowe 10 January 2013 Tender Book Volume 1 – pg 063 140 Oral Evidence - XXN: AJ Rowe 10 January 2013 Tender Book Volume 1 – pg 048 & 055 Chronology to revised Witness Statement 10 January 2013 Tender Book Volume 1 – pg 063 & 065 Chronology to revised Witness Statement 11 January 2013 Tender Book Volume 1 – pg 066 & 064 Chronology to revised Witness Statement 11 January 2013 Tender Book Volume 1 – pg 068 Chronology to revised Witness Statement 11 January 2013 Tender Book Volume 1 – pg 071 Chronology to revised Witness Statement 11 January 2013 Tender Book Volume 1 – pg 074 Chronology to revised Witness Statement 16 January 2013 Tender Book Volume 1 – pg 075 49 Oral Evidence - XXN: S Rowe 16 January 2013 Tender Book Volume 1 – pg 075 143 Oral Evidence - XXN: AJ Rowe 16 January 2013 Tender Book Volume 1 – pg 075 165 Oral Evidence - XN: P Effingham 16 January 2013 Tender Book Volume 1 – pg 081 & 086 Chronology to revised Witness Statement 18 January 2013 Tender Book Volume 1 – pg 065 & 090 Chronology to revised Witness Statement 18 January 2013 Tender Book Volume 1 – pg 102 Chronology to revised Witness Statement 23 January 2013 Tender Book Volume 1 – pg 103 & 150 Chronology to revised Witness Statement 25 January 2013 Tender Book Volume 1 – pg 107 & 120 Chronology to revised Witness Statement 26 January 2013 Tender Book Volume 1 – pg 133 Chronology to revised Witness Statement 28 January 2013 Tender Book Volume 1 – pg 135 & 134 Chronology to revised Witness Statement 28 January 2013 Tender Book Volume 1 – pg 136 Chronology to revised Witness Statement 28 January 2013 Tender Book Volume 1 – pg 138 Chronology to revised Witness Statement 29 January 2013 Tender Book Volume 1 – pg 138 Chronology to revised Witness Statement 29 January 2013 Tender Book Volume 1 – pg 136 Chronology to revised Witness Statement 30 January 2013 Tender Book Volume 1 – pg 139 Chronology to revised Witness Statement 11 February 2013 Tender Book Volume 1 – pg 150 & 140 Chronology to revised Witness Statement 13 February 2013 Tender Book Volume 2 – pg 510 219 Oral Evidence - XXN: M Bishop 13 February 2013 Tender Book Volume 2 – pg 510 220 Oral Evidence - XXN: M Bishop 22 February 2013 Tender Book Volume 1 – pg 176 Chronology to revised Witness Statement 22 February 2013 Tender Book Volume 1 – pg 182 Chronology to revised Witness Statement 25 February 2013 Tender Book Volume 1 – pg 184 Chronology to revised Witness Statement 26 February 2013 Tender Book Volume 1 – pg 219 165 Oral Evidence - XN: P Effingham 26 February 2013 Tender Book Volume 1 – pg 185 Chronology to revised Witness Statement 28 February 2013 Tender Book Volume 1 – pg 212 & 219 Chronology to revised Witness Statement 7 March 2013 Tender Book Volume 1 – pg 223 Chronology to revised Witness Statement 17 March 2013 Tender Book Volume 1 – pg 225 52 Oral Evidence - XXN: S Rowe 17 March 2013 Tender Book Volume 1 – pg 225 Chronology to revised Witness Statement 18 March 2013 Tender Book Volume 1 – pg 230 Chronology to revised Witness Statement 2 April 2013 Tender Book Volume 1 – pg 232 Chronology to revised Witness Statement 2 April 2013 Tender Book Volume 1 – pg 232 Chronology to revised Witness Statement 2 April 2013 Tender Book Volume 1 – pg 232 Chronology to revised Witness Statement 11 April 2013 Tender Book Volume 1 – pg 226 53 Oral Evidence - XXN: S Rowe 11 April 2013 Tender Book Volume 1 – pg 233 Chronology to revised Witness Statement June 2013 – January 2014 Tender Book Volume 2 – pg 593 Chronology to revised Witness Statement 30 June 2013 Tender Book Volume 1 – pg 235 Chronology to revised Witness Statement July 2013 – January 2014 Tender Book Volume 2 – pg 574 Chronology to revised Witness Statement July 2013 – December 2013 Tender Book Volume 2 – pg 584 Chronology to revised Witness Statement August 2013 – December 2013 Tender Book Volume 2 – pg 604 Chronology to revised Witness Statement 3 September 2013 Tender Book Volume 1 – pg 238 59 Oral Evidence - XXN: S Rowe 3 September 2013 Tender Book Volume 1 – pg 239 60 Oral Evidence - XXN: S Rowe 3 September 2013 Tender Book Volume 1 – pg 237 60 Oral Evidence - XXN: S Rowe 3 September 2013 Tender Book Volume 1 – pg 237 Chronology to revised Witness Statement 3 September 2013 Tender Book Volume 1 – pg 238 Chronology to revised Witness Statement 3 September 2013 Tender Book Volume 1 – pg 240 Chronology to revised Witness Statement 5 September 2013 Tender Book Volume 1 – pg 237 Chronology to revised Witness Statement 23 September 2013 Tender Book Volume 1 – pg 243 Chronology to revised Witness Statement 27 October 2013 Tender Book Volume 1 – pg 246 63 Oral Evidence - XXN: S Rowe 27 October 2013 Tender Book Volume 1 – pg 244 64 Oral Evidence - XXN: S Rowe 27 October 2013 Tender Book Volume 1 – pg 244 158 Oral Evidence - XXN: AJ Rowe 27 October 2013 Tender Book Volume 1 – pg 246 Chronology to revised Witness Statement 30 October 2013 Tender Book Volume 1 – pg 246 Chronology to revised Witness Statement 3-5 December 2013 Tender Book Volume 1 – pg 259 64 Oral Evidence - XXN: S Rowe 3-5 December 2013 Tender Book Volume 1 – pg 257 65 Oral Evidence - XXN: S Rowe 3-5 December 2013 Tender Book Volume 1 – pg 258 67 Oral Evidence - XXN: S Rowe 3-5 December 2013 Tender Book Volume 1 – pg 259 158 Oral Evidence - XXN: AJ Rowe 3-9 December 2013 Tender Book Volume 1 – pg 254 Revised Witness Statement of Matthew Bishop 9 December 2013 Tender Book Volume 1 – pg 254 Chronology to revised Witness Statement 13 December 2013 Tender Book Volume 1 – pg 256 Revised Witness Statement of Matthew Bishop 13 December 2013 Tender Book Volume 1 – pg 265 Chronology to revised Witness Statement 24 December 2013 Tender Book Volume 1 – pg 261-262 70 Oral Evidence - XXN: S Rowe 24 December 2013 Tender Book Volume 1 – pg 263 Revised Witness Statement of Matthew Bishop 24 December 2013 Tender Book Volume 1 – pg 261 & 263 Chronology to revised Witness Statement 31 December 2013 Tender Book Volume 1 – pg 261 & 264 Chronology to revised Witness Statement 1 January 2014 Tender Book Volume 1 – pg 265 95 Oral Evidence - XXN: S Rowe 1 January 2014 Tender Book Volume 1 – pg 261 147 Oral Evidence - XXN: AJ Rowe 1 January 2014 Tender Book Volume 1 – pg 261 Chronology to revised Witness Statement 1 January 2014 Tender Book Volume 1 – pg 265 Chronology to revised Witness Statement 1-7 January 2014 Tender Book Volume 1 – pg 266 Revised Witness Statement of Matthew Bishop 7 January 2014 Tender Book Volume 1 – pg 266 Chronology to revised Witness Statement 4 February 2014 Tender Book Volume 1 – pg 267 Chronology to revised Witness Statement 17 March 2014 Tender Book Volume 1 – pg 268 & 270 Chronology to revised Witness Statement 3 April 2014 Tender Book Volume 1 – pg 271 74 Oral Evidence - XXN: S Rowe 3 April 2014 Tender Book Volume 1 – pg 271 Chronology to revised Witness Statement 9 April 2014 Tender Book Volume 1 – pg 272-274 74 Oral Evidence - XXN: S Rowe 9 April 2014 Tender Book Volume 1 – pg 279 81 Oral Evidence - XXN: S Rowe 9 April 2014 Tender Book Volume 1 – pg 279 Revised Witness Statement of Matthew Bishop 9 April 2014 Tender Book Volume 1 – pg 272 Revised Witness Statement of Matthew Bishop 9 April 2014 Tender Book Volume 1 – pg 275 Chronology to revised Witness Statement 9 April 2014 Tender Book Volume 1 – pg 276 Chronology to revised Witness Statement 10 April 2014 Tender Book Volume 1 – pg 280 Revised Witness Statement of Matthew Bishop 24 April 2014 Tender Book Volume 1 – pg 288 Chronology to revised Witness Statement 4 May 2014 Tender Book Volume 1 – pg 288 Chronology to revised Witness Statement 8 May 2014 Tender Book Volume 1 – pg 288 Chronology to revised Witness Statement 15 May 2014 Tender Book Volume 1 – pg 288 Chronology to revised Witness Statement 23 May 2014 Tender Book Volume 1 – pg 288 Chronology to revised Witness Statement 29 June 2014 – 16 January 2015 Tender Book Volume 1 – pg 296 Chronology to revised Witness Statement 1 December 2014 Tender Book Volume 1 – pg 300 Revised Witness Statement of Matthew Bishop 1 December 2014 Tender Book Volume 1 – pg 300 Chronology to revised Witness Statement 14 January 2015 Tender Book Volume 1 – pg 301 Chronology to revised Witness Statement 15 January 2015 Tender Book Volume 1 – pg 302 Chronology to revised Witness Statement 16 January 2015 Tender Book Volume 1 – pg 304 88 Oral Evidence - XXN: S Rowe 16 January 2015 Tender Book Volume 1 – pg 304 Revised Witness Statement of Matthew Bishop 16 January 2015 Tender Book Volume 1 – pg 304 Chronology to revised Witness Statement 16 February 2015 Tender Book Volume 1 – pg 305 Chronology to revised Witness Statement 17 April 2015 Tender Book Volume 1 – pg 317 Chronology to revised Witness Statement 26 April 2015 Tender Book Volume 1 – pg 318 Chronology to revised Witness Statement 1 June 2015 Tender Book Volume 1 – pg 319 Chronology to revised Witness Statement 4 June 2015 Tender Book Volume 1 – pg 319 Chronology to revised Witness Statement 1 January 2016 Tender Book Volume 1 – pg 321 Chronology to revised Witness Statement 7 January 2016 Tender Book Volume 1 – pg 322 Chronology to revised Witness Statement 15 March 2016 Tender Book Volume 1 – pg 325 Chronology to revised Witness Statement 4 November 2016 Tender Book Volume 1 – pg 328 Chronology to revised Witness Statement 7 November 2016 Tender Book Volume 1 – pg 329 Chronology to revised Witness Statement 19 December 2016 Tender Book Volume 1 – pg 364 91 Oral Evidence - XXN: S Rowe 19 December 2016 Tender Book Volume 1 – pg 364 Chronology to revised Witness Statement 20 February 2017 Expert Reports Folder – pg 203-224 182 Oral Evidence - XN: F Centofanti 26 July 2017 Expert Reports Folder – pg 001-035 167 Oral Evidence - XXN: P Effingham 22 September 2017 Expert Reports Folder – pg 036-039 167 Oral Evidence - XXN: P Effingham 14 December 2017 Tender Book Volume 1 – pg 367 Chronology to revised Witness Statement 19 January 2018 Tender Book Volume 1 – pg 370 217 Oral Evidence - XXN: M Bishop 19 January 2018 Tender Book Volume 1 – pg 369 217 Oral Evidence - XXN: M Bishop 19 January 2018 Tender Book Volume 1 – pg 371-373 217 Oral Evidence - XXN: M Bishop 19 January 2018 Tender Book Volume 1 – pg 390 217 Oral Evidence - XXN: M Bishop 19 January 2018 Tender Book Volume 1 – pg 370-390 217 Oral Evidence - XXN: M Bishop 13 August 2018 Tender Book Volume 1 – pg 392 Chronology to revised Witness Statement 16 August 2018 Tender Book Volume 1 – pg 406 Chronology to revised Witness Statement 13 November 2018 Tender Book Volume 1 – pg 408 Chronology to revised Witness Statement 10 October 2019 Expert Reports Folder – pg 112 225 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 125 226 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 145 226 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 144 226 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 143 226 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 146 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 147 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 153 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 154 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 155 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 161 228 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 162 227 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 166 228 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 162 228 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 163-166 228 Oral Evidence - XN: JA Deans 10 October 2019 Expert Reports Folder – pg 130 231 Oral Evidence - XXN: JA Deans 10 October 2019 Expert Reports Folder – pg 134 240 Oral Evidence - XXN: JA Deans 10 October 2019 Expert Reports Folder – pg 154 246 Oral Evidence - XXN: JA Deans 10 October 2019 Expert Reports Folder – pg 162 247 Oral Evidence - XXN: JA Deans 10 October 2019 Expert Reports Folder – pg 129 249 Oral Evidence - XXN: JA Deans 11 December 2019 Expert Reports Folder – pg 230 255 Oral Evidence - XN: CJ Sale 11 December 2019 Expert Reports Folder – pg 233 256 Oral Evidence - XN: CJ Sale 17 January 2020 Expert Reports Folder – pg 190 225 Oral Evidence - XN: JA Deans 17 January 2020 Expert Reports Folder – pg 202 225 Oral Evidence - XN: JA Deans 27 February 2020 Expert Reports Folder – pg 202 229 Oral Evidence - XXN: JA Deans 27 February 2020 Expert Reports Folder – pg 202 230 Oral Evidence - XXN: JA Deans Undated Tender Book Volume 2 – pg 409-428 165 Oral Evidence - XN: P Effingham Undated Tender Book Volume 2 – pg 411 166 Oral Evidence - XN: P Effingham Undated Tender Book Volume 2 – pg 424 166 Oral Evidence - XN: P Effingham Undated Tender Book Volume 2 – pg 431 Revised Witness Statement of Matthew Bishop