Sam Technology Communications Pty Ltd v Stowe Australia Pty Ltd

[2007] NSWLC 12

Local Court of New South Wales

CITATION:	Sam Technology Communications Pty Ltd v Stowe Australia Pty Ltd [2007] NSWLC 12
JURISDICTION:	Civil
PARTIES:	Sam Technology Communications Pty Ltd Stowe Australia Pty Ltd
FILE NUMBER:	12502/04
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	01/29/2007
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Contracts - Whether contract incorporated term that contract be "back-to-back" with defendant's head contract with third party - Whether plaintiff in breac\h of contract by failing to meet deadline for practical completion - Whether defendant entitled to replace plaintiff or employ alternative contractor to complete work - Quantum
LEGISLATION CITED:
CASES CITED:
REPRESENTATION:	Mr P Barham (Counsel) instructed by Ziman & Ziman Solicitors Mr B Antcliffe (Counsel) instructed by Turner Freeman Solicitors
ORDERS:	Verdict for the plaintiff on its claim. Quantum to be determined. Verdict for cross-claimant. Quantum to be determined. I direct that, within 14 days, the parties file either an agreed proposal for orders for the assessment of damages or, failing such an agreement, that the parties file and serve their proposals together with short written submissions in support. I propose to make further directions in chambers. I reserve the question of costs. Parties may have liberty to apply.

1. The plaintiff and defendant are two companies that provide electrical and electronic services to the construction industry. The plaintiff, Sam Technology Pty Ltd (“Sam”) specialises in the design and installation of telecommunications systems such as intercoms, closed circuit television systems, telephones and a security system known as a “master antenna television system” (or “MATV”). The defendant, Stowe Australia Pty Ltd (“Stowe”) is a bigger company of a similar type.

2. The dispute now for determination arose out of work done in 2002 and early 2003 by Sam as a sub-contractor for Stowe in a home unit development in Brisbane baptised the “Tribecca Apartments”. Stowe itself had sub-contracted to do work for the head contractor on the project.

3. The parties made an agreement in May 2002. While some terms of that agreement are in dispute and will be subject of further analysis, it is clear that there was an agreement that Sam carry out certain works on Stowe’s behalf: the design and installation of telephone cabling, a security intercom system and an MATV system. The agreed contract price for these works was $55,982.30. Between late October 2002 and late January 2003 Sam presented Stowe with five invoices for their work and the goods supplied. The amounts claimed in those invoices came to the contract sum which was not paid by Stowe.

4. On the first day of the trial, counsel for Stowe conceded liability in respect of work done installing the MATV system and telephones. Liability was contested only in respect of Sam’s claim to a sum of $25,268 relating to the installation of the security system.

5. On 24 January 2003, Stowe repudiated the contract with Sam on the grounds that it had failed to complete, or to provide satisfactory proof that it would complete, installation of the security intercom system in time for Stowe to meet its contractual obligations to the head contractor, Multiplex. It is common ground that Stowe then brought in another sub-contractor to install a different type of intercom system.

6. Sam therefore pursues its claim in respect of the intercom system and Stowe, by its cross-claim, seeks damages for the cost it incurred in bringing an alternative sub-contractor.

The issues for determination

7. There is a contest between the parties as to the precise terms of their agreement. In particular, the defendant asserts and the plaintiff denies that the terms of the head contract between Multiplex (the builder) and the developer were imported into the contract between Stowe and Sam.

8. This leads to the second and greater problem for resolution: was Stowe entitled, on the basis of non-performance by Sam, to bring in another contractor to complete or assist in completing the contract? The answer to that question depends on the terms expressly or impliedly agreed by the parties and on whether Sam took an unreasonable amount of time to supply and install the intercom system. If Stowe was justified, it follows that its cross-claim must succeed. If not, both its defence and cross-claim must be defeated.

9. If Stowe was entitled to enlist further help to finish the intercom system, there arises an issue of quantum of damages. The parties are in dispute as to the amount of work done or needed to be done at the time Stowe brought in another contractor during the Australia Day weekend of 2003 to finish the job.

10. Evidence was taken over four days and included a number of documentary exhibits. I have taken all the evidence into account but propose, in the interests of economy, only to refer to what I regard as the salient features of the evidence.

What did the parties agree?

11. The plaintiff’s case is that in February 2002, it was asked by Stowe for a quotation for the job. The parties had previously worked on another project. It is common ground that Sam provided a quotation in late February and that in May 2002 it received a purchase order from Stowe.

12. The purchase was sent by facsimile transmission. The cover page stated that the sender was Mr Gary Risk, the order number was 67570 and the fax consisted of two pages, including the cover page. The second page was headed “Stowe Australia Pty Ltd Purchase Order”. Under the sub-heading “Description of Material, Equipment or Service” the relevant parts of the order read:

Design, supply, installation, testing and commissioning the complete telephone, security/intercom access system and MATV system in accordance with EMF Griffiths Specification… All works as per construction programme varied from time to time to suit construction. All other commercial conditions back to back with Multiplex construction contract for Tribecca Apartments Spring Hill.

13. One of the factual disputes in the matter was whether or not Stowe ever provided a copy of the back page of the purchase order, on which its standard terms were set out, to Mr Jeff Bollingmore at Sam’s Nerang (Queensland) office, the construction schedule or the Multiplex contract to which reference was made in the purchase order.

14. Ms Heidi Schmidt, a director of Sam, stated in her evidence that she had cleared Mr Bollingmore’s desk and files after his departure and had found none of the relevant records Stowe claimed to have handed over to Mr Bollingmore.

15. For Stowe, both Messrs Gary Risk and Mr Craig McKenzie gave evidence that Mr Bollingmore had attended a meeting in Brisbane a couple of days after Mr Risk had sent him the purchase order and that, at the meeting on 23 May, they had given relevant documents. Mr Risk’s evidence was that the original purchase order, including the standard terms, the Multiplex contract and a roll of drawings had been handed to Mr Bollingmore. Mr McKenzie’s evidence was that at the meeting he had handed Mr Bollingmore the documents listed by Mr Risk and added that he had given Mr Bollingmore a copy of the specifications.

16. Mr Bollingmoore was somewhat vague on this question. He changed jobs shortly after the Tribecca project concluded and had had no access to Sam’s business records until this trial. In his evidence in chief, his best recollection was that the documents had not been provided but he was frankly hesitant about making any firm assertions. In cross-examination, however, he was reminded that in 2004 he had stated that he had received copies of the relevant documents from Stowe. He agreed that he had been truthful in stating in 2004 that he had received the original purchase order, the specifications, drawings and a copy of the Multiplex contract.

17. This was a major project for both Stowe and Sam. As Sam’s project manager in Queensland, Mr Bollingmore, who appeared to be an honest witness with a strong sense of professionalism, almost certainly would have wanted to understand with some precision the scope of the work Sam had to perform and the construction schedule, including the anticipated date for practical completion of the project. It seems highly likely in the circumstances that either he would have inquired about the construction schedule or that Stowe would have notified him of it. While I accept that he cannot now remember such information being passed to him that is more likely attributable to vagueness of memory brought on by passage of time than by a lack of information in 2002.

18. Nor does the negative evidence of Ms Schmidt add a great deal of illumination. We do not know how systematic Mr Bollingmore was in keeping records. Nevertheless, apart from the evidence itself which tends to support the defendant’s position, common sense suggests that for Sam to do its job properly Stowe would have needed to provide it with the relevant documentation. But what was the relevant documentation at that time?

19. The difficulty with the defendant’s argument on this point is that the contract between Stowe and Multiplex, although apparently drafted in February 2002, was not executed until 28 June 2002. This raises various questions among them being: did Stowe provide a copy of the anticipated contract to Mr Bollingmore? If so, what were the intentions of Sam and Stowe concerning the terms of that contract? If a copy was not provided to Sam in May 2002, was a copy given to it after 28 June and, if so, was the original contract between Sam and Stowe varied accordingly to make the two contracts conform with one another, that is, to become “back-to-back” contracts?

20. Although there is strong likelihood, given the passage of time, that the memories of all the relevant witnesses have significantly deteriorated and been, to some extent, reconstructed and despite the fact that the documentary records are incomplete or ambiguous in some respects, some facts are clear on the evidence.

21. First, the purchase order put Sam on notice that it was Stowe’s intention that any contract it formed with Sam would be “back-to-back” with its contract with Multiplex. Mr Bollingmore was familiar with term “back-to-back” contracts and their operation.

22. Second, the one-page purchase order faxed to Mr Bollingmore did not include with it copies of either Stowe’s standard conditions or the other relevant documentation. The appropriate inference to draw from this is that Stowe, while indicating that it found Sam’s offer acceptable, made its acceptance conditional upon Sam accepting that a contract between them would be “back-to-back” with its Multiplex contract and that Sam would be bound by Multiplex’s construction schedule. In short, it was making a counter-offer, an offer that was accepted by Sam on 23 May 2002 when Mr Bollingmore met Messrs Risk and McKenzie.

23. Third, at that stage the contract between Multiplex and Stowe was, it seems, still being negotiated. A first draft had been produced on 30 November 2001 and it had been revised on 14 March 2002. It appears not to have undergone further revision.

24. Fourth, Mr Bollingmore agreed in cross-examination that in 2004 he had stated, and had been able to remember at the time of that representation, that he had received a copy of the Multiplex contract at his meeting with Messrs Risk and McKenzie. If he was correct, and there seems no good reason to reject that evidence, he was almost certainly given a copy of the 14 March version of the unexecuted Stowe-Multiplex contract.

25. Fifth, both Stowe and Sam anticipated that Stowe would enter a contract with Multiplex in substantially the terms set out in the unexecuted copy of the contract, otherwise they would not have been forming their own contract anticipating incorporation of the Multiplex contract in theirs.

26. In my view, it follows that it was an implied term of the agreement between Stowe and Sam that, once executed, the agreement between Stowe and Multiplex would, insofar as it was relevant to their own agreement, be incorporated into it.

27. Of particular relevance in this case was part I of the Multiplex contract. It dealt with “Time, performance, delay and acceleration”. In clause I.2 the contract required Multiplex to prepare a construction program setting out the timetable for completion of sub-contracts. That clause also provided for the periodic adjustment of the program “to account for the actual progress of the work… or to maintain critical aspects of the current program.”

28. I note here that, while referred to in the contract, a copy of the construction program was not attached to it nor tendered in evidence. Some evidence was given by Mr Craig McKenzie for Stowe that the schedule was set out on a whiteboard in the office on the construction site. Although Mr Bollingmore’s evidence was that he had never seen the program either in documentary form or set out on a whiteboard, he did not contradict that evidence. His evidence suggested that a practice such as keeping the construction program on a whiteboard was common in the building industry. Certainly, to keep the program that way made it easy for sub-contractors to consult it and easy for Multiplex to adjust it.

29. Clause I.3 required the sub-contractor to “diligently perform and complete” the sub-contract works within the time allowed by a schedule to the contract or an adjusted time. It required the sub-contractor to comply with Multiplex’s program.

30. Clause I.4 gave Multiplex the right to instruct the sub-contractor to apply more resources if it fell behind schedule and, in default, at the sub-contractor’s expense to bring in more resources to accelerate the project.. Clauses I.5 and I.10, on the other hand, provided a mechanism for reasonable extensions of time for sub-contract works. Clause I.9 allowed Multiplex to claim its costs, expenses and damages against the sub-contractor if the sub-contractor caused Multiplex to run over the date for practical completion agreed in its head contract with the developer.

31. Extensions of time could be given by Multiplex to Stowe and Stowe to Sam in certain circumstances but written notice was required to be given by a sub-contractor seeking an extension. It is common ground that Sam never sought an extension of time for completion.

32. In summary, then, Sam was bound to perform its obligations within the time specified by Multiplex’s construction program.

Was Stowe entitled to take action against Sam?

33. Evidence was given by Mr McKenzie that the project suffered a number of delays. On 2 December 2002, however, following a meeting on site with Mr Bollingmore, Mr Risk faxed a message to him informing him that the project completion date was 23 December and requesting that “all necessary installation, fit off and commissioning” be completed by that date. It also informed Mr Bollingmore that Telstra would be installing the lead-in conduits and cables on about 7 December and that otherwise the project was ready for Sam to complete its works.

34. It is common ground that Sam had ordered telephone handsets and other equipment from Spain and that the shipment did not arrive in Brisbane until 28 January 2003.

35. According to Mr McKenzie, he spoke to a Sam employee, Mr Russell Monroe on 9 January 2003 concerning the handsets and was told that they were due in Australia on 13 January. No evidence was given for Sam by Mr Monroe. Mr McKenzie stated that he spoke to a director of Sam, Mr James Schmidt, on 15 January. He said that he had told Mr Schmidt that the completion date set by Multiplex had passed, that Stowe was under pressure from Multiplex and that Mr Schmidt had promised to make inquiries and advise him what was happening with the handsets. He said that had spoken again to Mr Schmidt on 17 January and been assured that the handsets would arrive the following weekend and be installed immediately. No evidence was given by Mr Schmidt.

36. On 20 January 2003, Multiplex exercised its rights under the contract to instruct Stowe to apply more resources to complete the works by 24 January 2004. Multiplex told Stowe that unless the default was remedied by that date it would exercise its rights under Clauses I.4 to bring other sub-contractors in or to employ the resources it needed to accelerate the completion of the work.

37. On 21 January 2003, Mr McKenzie sent Mr Bollingmore a fax telling him that an inspection of the project would be carried out by the “client” (not making it clear whether this was a reference to Multiplex or the developer but presumably Multiplex) and putting him on notice that Stowe was at risk of a claim for damages if the work was not ready by then. He also stated in the letter that “It is critical that your works are completed by 22/1/03 without fail. Your company will be held responsible for all costs if this inspection does not proceed because of your failure to complete the works.” The letter also drew Mr Bollingmore’s attention to various matters requiring completion or rectification. He instructed Mr Bollingmore to put on extra staff to complete the works by close of business on 22 January.

38. Mr McKenzie’s uncontradicted evidence was that he had spoken to Mr Schmidt on 22 January and advised him that if Sam could not supply the necessary equipment in time that Stowe would seek another source of supply.

39. On 23 January Mr McKenzie faxed a letter to Mr Schmidt stating that Multiplex now demanded all works to be complete by close of business on 27 January 2003. He advised Mr Schmidt that Stowe had obtained an alternative intercom/access system which was to be delivered to the site the following day. He noted that Mr Schmidt had told him at 1.15pm that day that the Spanish handsets would be available the following Monday. He then sought documentary corroboration of Mr Schmidt’s assurances including a copy of the consignment note and Customs clearance certification by the following morning, warning Mr Schmidt that if that written confirmation was not received that Stowe would engage another sub-contractor to mitigate its damages and would charge the cost of doing so to Sam’s account.

40. Mr Schmidt’s response was immediate: he complained that the site had not been clear in December 2002 and that it had therefore been impossible for Sam to complete its works by 23 December. He also argued that Stowe had never provided a construction schedule.

41. On 24 January, Mr McKenzie despatched a salvo of three faxes to Mr Schmidt. The first was a response to Mr Schmidt letter of the previous day which was received by Mr McKenzie on the morning of 24 January. Mr McKenzie denounced the reply as unsatisfactory and again demanded documentary evidence that the promised handsets would shortly arrive in Australia. He also made the point that “if you had progressively installed equipment… we would not be placed in this predicament.” Mr Schmidt’s faxed response was a query whether the site was open on 27 and 28 January. Mr McKenzie replied that the site would be opened for Sam, complained of Stowe’s “precarious” contractual position and Sam’s continued failure to provide evidence of the expected arrival of the handsets and emphasised that Sam would be required to complete its contractual obligations. He noted that the Sam staff on site had stated a willingness to co-operate with Stowe to complete the works urgently. His final fax was to the effect that, as he had not heard back from Mr Schmidt and had not received the documents he had sought, he assumed that Sam accepted the offer of assistance from Stowe.

42. On the same day Mr McKenzie notified Multiplex that he had engaged an alternative contractor to supply and commission the access control system.

43. Mr Schmidt wrote demanding payment relating to invoices served on Stowe previously and arguing that Stowe was unjustified in installing another system. He stated that Sam would install their handsets on Tuesday 28 January if access was provided.

44. In a second fax the same day Mr Schmidt claimed that the system had been “operational” on 24 January and complained both that Sam had been not been able to have access to the site on 25 January and that it had been notified of the date for completion “on 21/3/03” [sic]. (This, I assume, was meant to read “21/1/03”.) Mr McKenzie replied to it on 28 January asserting that “Your Queensland representatives have been advised of all revised completion dates and prior to Monday 20/01/03 have assured [us] they will complete by the nominated dates.” He also challenged the claim that system had been operational on Friday 24 January and noted tartly that not only did Sam have a person working on site on 25 January that he had worked alone all that day. “The fact that you sent ONE worker to site is consistent with the lack of urgency demonstrated throughout”, he remarked.

45. On 25 January, Multiplex faxed a letter to Stowe stating that practical completion was required by 31 January 2003.

46. Some evidence was presented by the plaintiff suggesting that, at the time Stowe made its demands on Sam and then brought in another contractor to complete the intercom system, the project as a whole was not complete. For example, a number of photographs taken on the Australia Day weekend in 2003 show scaffolding and other signs of incompleteness on the site. Evidence was also given by witnesses for the plaintiff that a computer which was an integral part of the security system was stolen because the room in which it was installed was not able to locked. In general terms, evidence was given that the building was not ready for occupation on the Australia Day weekend. (That is probably correct because Multiplex on 25 January had organised that practical completion be postponed until 31 January.)

47. If the only contractual obligation Sam had concerning a completion date was to finish its works within a reasonable time that evidence would have been relevant to the question. On the other hand, it seems to me that once a finding is made that Sam’s obligation was to meet a deadline of the practical completion date ultimately set by Multiplex such evidence becomes irrelevant for practical purposes. At the time that Stowe brought in reinforcements, Multiplex was apparently demanding practical completion by 24 January. Clearly Sam was unable to meet that deadline.

48. None of the witnesses for Sam admitted ever seeing a construction program for the project. It is apparent that neither Messrs Risk or McKenzie provided one to Mr Bollingmore at their May 2002 meeting. As best as can be divined from the available evidence, the program was set out on a whiteboard in Multiplex’s site office. It is therefore unremarkable that nothing of the program was found by Sam in its records.

49. Given, however, industry practice, given Mr Bollingmore’s experience in project management, given the nature and size of this project, it seems implausible that the Sam representatives on the site were entirely ignorant of the existence of a construction program (which, after all, had been referred to in the draft contract given to Mr Bollingmore by Stowe). It seems more likely than not that they were aware of its existence but that, given the signs of incompleteness around them and the fact that the handsets were still in transit from Spain, either did not have a sense of urgency about completing the job until it became very clear that Stowe was serious about bringing in extra people to complete the works or were helpless in the face of the demand to accelerate the work until the handsets arrived from Spain.

50. Ms Schmidt conceded in cross-examination that it was not until 12 November 2002 that Sam placed an order to Spain for the bulk of the required handsets. Her evidence was to the effect that it ordinarily took about six weeks for such an order to be delivered. Clearly, in this case it took much longer: approximately 11 weeks. Yet Sam must have been aware from the time it entered contract that the handsets would be required. No satisfactory explanation was proffered by any Sam witness for leaving the ordering so late in the year and late in the project. It must, nevertheless, have been self-evident to Mr Bollingmore and the Sam people in Sydney that, if the installation of handsets was required to be done as one of the last jobs before the project reached practical completion, any significant delay in the delivery of the handsets risked causing the completion of the project as a whole to be delayed. Sam was experienced in such projects. Its representatives knew that the handsets could not be installed until all the structural work had been done and the painting finished. By deferring the order until November, Sam was cutting its margin for error very thin. It was probably bad management on Mr Bollingmore’s part that he did not request his Sydney office until about October 2002 to send the order but the Sydney office could perhaps have done more to keep in touch with Mr Bollingmore on the subject.

51. In my view, it is more likely than not that the real cause of Sam’s delay in completing its works was not a lack of information about the completion date, but a lack of ability to complete its contractual obligations: it did not have the handsets to do so. Once Multiplex had asserted its rights to enforce a completion date and Stowe had been forced to follow suit, so too was Sam obliged to meet the deadline. It follows that, once it had been demonstrated to Stowe that Sam would not or could not comply with its demand to complete by 24 January, Stowe was entitled to rely on the “back-to-back” provisions of its contract with Sam. When Mr Schmidt was been unable to provide assurances concerning the timely arrival of the handsets from Spain, the contract warranted Stowe bringing in reinforcements to complete the works. It is, in my view, therefore due its costs incurred in doing so. The cross-claim is successful on the question of liability.

52. That brings us to the issue of quantum.

Quantum

53. Stowe’s calculation of the quantum of its cross-claim was a rather rough-and-ready exercise. In the course of his evidence, Mr McKenzie produced a handwritten document setting out what he said were the correct figures. Ex 14. On his evidence, Stowe conceded that that it owed Sam $24,173 in respect of the MATV system and the telephone cabling.

54. Sam claimed a sum of $25,268 for the intercom portion of its contract price. That price included, on Mr McKenzie’s calculations, $16,600 for materials that were not ultimately installed. The cost to Stowe of bringing in the alternative contractor, HSI, was $25,961. The additional cost to Stowe for the intercom system was, therefore, $693. Stowe also claimed a sum of $15,388 for the liquidated damages charged against it by Multiplex for the late completion of the work. The cross-claim was therefore to the sum of $16,081.

55. Stowe sought to tender this evidence for all purposes. At the time the trial commenced that evidence had not been served upon Sam. Objection was taken to its admission on the basis that it was served late and that Sam was severely prejudiced as it was not in a position to test the claim concerning Multiplex’s claim for liquidated damages. Rather than hold up the trial, which had already run four days, the parties agreed that the question of liability could be determined first and that, if necessary, the issue of the quantum of the cross-claim could be determined at a later stage.

56. Apart from the evidence already referred to, I will set out here what I regard as the relevant evidence adduced so far in the matter on the issue.

57. Evidence was given for Sam by Mr Doug Fricker that he had commenced the installation of the cabling for the intercom system in January 2003 and completed the cabling by late January. He then had to await the arrival of the Spanish handsets. Mr Fricker’s version of the events over the Australia Day weekend in 2003 was that he had attended the site on 24 January and been told to leave because he had been replaced by HSI. Nevertheless, he went back to the site on 25 and 26 January 2003, assisting HSI to integrate their intercom system with the cabling he had installed. He said that the alternative system used the wiring he had put in.

58. Mr David Crew, who gave evidence for Stowe, in his statement asserted, among other things, that a new intercom system had had to be purchased and installed by HSI as the units Sam had installed were not suitable. He conceded in cross-examination that this statement was wrong and went further to admit that the majority of the wiring used by HSI to complete the installation of the hand-sets had been installed by Sam. He said that most of the wiring installed by HSI had been to join the access control and intercom systems together: he called this “the backbone cabling”. He also stated in his evidence that HISI had not finished their work until 30 January. It is common ground that Sam had imported its handsets from Spain by that time and, on the plaintiff’s evidence, could have finished installing them by about 28 January.

59. Mr Crew also conceded in cross-examination that some of the work done by HSI was to do with rectifying problems caused by the installation of lifts in the building and some other rectification also seems not to be related to work done by, or left undone by, Sam.

60. While the initial effect of Mr Crew’s evidence was that Sam had a done a very sub-standard job, by the time the cross-examination had concluded he left a considerable doubt about the weight to be attached to his evidence.

61. In cross-examination, Mr McKenzie conceded that Stowe had been still working on the site in late February fixing defects. He conceded, too, that Stowe had sought an extension of time from Multiplex in late December because at that time it had been late in the majority of its works. Stowe also sought an extension of time – 19 days -- relating to the Christmas period. It also successfully disputed claims –“back charges” -- made against it by Multiplex.

62. Stowe asserts that Sam invoiced it for $16,600 worth of materials never supplied. In its case in reply, the plaintiff called Ms Schmidt to rebut this proposition. Her evidence was that the sum referred to in the Sam invoice included not only the handsets never installed but other items which were such as the intercom, monitor and CCTV cameras. Her evidence was to the effect that the worth of the goods not ultimately supplied to Stowe was in the order of $2500 rather than the much higher figure claimed by Stowe.

63. Stowe asserts that the telephone system put in by Sam (or those parts of it that were installed by Sam) were defective. Mr McKenzie’s evidence is to that effect and it was corroborated to some degree by Mr Crew. On the other hand, however, Sam tendered its own test results which purport to show that the system as installed by Sam was found to be in working order. Given that HSI was also involved in wiring up the intercom system it is difficult to establish the facts now, especially as a significant time has passed, the building is, I assume, occupied and functioning and the cost of investigation would be likely to be disproportionate to the sums involved in these claims.

64. The evidence in relation to quantum therefore remains in some disarray.

Conclusions

65. The end result is that there must be a verdict for the plaintiff in relation to its claim. No defence of set-off was pleaded and the defendant admitted liability in respect in respect of approximately half the plaintiff’s claim.

66. In addition, there is evidence that the plaintiff installed a large part of the intercom system and assisted HSI to complete it with an alternative handset. It must be entitled to claim for that work.

67. On the other hand, I have found that Stowe was entitled under its contract to bring in reinforcements to meet the demand from Multiplex for practical completion. Accordingly, it must have some entitlement to compensation under the contract for that and, therefore, must succeed to some degree on its cross-claim. It is regrettable that Stowe’s evidence concerning quantum was prepared late and, frankly, unsatisfactorily.

68. It may have been overly generous of me when I indicated on the last day of the trial that I was not prepared to disallow the late evidence Stowe sought to adduce altogether. I said that, given that the claim for liquidated damages said to have been imposed by Multiplex upon Stowe (and which Stowe seeks to pass on to Sam) constituted a large part of the cross-claim, I was reluctant to deny Stowe the chance to prove its case but that there may be a costs penalty attached to doing so.

69. Given the costs already incurred by the parties in getting to this point, and the relatively small sums involved, I would urge that they give the closest consideration to finding a suitable compromise on the issue of quantum rather than spending more court time on it.

Hugh Dillon

Magistrate