SC Projects Australia Pty Ltd v Field Deployment Solutions Pty Ltd [No 2]
[2016] WASC 51
•19 FEBRUARY 2016
SC PROJECTS AUSTRALIA PTY LTD -v- FIELD DEPLOYMENT SOLUTIONS PTY LTD [No 2] [2016] WASC 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 51 | |
| Case No: | CIV:1539/2015 | 29 JANUARY 2016 | |
| Coram: | MITCHELL J | 19/02/16 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Questions answered | ||
| B | |||
| PDF Version |
| Parties: | SC PROJECTS AUSTRALIA PTY LTD SEA TRUCKS AUSTRALIA PTY LTD FIELD DEPLOYMENT SOLUTIONS PTY LTD |
Catchwords: | Contract Trial of preliminary issues Proper construction Turns on own facts |
Legislation: | Construction Contracts Act 2004 (WA), s 19 |
Case References: | Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22 Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 Westgem Investments Pty Ltd v Saracen Project Management Pty Ltd [No 2] [2012] WASC 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
SEA TRUCKS AUSTRALIA PTY LTD
Second Plaintiff
AND
FIELD DEPLOYMENT SOLUTIONS PTY LTD
Defendant
Catchwords:
Contract - Trial of preliminary issues - Proper construction - Turns on own facts
Legislation:
Construction Contracts Act 2004 (WA), s 19
Result:
Questions answered
Category: B
Representation:
Counsel:
First Plaintiff : Mr S K Dharmananda SC & Mr T J Porter
Second Plaintiff : Mr S K Dharmananda SC & Mr T J Porter
Defendant : Mr P G Clifford & Mr A P Rumsley
Solicitors:
First Plaintiff : Jones Day
Second Plaintiff : Jones Day
Defendant : Alan Rumsley
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22
Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237
Westgem Investments Pty Ltd v Saracen Project Management Pty Ltd [No 2] [2012] WASC 358
- MITCHELL J:
Preliminary issues
1 On 2 December 2013, the plaintiffs and defendant entered into an agreement in relation to the supply and operation of Hagglund BV206 vehicles (Agreement).1 It provided for the defendant to supply Hagglund BV206 vehicles for use in the rehabilitation of a right of way on which a gas pipeline had been constructed, as well as labour for the operation and maintenance of the vehicles and ancillary services.
2 The plaintiffs terminated the Agreement on 12 September 2014. The parties have since been in dispute about a number of matters arising under the Agreement. I have previously dealt with a number of matters concerning disputes between the parties arising under the Construction Contracts Act 2004 (WA). The current proceedings concern contractual and other claims which the parties have made against each other.
3 The parties identified a number of questions concerning the proper construction of the Agreement. I was satisfied that it was appropriate to determine those questions as preliminary issues in the action, and on 9 October 2015, made orders for specified questions to be tried separately.
4 The only evidence tendered by the parties is a trial bundle of documents (TB), which is exhibit 1 in the trial of preliminary issues. The TB comprises the Agreement, a number of Site Instructions and Site Instruction Changes made under the Agreement and other correspondence between the parties. Although the plaintiffs object to the inclusion of some of the documents on relevance grounds, I accept that all the documents are relevant, even if some are only marginally so as providing background to the dispute. I therefore overrule the objections as to relevance.
Background
Purpose of the Agreement
5 The Gorgon Project is a natural gas project comprising the development of gas fields located off the northwest coast of Western Australia. Part of the project involves the development of subsea and onshore gas pipelines to transport gas from Barrow Island to the Dampier to Bunbury natural gas pipeline on the mainland of Western Australia for the purposes of domestic use (Domgas pipeline).2 At least the second plaintiff was engaged to install the Domgas pipeline.3 The pipeline has been installed in a 'right of way', part of which is located in the inter-tidal zone in an area characterised by extreme temperature ranges, high salinity and ground conditions that vary from sand dunes to inundated mud flats.4 As part of the installation, at least the second plaintiff was required to reinstate land cleared for the construction of the Domgas pipeline.5 On 2 December 2013, the parties entered into the Agreement for services in respect of the supply of Hagglund BV206 vehicles for the purposes of hauling fill to be used in the reinstatement of the land.6
General structure of the Agreement
6 The Agreement comprises four Sections, numbered I - IV. Section III includes 5 Schedules. Of particular significance in the present case are Section I (Form of Agreement) and Section III (General Conditions), including Schedule 2 (Scope of Services Schedule) and Schedule 3 (Compensation Schedule).
General Conditions
7 Clause 1.1 of the General Conditions indicates that the purpose of the Agreement is to set out the terms and conditions on which the plaintiffs are purchasing 'the Services' from the defendant. 'Services' is relevantly defined in cl 37.1(v) of the General Conditions to mean:
the Services described in the Scope of Services Schedule and in each Site Instruction, including provision of labour, supervision, any specified materials, supplies, and equipment, and other services incidental to each Site Instruction.
8 Clause 2.1 of the General Conditions provides that, if the plaintiffs want to purchase the Services, they shall give the defendant a written Site Instruction describing matters including the Services required and 'when the Services shall be performed'. Clause 2.5 provides for the defendant to sign the Site Instruction, unless it cannot comply with the instruction.
9 Clause 4.1 of the General Conditions provides that, when a Site Instruction is signed by the defendant and plaintiffs, it is a legal contract. Clause 4.2 provides that each Site Instruction is a separate legal contract from all other Site Instructions and from the Agreement. Clause 4.2 also provides that every Site Instruction is governed by the provisions of the Agreement, and that a Site Instruction cannot change the terms of the Agreement or any other Site Instruction. Clause 4.3 provides that the Agreement takes precedence over any conflicting provisions in a Site Instruction.
10 Clause 6.1 of the General Conditions provides:
This Agreement and the usage of Site Instructions by [the plaintiffs] are non-exclusive, meaning that [the plaintiffs] can engage other entities to provide Services without any liability to [the defendant]. Notwithstanding the above, the supply of specialist equipment (the 'Hagglund BV206') by [the defendant] under this Agreement is exclusive for the duration of this Subcontract, so as long the Services are not terminated pursuant to Article 19 of this Section III.
11 Under cl 6.3, the plaintiffs do not promise to give any Site Instructions to the defendant, promise anything about how often Site Instructions could be given or the value of the Site Instructions which may be issued.
12 Clauses 7.1 and 7.2 of the General Conditions require the defendant to start providing the Services promptly after signing a Site Instruction, and to do so strictly in accordance with the requirements of the Site Instruction. Clause 7.5 relevantly provides that the plaintiffs shall not pay for any Services that are not included in a signed Site Instruction, are performed after the Completion Date of the Site Instruction or exceed the Site Instruction Price.
13 Clause 11.1 of the General Conditions provides that the plaintiffs can change a Site Instruction at any time, for any reason or no reason, including by changing when the Services will be provided. Clause 11.2 requires the plaintiffs to issue a Site Instruction Change documenting such changes. Clause 11.3 provides that the plaintiffs do not need the defendant's consent to change a Site Instruction, and the defendant agrees to be bound by all Site Instruction Changes valid under the Agreement.
14 Clause 14.1 of the General Conditions provides for the defendant to invoice the plaintiffs for, and for the plaintiffs to pay the defendant, the Site Instruction Price for Services performed under each Site Instruction within 30 days of receipt of an undisputed invoice. Clause 37.1(v) of the General Conditions defines 'Site Instruction Price' to mean:
The price [the plaintiffs] will pay for the Services to be provided under a Site Instruction, as specified in the Site Instruction and modified by Site Instruction Changes.
15 Clause 14.1 of the General Conditions further provides that the Site Instruction Price will be stated in the Site Instruction and must be calculated in accordance with the rates set out in the Compensation Schedule. Clauses 14.4 and 14.5 deal with disputed invoices, in terms to which I shall come in more detail later in these reasons. Clause 14.6 provides for the issue of a final invoice for the unpaid balance of the Agreement fee or price after completion or termination of the Services.
16 Clause 19 of the General Conditions provides for the plaintiffs to issue notice of termination of Services.
Services which may be provided under the Agreement
17 The copy of the Agreement tendered includes a 'Scope of Work for Hagglund Supply and Operation'.7 Although not included at the place assigned for Schedule 2 to Section III, it is clear that this document is the Scope of Services Schedule referred to in the Agreement. If it were not, the Agreement would not define the Services to be provided under the Agreement.
18 Clause 3 of the Scope of Services Schedule contains a general description of the Services as including 'supply of Hagglund BV206 vehicles, equipment and Operations support'. This is most relevantly stated to include 'procurement and supply of all Hagglund BV 206 equipment', 'labour and supervision', 'adequate spare parts' and 'storage prior to mobilisation (if required)'.
19 Clause 4 of the Scope of Services Schedule deals with the scope of the defendant's supply obligations. Clause 4.1 most relevantly defines the scope of supply to include:
• Management, Planning, Scheduling and Execution for the deployment of Hagglund BV 206 vehicles, including full refurbishment and diesel engine conversions, fit out of the twin tipper units including trailer, and modifications as required ready for mobilisation for operations at Site approved by [the plaintiffs] for the Services;
…
• Mobilisation of all equipment to [the plaintiffs'] nominated ITZ work site
…
• Operation and performance of all equipment as directed by [the plaintiffs] on site to assist with the completion of the Services;
• Upkeep maintenance for operation of the Hagglund BV 206 in good operating order at all times.
20 Clause 4.2 identifies the quantities of Hagglund BV206 vehicles to be prepared and supplied. There was to be an initial supply of three BV206 tipper unit assemblies, with two side tipping trailer units, and one BV206 personnel carrier unit. The clause also refers to:
Preparation of an additional eight (8) off BV206 tipper unit assemblies, complete with two (2) off side tipping trailer units per vehicle. The required delivery date of these additional eight (8) units shall be at the discretion of the [plaintiffs] as detailed within Appendix 4 - Key Dates[.]
21 Appendix 4 identifies 'target site mobilisation dates' for the first four BV206 units on 15 February 2014, an additional five units by 15 April 2014 and an additional three units by 15 June 2014.
22 Clause 4.2 also requires the defendant to design, fabricate and supply six interchangeable push blades mountable to the front of each BV206 tipper unit vehicle. It also requires that all BV206 vehicles be in a fully operational state prior to delivery to the plaintiffs' nominated mobilisation point.
23 Clause 4.3 of the Scope of Services Schedule provides for the defendant, under the plaintiffs' direction, to be:
responsible for the haulage of fill material and various erosion control materials from a stockpile location to the designated work locations along the [right of way] where reinstatement works shall be taking place.
- This included the supply, maintenance, servicing and operation of the Hagglund vehicles for the haulage of fill and erosion control materials. It also included the supply of all personnel to operate and maintain the vehicles and the supply of all necessary spare parts.
24 Clause 4.5 requires the defendant to supply sufficient suitably qualified personnel 'to complete the supply of Services'. It provides for the defendant to propose adequate numbers, which 'in general' should include one supervisor, one driver for each vehicle, one mechanic for every eight vehicles operating at site (and a minimum of one) and one fitter for every four vehicles operating at site.
25 Under cl 4.6 of the Scope of Services Schedule, the defendant was responsible for the ongoing management of spare parts and the replenishment of parts used with the plaintiffs' approval.
Remuneration
26 Clause 3(i) of the Compensation Schedule provides for a project initiation payment of $425,000. Clause 3(ii) of the Compensation Schedule provides for a payment of $328,500 for each BV206 ordered. Although not expressly referred to in the Compensation Schedule, Appendix 2 to the schedule includes a 'Milestone Payment Schedule' which provides for each BV206 ordered:
$95,000 plus GST within 14 days of Agreement signing
$118,500 plus GST at time of FOB in the UK
$115,000 plus GST at time of being ready to ship site, Belmont
*Note: Preparation of BV206's in the UK cannot commence until payment is received.
- The total of these sums is $328,500.
27 Clause 4(i) and cl 4(ii) of the Compensation Schedule specify the hire costs for 'Tipper Units' and 'Personnel Carriers', being $500 each per day.
28 Clause 4 of the Compensation Schedule also provides daily rates for personnel, but states that:
Actual reimbursement for personnel shall be based on the final negotiated EBA/CBA rates, which shall be
29 Clause 5 of the Compensation Schedule relevantly provides that costs of all spare parts shall be paid 'at demonstrable cost' by the plaintiffs. The defendant was required to provide a recommended inventory list to the plaintiffs, which would be used as a basis to replenish inventory. The defendant was required to buy back unused inventory at cost price at the conclusion of the hire contract.
30 Clause 6 of the Compensation Schedule provides as follows:
6. Hire Periods
Equipment
(i) There is no minimum hire period and there are no hire cancellation penalties. The maximum term of this contract is 15 months, renewable subject to mutual agreement.
(ii) Should the [plaintiffs] elect to terminate during the period of any BV206 shipment, [the defendant] will act in good faith to attempt to mitigate [the plaintiffs'] losses.
(iii) There is no penalty for delay to mobilisation to site by either party.
(iv) Upon termination by the [plaintiffs], all amounts previously paid to [the defendant] at the time of notice of termination shall be retained by [the defendant] and non-refundable under any circumstances. Furthermore any outstanding invoices along with any outstanding amounts yet to be invoiced) [sic] shall be paid in accordance with regular payment terms and are non-refundable under any circumstances.
Labour
(i) Subject to compliance with any termination provisions of any industrial award or union requirement, the hire of labour may be cancelled by the [plaintiffs] at any time with 7 days['] notice.
32 Clause 8(i) of the Compensation Schedule states:
The terms in this quote are offered on a minimum order of 12 x BV206's.
33 Clause 8(v) provides:
The daily hire rate applies regardless of the status of the machine, be it in operation, stand by or shut down except for situations described in item (vi) below.
- Clause 8(vi) provides for the hire charge to be suspended in the event of catastrophic diesel engine failure until the time the unit is repaired and available for return to service.
Site Instruction No 1 and delivery of Units 1 - 4
34 On 3 December 2013, the plaintiffs issued to the defendant Site Instruction 1 in which they relevantly instructed the defendant to initiate the supply of one BV206 personnel carrier, three BV206 soft top tipper units (collectively 'Units 1 - 4') and specified spare parts.8 It also said:9
This Site Instruction also covers the supply of all other items described in Section 4 'Hire Costs' to support the four off (4) units described above. The above items shall be ready for mobilization to site and on-hire in accordance with the dates defined in Schedule 4 to Section III 'General Conditions of Contract Key Dates'. The actual mobilization to site and on-hire date will be confirmed by [the plaintiffs] in writing to [the defendant].
35 Units 1 - 4 were delivered to site between 9 and 28 March 2014.10
Site instruction No 2
36 On 31 December 2013, the plaintiffs issued to the defendant Site Instruction 2, in which they instructed the defendant to reserve additional Hagglund Units until 31 January 2014 and agreed to pay a fee of £60,000 as a holding deposit.11
Site Instruction No 3
37 On 2 January 2014, the plaintiffs issued Site Instruction 3 to the defendant. In that Site Instruction the plaintiffs instructed the defendant to supply four BV206 soft top tipper units (Units 5 - 8) to be delivered by sea freight to meet readiness for delivery to site by 15 April 2014. The plaintiffs also instructed the defendant to supply four BV206 soft top tipper units (Units 9 - 12) to be delivered by sea freight to meet readiness for delivery to site by 15 May 2014.12 Site Instruction 3 also said:13
The actual mobilization to site and on-hire date will be confirmed by [the plaintiffs] in writing to [the defendant].
38 Units 5 - 8 were delivered to the defendant's premises by sea freight on or around early April 2014 and were not delivered to the plaintiffs' site.14
Operation of Hagglund units on site
39 The only Hagglund tipper units that performed hauling work on the right of way were the three units delivered in March 2014 (BVS001, BVS002 and BVS003) together with the personnel carrier (BVH001). Those units performed work on various dates up to about 12 April 2014.15
40 On or around 12 April 2014, one of the operating Hagglund BV206 tipper units (BVS001) caught fire while in operation and was damaged.16 Immediately after the fire, the plaintiffs caused all use of the Hagglund vehicles to cease on site and directed the defendant to demobilise all personnel from site.17
Change to Site Instruction 3
41 On 16 May 2014 the plaintiffs issued to the defendant a Site Instruction Change to Site Instruction 3.18 The Site Instruction Change began by stating:
[The defendant] is instructed to not progress fabrication/assembly works to [Units 9 - 12] instructed under [Site Instruction 3] once the Units have been cleared out of quarantine at Australian port. [The defendant] is to only take custody of the Units and arrange for secure and adequate storage to ensure [the defendant] can meet its contractual obligations and until further instructions are issued by [the plaintiffs].
42 The Site Instruction Change concluded:
A separate Site Instruction Change shall be issued by [the plaintiffs] in due course to confirm the delivery date to the Site and requirements of these Units - subsequent to satisfactory evidence that the Units are ready for use in accordance with the Subcontract. The final milestone payment for units 9 to 12 (i.e. $115,000 per Unit payable prior to each unit leaving [the defendant's] premises in Belmont) shall be made once [the plaintiffs are] satisfied that these units have achieved 'FOB Belmont' status, i.e. all Units are ready for operations in accordance with the Subcontract.
Changes to Site Instruction 1
43 On 30 May 2014, the plaintiffs issued three Site Instruction Change notices to Site Instruction 1.
44 The first was said to be issued further to the parties' agreement to mobilise Units 1 - 4 to site on 9 March 2014. It provides for equipment hire costs to be paid in accordance with relevant items of the Compensation Schedule. It also provides for the Completion Date to be 30 June 2014.19
45 The second Site Instruction Change issued on 30 May 2014 related to spare parts.20
46 The third Site Instruction Change was said to be issued further to the parties' agreement to mobilise one supervisor, four drivers and two fitters to site. It noted that the hire of personnel ceased as of 27 April 2014, which was identified as the 'completion date'. It provided for equipment hire costs to be paid in accordance with relevant items of the Compensation Schedule.21
47 On 27 August 2014, a further Site Instruction Change to Site Instruction 1 required the defendant to demobilise its equipment from site by no later than 10 September 2014.22
Advice as to readiness of Units 5 - 12
48 On 24 April 2014, the defendant sent an email to the plaintiffs indicating that Unit 6 was 'FOB Belmont'23. On 16 May 2014 the defendant sent a letter to the plaintiffs indicating that Unit 7 was 'FOB Belmont'.24 On 26 May 2014 the defendant sent an email to the plaintiffs indicating that Unit 5 was 'FOB Belmont'.25 On 24 July 2014, the defendant sent a letter to the plaintiffs indicating that the defendant 'is now pleased to confirm clearance from quarantine and custody of units 9 - 12'.26
Final Invoice and Termination of Agreement
49 On 9 September 2014, the defendant submitted its final invoice under the Agreement.27 The total invoice value was stated to be $2,112,425.87. The matters charged were:
1. outstanding invoices relating to the hire cost of vehicles from the time when the vehicles were on-site or after the defendant had given notice of the vehicles being 'FOB Belmont';
2. outstanding invoices for 'Staff Fee[s]', being 25% of the 'minimum staff levels' for vehicles on the site or for which the defendant has given notice of 'FOB Belmont' at rates set out in the relevant enterprise bargaining agreement;
3. interest on unpaid invoices;
4. the 'final milestone payment' of $115,500 in respect of seven Hagglund tipper units; and
5. the costs to the defendant of the Site Instruction Change issued on 27 August 2014.
50 On 12 September 2014, the plaintiffs terminated the Agreement.28
General principles of construction of commercial contracts
51 The relevant principles governing the proper construction of a commercial contract are well established and were not in contention in this case. I have recently adopted summaries of the principles,29 and that summary need not be repeated here. It is, however, worthwhile emphasising the need to consider the whole of the contractual instrument and, if possible, to construe the words in different clauses of the contract so as to render them all harmonious with each other.30
Preliminary question (a): Need for a Site Instruction
52 The first preliminary question which requires my determination is as follows:
Does the Agreement require [the plaintiffs] to hire a minimum number of Hagglunds, or a minimum level of staff, or is it an agreement pursuant to which [the plaintiffs] offer to purchase services by issuing a Site Instruction?
53 The plaintiffs contend that the Agreement is one in which they offer to purchase services by issuing a Site Instruction. The defendant contends that the Agreement provides for the hire of a minimum number of Hagglund BV206 vehicles and a minimum number of staff.
How the issue arises
54 This issue arises under the defendant's counterclaim for payment of outstanding invoices for vehicle hire and staff fees.
55 Paragraph 165 of the counterclaim pleads that the minimum number of Hagglund BV206 vehicles to be hired by the plaintiffs was 12. The defendant contends that the Agreement requires the plaintiffs to pay daily hire fees from the dates on which notice was given that the vehicles were ready to mobilise to site or, in the case of Units 9 - 12, were cleared from quarantine and were available for mobilisation from the defendant's premises at Belmont.31 The pleading then refers to the issue and non-payment of invoices for those hire fees.32
56 Paragraph 184 of the counterclaim pleads that the plaintiffs contracted with the defendant to provide a minimum level of staff for the wet hire of the Hagglund vehicles. The defendant says that the plaintiffs agreed to pay a '25% mark-up', and refers to the issue of invoices for that mark-up at a time when no staff were actually deployed on site. The defendant claims the amount of the unpaid invoices.
57 These claims for hire and staff fees are premised on the Agreement providing for minimum numbers of vehicles and staff.
Resolution of the issue
58 In my view the provisions of the General Conditions to which I have referred above make it clear that there is no minimum number of vehicles or minimum staff levels. The hire of vehicles and staff requires a signed Site Instruction in which those services are described.
59 The definition of 'Services' which are to be acquired under the Agreement operates in part by reference to what is described in a Site Instruction. Clauses 2.1, 2.5 and 4.1 - 4.3 identify the requirements of a Site Instruction, which operates as a separate legal contract. Clauses 6.1 and 6.3 make it clear that the plaintiffs are not obliged to issue any Site Instruction at all, and that the plaintiffs may obtain services other than the supply of Hagglund vehicles from suppliers other than the defendant. Clause 7.5 provides that the plaintiffs are only required to pay for services included in a Site Instruction.
60 The defendant's argument to the contrary depends on the terms of the Scope of Services Schedule. It points out that cl 4.2 of that Schedule refers to the preparation and supply of 12 Hagglund units, without the obligation being qualified by reference to the existence of a Site Instruction. The defendant also refers to cl 4.7.1 of the Scope of Services Schedule which provides:
In addition to the twelve (12) off units specified as part of the base case supply in Section 4.2, [the defendant] shall provide additional units as requested by [the plaintiffs], subject to availability from principal source of supply.
61 The Scope of Services Schedule, considered in isolation, can be read as suggesting a minimum number of vehicles to be hired. However, the Schedule is not to be read in isolation. It is necessary to consider the whole of the contractual instrument in order to arrive at its proper construction. It is also necessary to have regard to the purpose of the Scope of Services Schedule. That purpose is indicated by the definition of 'Services' by reference to services described in the schedule 'and in each Site Instruction'. The purpose of the Scope of Services Schedule is to identify the services which may be described in a Site Instruction. However, description of the service in the Scope of Services Schedule is not sufficient. When the Agreement is considered as a whole it is clear that a Site Instruction is required, and there is no obligation to issue a Site Instruction at all or a Site Instruction for work of any particular value.
62 The defendant also points to cl 8(i) of the Compensation Schedule, which described a quote being offered on a minimum order of 12 Hagglund BV206 vehicles. This clause merely refers to the basis on which a quote was offered, and does not override the detailed provisions of the General Conditions which make the requirement for a Site Instruction plain.
63 Further, even if the Scope of Services Schedule and the Compensation Schedule indicated a minimum number of vehicles to be hired, the provision of the General Conditions requiring a Site Instruction would prevail. The Form of Agreement provides that:
The Sections [of the Agreement] shall be read as one document the contents of which, in the event of ambiguity or contradiction between Sections, shall be given precedence in the order listed with the exception that Schedule 1 - Agreement Details shall take precedence over the General Conditions of Agreement.
64 The General Conditions appear in the list before the Scope of Services Schedule and the Compensation Schedule. Those schedules, and the Agreement Details, are identified as schedules to Section III rather than Sections. The provision for the Agreement Details to take precedence over the General Conditions, as an exception to the general rule of precedence, indicates the general rule that the General Conditions take precedence over the Schedules to the General Conditions. This is confirmed by cl 33.1 of the General Conditions, which relevantly provides:
If any provision of this Agreement conflicts with the terms of any Schedule of [sic] Section, the terms of these General Conditions take precedence and govern.
65 The position in relation to the supply of personnel is even clearer. Clause 4.5 of the Scope of Services Schedule merely refers to 'sufficient' personnel which should be proposed by the defendant but which 'in general' should include certain staffing levels. This does not suggest a minimum hire of staff. The defendant refers to cl 4 of the Compensation Schedule, but that clause merely specifies the rates for different staff and does not provide for a minimum quantity. Further, cl 6.1 enables the plaintiffs to engage other entities to provide staff to operate the vehicles.
66 The defendant argued that cl 11 of the Special Conditions, which take precedence over the General Conditions, would prevent the plaintiffs from 'dealing' with the vehicles by engaging someone else to operate and maintain them. There is no merit in that submission. Clause 11 is concerned with the vehicles being sold or encumbered, and not the operation of the vehicles on-site.
67 For these reasons, the first preliminary question should be determined in the plaintiffs' favour.
Preliminary question (b): minimum levels
68 The second preliminary question arises only if the first is determined in favour of the defendant. It concerns the identification of the relevant minimum levels. Given the manner in which I have resolved the first issue, this second issue does not arise and is unnecessary to determine.
Preliminary question (c): Services purchased by the plaintiffs
69 The third preliminary question is:
If the answer to question 1 is that the agreement is one by which [the plaintiffs offer] to purchase services by issuing a Site Instruction, did [the plaintiffs] purchase, by a Site Instruction, any of the services that are the subject of paragraphs 178 and 186 of the Re-amended Counterclaim?
Invoiced services
70 This issue also concerns the defendant's counterclaim for unpaid invoices for vehicle hire costs and the '25% mark-up' of minimum staff levels. The invoices referred to in the specified paragraphs are annexed to the final invoice which is in evidence. In summary, those invoices charge for the following services:
1. the hire of BVH001, BVS002, BVS003 and BVS004 from 1 May 2014 to 12 September 2014;
2. the hire of Units 5 - 8 from dates in May 2014 (being 26 May 2014 for BVS004, 1 May 2014 for BVS005 and BVS006 and 16 May 2014 for BVS007) to 12 September 2014;
3. the hire of Units 9 - 12 from 24 July 2014 to 12 September 2014; and
4. the provision of labour (being the 25% mark-up of the alleged minimum levels) from 1 May 2014 to 12 September 2014.
71 Invoices issued in respect of Units 5 - 12 charged at a 'standby rate' of $500 per day.
Hire of Units 1 - 4
72 Units 1 - 4 were the subject of Site Instruction 1. The completion date for that hire was specified as 30 June 2014. Therefore the only services which are the subject of the pleaded invoices in relation to Units 1 - 4 that were also the subject of a Site Instruction were the hire of three Hagglund BV206 vehicles (excluding the vehicle damaged by fire) from 1 May 2014 to 30 June 2014. There was no Site Instruction which hired any of those vehicles after 30 June 2014.
Hire of Units 5 - 8
73 Site Instruction 3 ordered the supply of Units 5 - 8 'to meet readiness for Site Delivery' by 15 April 2014 with 'actual mobilisation to site and on-hire date' to be confirmed by the plaintiffs. The plaintiffs contend that Site Instruction 3 only ordered the supply of units to meet readiness for delivery and did not hire any of the vehicles. They contend that Site Instruction 3 did not create a hire contract in respect of the Hagglund vehicles.
74 While it creates a separate contract, Site Instruction 3 cannot be read in isolation from the Agreement. The separate contract which a Site Instruction creates is a contract with the terms contained in the Agreement. The Agreement and Site Instruction 3 must be construed together as a whole.
75 I accept that Site Instruction 3 did not provide for the mobilisation of Units 5 - 8 to the plaintiffs' site. It did expressly require Units 5 - 8 to be made ready for delivery to site by 15 April 2014. The question in dispute is what the Site Instruction required the defendant to do with the vehicles once they were ready for delivery to site if an instruction for mobilisation was not forthcoming. It would be an obviously uncommercial result from both parties' perspective if, having readied the vehicles and accrued an entitlement to receive the $328,000 up-front payment for each vehicle, the defendant was able to immediately dismantle the modifications to the vehicles and return them to the United Kingdom. Counsel for the plaintiffs did not contend that I should construe the Site Instruction and Agreement in that manner. To the contrary, in oral submissions senior counsel for the plaintiffs submitted that the units had to be kept ready subject to any further instructions.33
76 The Scope of Services Schedule does contemplate the defendant incurring an obligation to hold the Hagglund vehicles after they are made ready for shipment to the plaintiffs' site. Clause 3 of that schedule expressly refers to 'storage prior to mobilisation (if required)'. In my view, when read with the terms of the Agreement, Site Instruction 3 required the defendant to prepare Units 5 - 8 for mobilisation and, if required, to then store the vehicles until the plaintiffs issued a Site Instruction for mobilisation. The invoices charged for those units being on 'standby', which is in substance to be understood as storing the units prior to mobilisation. That service was purchased by the plaintiffs in Site Instruction 3.
77 There was no further instruction to cease storage of the Hagglund units before the Agreement was terminated on 12 September 2014. The storage of the units until that time was therefore required by Site Instruction 3.
78 I am not required to determine at this stage what amount, if any, is payable by the plaintiffs to the defendant in respect of storage of Units 5 - 8 prior to mobilisation. There appears to me at this preliminary stage to be a strong argument that, if Units 5 - 8 were indeed ready for mobilisation, the daily hire rate of $500 would be payable in respect of the vehicles on standby, under cl 4(i) and 8(v) of the Compensation Schedule. While no Site Instruction Price was specified for the storage of Units 5 - 8 prior to mobilisation, cl 14.1 of the General Conditions required the Site Instruction to specify a price in accordance with the Compensation Schedule. However, the preliminary question is confined to identifying the services which were purchased by a Site Instruction, and does not extend to determining the price to be paid for those services.
79 I am also not required to determine at this stage whether Units 5 - 8 were in fact ready to ship to site on the dates indicated in the defendant's notices, or were in fact stored by the defendant. Nothing in these reasons should be taken to determine those questions. The question I am currently required to determine is whether the services described in the pleaded invoices were purchased by a Site Instruction. I am not at this stage required to determine whether the services specified in the pleaded invoices were in fact provided.
Hire of Units 9 - 12
80 Subject to one qualification, the above analysis also applies in relation to the supply of Units 9 - 12 purchased by Site Instruction 3. The qualification concerns the change to Site Instruction 3 made on 16 May 2014. As changed, Site Instruction 3 required the defendant to take custody of Units 9 - 12 and arrange adequate storage until further instruction, without progressing fabrication/assembly works.
81 The Agreement does not expressly require the defendant to store Hagglund vehicles prior to making them ready for mobilisation, pending further instruction. However, no party contended that the Site Instruction Change was not effective to vary the contract reflected in Site Instruction 3. The pleadings express the parties' position that the Site Instruction Change required the defendant to store Hagglund vehicles prior to making them ready for mobilisation, pending further instruction.34 Such storage could still be considered to be 'storage prior to mobilisation (if required)' within the meaning of cl 3 of the Schedule of Services.
82 More difficult questions arise as to the payment (if any) to be received for the storage of Units 9 - 12 prior to their being ready for mobilisation. The Site Instruction Change refers to the final milestone payments of $115,000 being made once the units are ready for operations. It does not appear that either party contends that the Compensation Schedule makes provision for payment of storage prior to the units being ready for mobilisation. However, as with Units 5 - 8, it is unnecessary to determine the remuneration (if any) to be paid for the storage of Units 9 - 12 at this stage of the proceedings.
Labour
83 Site Instruction 3 did not include any provision for labour. Site Instruction 1 did include the hire of labour, but the completion date for the labour hire was 27 April 2014. I cannot see any basis for implying in an order for the supply of vehicles an order for the provision of labour. None of the labour hire invoiced from 1 May 2014 was the subject of a Site Instruction.
Answer to question
84 In my view, the plaintiffs purchased the following services which were the subject of the pleaded invoices, by Site Instructions 1 and 3:
1. the hire of three Hagglund vehicles (BVH001, BVS002, and BVS003) from 1 May 2014 to 30 June 2014;
2. the storage, prior to mobilisation and after being ready to ship to site, of one Hagglund vehicle (BVS004) from 26 May 2014 to 12 September 2014;
3. the storage, prior to mobilisation and after being ready to ship to site, of two Hagglund vehicles (BVS005 and BVS006) from 1 May 2014 to 12 September 2014;
4. the storage, prior to mobilisation and after being ready to ship to site, of one Hagglund vehicle (BVS007) from 16 May 2014 to 12 September 2014; and
5. the custody and storage, prior to being made ready for mobilisation, of four Hagglund vehicles (BVS008, BVS009, BVS010 and BVS011) from 27 July 2014 to 12 September 2014.
Preliminary question (d): effect of invoices
85 The fourth preliminary question is:
Does the giving of the invoice referred to at paragraph 163 of the Re-amended Counterclaim, and the notices referred to at paragraphs 173 - 174, irrespective of the truth of what is said in the notices, establish CSJV's liability to pay the amount referred to in paragraph 164.1 in light of the site instructions?
How the issue arises
86 This issue arises in relation to the defendant's claim for payment of a component of its 'upfront costs' in respect of ordered Hagglund vehicles. As noted above, cl 3(ii) of the Compensation Schedule provides for the defendant to receive a payment of $328,000 for each Hagglund BV206 vehicle ordered. Clause 2 of the Milestone Payment Schedule provides for this sum to be paid by instalments. The last instalment of $115,000 for each vehicle is payable 'at time of being ready to ship to site, Belmont'.
87 It is common ground that, on 9 September 2015, the defendant issued the final invoice, which is referred to at par 163 of the Counterclaim. That invoice claimed payment of $805,000, being $115,000 in respect of seven Hagglund BV206 vehicles. It is common ground that this amount has not been paid.
88 Paragraph 173 of the Counterclaim pleads that, by email dated 26 May 2014, the defendant gave the plaintiffs notice that Units 5 - 8 were ready to ship to site. The plaintiffs admit that a notice was given, deny that the notice stated that a further four units were ready to mobilise to site and deny that any of the units were actually ready to mobilise to site.35
89 Paragraph 174 of the Counterclaim pleads that, by email dated 23 July 2014, the defendant gave notice to the plaintiffs that Units 9 - 12 had been cleared from quarantine and were available for mobilisation from the defendant's premises in Belmont. The plaintiffs say that the notice was by letter and deny that Units 9 - 12 were ready to mobilise to site.36
90 In their written submissions, the plaintiffs concede that the notices pleaded in pars 173 and 174 of the Counterclaim were sent and received.37
91 The issue which the parties raise for my determination is whether the mere issue of the final invoice and the notices pleaded at par 173 and 174 of the counterclaim establish the plaintiffs' liability to pay the final instalment of $115,000 in respect of each vehicle, irrespective of whether the vehicles were in fact ready to ship to site.
Resolution of the issue
92 In my view, it is clear that the plaintiffs' liability to pay the final instalment of $115,000 in respect of each Hagglund BV206 ordered depends on those units being ready to ship to site. It is the actual readiness, and not merely a statement by the defendant that they were ready, which creates the liability.
93 I accept the plaintiffs' submissions that, in order for a Hagglund vehicle to be ready to ship to site, it must be 'modified as required ready for mobilisation'. The required modifications included that the Hagglund vehicles be fitted with tipper assemblies and mounts for push blades. Before it was entitled to the final milestone payment under item 2 of the Milestone Payment Schedule, the defendant had to complete the necessary modification of the vehicles such that they are ready to be mobilised to the plaintiffs' site. The mere issue of the pleaded invoice and notices does not entitle the defendant to payment of $115,000 if the necessary modifications have not in fact been undertaken.
94 Even if the giving of a notice that the Hagglund vehicles were ready to ship to site did suffice, the notice given in relation to Units 9 - 12 would not satisfy the requirement. The pleaded notice did not say that Units 9 - 12 were ready to ship or mobilise to site. Rather, it said that the units 'had been cleared from quarantine and were available for mobilisation' from the defendant's premises in Belmont. That notice was given in a context where the Site Instruction Change of 16 May 2014 required the defendant to not progress fabrication/assembly work to Units 9 - 12 but only to arrange storage after the units had been cleared out of quarantine at an Australian port. The Site Instruction Change also specified that the final milestone payments for Units 9 - 12 would only be made once the units were ready for operations. In that context, the notice pleaded at par 174 of the Counterclaim is not a notice that Units 9 - 12 are ready to ship to site within the meaning of cl 2 of the Milestone Payment Schedule. Even if, contrary to my view, the mere issue of a notice that the vehicles were ready to ship to site created the liability to make the final milestone payment, the pleaded notice did not satisfy that requirement.
95 The defendant relies on that part of cl 6(iv) of the Compensation Schedule which provides that, upon termination by the contractor, any outstanding invoices along with any outstanding amounts yet to be invoiced shall be paid in accordance with regular payment terms and are non-refundable under any circumstances. However, that clause must be understood as referring to invoices which the defendant was entitled to issue under the terms of the Agreement. The clause cannot reasonably be construed as requiring the plaintiffs to pay any amount that the defendant may specify in an invoice, regardless of whether the defendant was entitled to claim that amount under the Agreement. The defendant had no entitlement to invoice the plaintiffs for the final milestone payment of $115,000 before the units were actually ready to ship to site. Clause 6(iv) does not provide for the creation of a liability by issue of an invoice for amounts to which the defendant had no entitlement under the Agreement.
96 The defendant also relies on cl 14.1 and cl 14.4 of the General Conditions. It argues that if the plaintiffs do not notify the defendant that an invoice is disputed within 14 days of receipt, as provided for in cl 14.4, the invoice becomes an 'undisputed invoice' which the plaintiffs are obliged to pay under cl 14.1 of the General Conditions. I do not accept that submission. Clause 14.5 of the General Conditions provides that the plaintiffs may dispute any amount which has been invoiced, even if they have already paid the amount. Other provisions limit the plaintiffs' payment obligation to the Site Instruction Price. Construed as a whole, I do not regard cl 14 of the General Conditions as precluding the plaintiffs from disputing in these proceedings their liability to pay the amount of an invoice.
97 In any event, it is apparent that the plaintiffs did notify the defendant that they disputed the final invoice dated 9 September 2015 within 14 days of receiving the invoice. The plaintiffs' defence to the counterclaim was filed on 21 September 2015 and disputed their liability to pay the amount specified in the final invoice. The defendant's written submissions also admit that the plaintiffs rejected the final invoice in a letter of 23 September 2015.38
98 For these reasons, the answer to the fourth preliminary question is 'no'.
Preliminary question (e): spare parts payment
99 The fifth preliminary question is:
Is FDS entitled, pursuant to the Agreement, to withhold from or not pay to CSJV the amount of $450,780.16, being the amount the subject of paragraph 49 of the Statement of Claim?
How the issue arises
100 This preliminary question relates to the plaintiffs' claim for repayment of $450,780.16, which the plaintiffs paid to the defendant for the purchase of additional spare parts.
101 The following facts are pleaded and admitted. On or around 18 March 2014, the plaintiffs issued to the defendant Site Instruction 8, in which they instructed the defendant to order a number of additional spare parts at a listed price of £211,070.00. On or around 21 March 2014, the defendant issued an invoice for $450,780.16 (inclusive of GST), being the equivalent of £211,070.00. The plaintiffs paid this amount on or about 31 March 2014. At about this time the defendant placed an order for the spare parts with L Jackson & Co Ltd. Subsequently, a Site Instruction Change directed the defendant to cease the procurement of the spare parts.39
102 The plaintiffs plead that the defendant paid to L Jackson & Co the amount of $450,780.16, or its equivalent in pounds sterling, for the supply of the spare parts.40 The defendant must know whether it paid the money to L Jackson & Co. Despite this, the defendant has not admitted that the money was paid.41
103 If the defendant did use the money paid by the plaintiffs to purchase spare parts, then title to the parts would have passed to the plaintiffs on the later of payment by the plaintiffs and the defendant acquiring title to the parts (so as to be able to pass title to the plaintiffs). That is because cl 7.7 of the General Conditions provides that title to materials to be incorporated into the Services passes to the plaintiffs when the plaintiffs pay for them or on delivery to site, whichever occurs earlier. The clause clearly survives termination of the Agreement.42 In that event, the defendant would have been obliged to buy back the unused spare parts at cost price at the conclusion of the hire contract, pursuant to cl 5(i) of the Compensation Schedule. In that scenario, the defendant would be obliged to pay the plaintiffs the sum of $450,780.16, being the cost price of the spare parts it was to purchase from the plaintiffs.
104 The plaintiffs submit that, if the defendant retained the $450,780.16 and did not pay it to L Jackson & Co, it would have no basis for withholding the money from the plaintiffs. They say that, if the defendant retained the money and did not use it to pay for spare parts, the plaintiffs would have a restitutionary claim based on a total failure of consideration. They also say that the money would be subject to a Quistclose trust which obliges the defendant to return the money to the plaintiffs, given that the purpose for which the purchase price was given cannot be fulfilled.43
105 There are other possible factual scenarios which the plaintiffs' submissions do not address. It may be that part of the money was used to purchase parts and part of it was retained. It may be that the whole of the money was paid by the defendant to L Jackson & Co but the defendant did not acquire title to the parts before the Agreement was terminated.
106 I am not able at this time to make any determination as to what amount may be owing to the plaintiffs in respect of the spare parts payment, and on what basis it may be owed. It would not be appropriate for me to do so when the facts which would establish the defendant's liability are not proven or agreed.44
107 However, the preliminary question does not require determination of the nature and extent of the defendant's liability to the plaintiffs. Rather, it concerns a question of the proper construction of the Agreement, namely whether the Agreement gives the defendant an entitlement to withhold or not pay the money to the plaintiffs. The defendant asserts that such an entitlement arises from cl 6(iv) of the Compensation Schedule. The defendant says that that clause provides that, upon termination, all amounts previously paid to the defendant at the time of termination shall be retained by it and be non-refundable under any circumstances. The question of whether cl 6(iv), on its proper construction, entitles the defendant to retain the money, even if it would otherwise be required to refund it, is properly determined on the facts agreed before me.
Resolution of the issue
108 As I have noted, cl 6(iv) of the Compensation Schedule is not to be read in isolation, but must be construed together with all of the other terms of the Agreement. That includes the other provisions of the Compensation Schedule.
109 The general structure of the Compensation Schedule informs the meaning to be given to cl 6(iv).
110 Clause 3 deals with the project initiation costs and the $328,500 payment for each BV206 vehicle ordered. Clause 4 deals with rates for the hire of the Hagglund BV206 vehicles, and provision of labour. Clause 4 also refers to push blades and workshop facilities, but these are included in the hire rate. Clause 5 deals with the purchase of spare parts and consumables 'at demonstrable cost', and provides for what will happen to spare parts at the conclusion of the hire contract.
111 Clause 6 of the Compensation Schedule is in two parts.
112 The first four sub-clauses deal with the hire period for the BV206 vehicles. The first cl 6(i) provides that there is no minimum hire period and there are no hire cancellation penalties. Clause 6(ii) deals with termination during the period of a BV206 shipment. Clause 6(iii) deals with delay in mobilisation to site. Each of these clauses is concerned with the hire of Hagglund BV206 vehicles.
113 The second part of cl 6 of the Compensation Schedule comprises the second cl 6(i), and provides for the hire of labour to be cancelled at any time with seven days' notice.
114 In my view the subject of cl 6(iv), and the balance of the first part of cl 6, is the hire period of, and cancellation payments in respect of, the Hagglund vehicles. The second part of cl 6 deals with the hire period for labour. Clause 5 deals with the purchase of spare parts and the obligations of the parties at the conclusion of the hire contract. In that context, cl 6(iv) is properly understood as relating only to amounts paid to the contractor in accordance with the Agreement in respect of the hire of the Hagglund vehicles, being the upfront costs provided for in cl 3 and the hire costs provided for in cl 4(i) - (ii) of the Compensation Schedule. That is, on its proper construction, cl 6(iv) of the Compensation Schedule does not entitle the defendant to retain money paid for spare parts without repurchasing acquired parts under cl 5(i) of the Compensation Schedule or refunding money not used for the purchase of spare parts.
115 The conclusion I have reached above is based on the structure of the Compensation Schedule without regard to the headings to the various clauses and subclauses in the compensation schedule. Under cl 36.1 of the General Conditions, headings are used for ease of reference only and must not be used to construe or interpret the provisions of the Agreement.
116 I would therefore answer preliminary question (e) 'no'.
Preliminary question (f): interest
117 The final preliminary question asks whether interest is payable on unpaid amounts due for more than 30 days, under s 19 of the Construction Contracts Act. Section 19 implies the provisions of sch 1 div 6 in a construction contract that does not have a written provision about interest to be paid on any payment that is not made at the time required by the contract. The implied provision provides for interest to be payable under the construction contract by a party to another party on or before a certain date but which is unpaid after that date, at the rate prescribed by s 8(1)(a) of the Civil Judgments Enforcement Act 2004 (WA).
118 It is now common ground that the Agreement is a construction contract for the purposes of the Construction Contracts Act.45 It is also common ground that the Agreement does not contain any express provision for interest on overdue amounts. In those circumstances, s 19 of the Construction Contracts Act implies provision for payment of interest into the Agreement.
119 I agree with the parties' common position that the answer to preliminary question (f) is 'yes'.
Orders
120 For the reasons explained above, I would make an order that the preliminary questions, which I ordered to be tried as preliminary issues in the action, be answered as follows:
Question (a) Does the Agreement require CSJV to hire a minimum number of Hagglunds, or a minimum level of staff, or is it an agreement pursuant to which CSJV offers to purchase services by issuing a Site Instruction?
Answer: The Agreement is an agreement pursuant to which CSJV offers to purchase services by issuing a Site Instruction.
- Question (b) If the answer to question 1 is that the Agreement requires CSJV to hire a minimum number of Hagglunds and staff, then:
(i) what does the agreement stipulate as the minimum number of Hagglunds and staff, and during what period of time does the agreement stipulate that FDS can charge for those services?
(ii) is FDS entitled to be paid a mark-up of 25% on the value of the minimum level of staff?
- Answer: Unnecessary to answer.
Question (c) If the answer to question 1 is that the agreement is one by which CSJV offers to purchase services by issuing a Site Instruction, did CSJV purchase, by a Site Instruction, any of the services that are the subject of paragraphs 178 and 186 of the Re-amended Counterclaim?
Answer: CSJV purchased the following services that are the subject of paragraphs 178 and 186 of the Re-amended Counterclaim by Site Instruction No 001 and Site Instruction 003:
1. the hire of 3 Hagglund vehicles (designated in the invoices as BVH001, BVS002, and BVS003) from 1 May 2014 to 30 June 2014;
2. the storage, prior to mobilisation and after being ready to ship to site, of one Hagglund vehicle (designated in the invoices as BVS004) from 26 May 2014 to 12 September 2014;
3. the storage, prior to mobilisation and after being ready to ship to site, of two Hagglund vehicle (designated in the invoices as BVS005 and BVS006) from 1 May 2014 to 12 September 2014;
4. the storage, prior to mobilisation and after being ready to ship to site, of one Hagglund vehicle (designated in the invoices as BVS007) from 16 May 2014 to 12 September 2014; and
5. the custody and storage, prior to being made ready for mobilisation, of four Hagglund vehicles (designated in the invoices as BVS008, BVS009, BVS010 and BVS011) from 27 July 2014 to 12 September 2014.
Question (d) Does the giving of the invoice referred to at paragraph 163 of the Re-amended Counterclaim, and the notices referred to at paragraphs 173 - 174, irrespective of the truth of what is said in the notices, establish CSJV's liability to pay the amount referred to in paragraph 164.1 in light of the site instructions?
Answer: No.
Question (e) Is FDS entitled, pursuant to the Agreement, to withhold from or not pay to CSJV the amount of $450,780.16, being the amount the subject of paragraph 49 of the Statement of Claim?
Answer: No.
Question (f) Is interest payable on unpaid amounts due for more than 30 days, under section 19 of the Construction Contracts Act 2004?
Answer: Yes.
1 Called the 'DomGas ITZ Completions Service Agreement for the Hire & Operations of Hagglund Units Subcontract No: 05033-Y-8003'.
2 Statement of claim, par 5; defence, par 5.
3 Statement of claim, par 6; defence, par 6.
4 Statement of claim, par 7; defence, par 7.
5 Statement of claim, par 8; defence, par 8.
6 Statement of claim, par 25, defence, par 25.
7 TB 62 - 103.
8 Statement of claim, par 36; defence, par 36.
9 TB 104.
10 Statement of claim, par 37(b); defence, par 37.
11 Statement of claim, par 40; defence, par 40.
12 Statement of claim, par 41; defence, par 41.
13 TB 105.
14 Statement of claim, par 42; defence, par 42.
15 Statement of claim, pars 52 - 55; defence, pars 52 - 55.
16 Statement of claim, par 64; defence, par 64.
17 Statement of claim, par 66; defence, par 66.
18 TB 109.
19 TB 111 - 112.
20 TB 113 - 114.
21 TB 115 - 116.
22 TB 118 - 119.
23 TB 107.
24 TB 110.
25 TB 107.
26 TB 117.
27 TB 121 - 156.
28 Statement of claim, par 113; defence, par 113; TB 120.
29 See Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 [157] - [159] and Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd[2016] WASC 22 [157].
30Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109.
31 Counterclaim, pars 169 - 171, 173, 174 and 177.
32 Counterclaim, pars 178 - 183.
33 ts 113.
34 Statement of claim, par 108; defence, par 108; counterclaim, par 172; defence to counterclaim, par 47.
35 Defence to counterclaim, par 48.
36 Defence to counterclaim, par 49.
37 Plaintiffs' submissions, par 42.
38 Defendant's submissions, par 82.
39 Statement of claim, pars 47 - 49, 51; defence, pars 47 - 49, 51.
40 Statement of claim, par 50.
41 Defence, par 50.
42 See cl 36.3 of the General Conditions.
43 Referring to Westgem Investments Pty Ltd v Saracen Project Management Pty Ltd [No 2][2012] WASC 358 [47] - [50].
44Bass v Permanent Trustee Co Ltd[1999] HCA 9; (1999) 198 CLR 334 [43] - [56].
45 Counterclaim, par 161; defence to counterclaim, par 36.
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