Stuart v Feteni; Coogee Sands Apartments v Stuart - [2004] NSWSC 237

No judgment structure available for this case.

CITATION: STUART v FETENI & ORS; COOGEE SANDS APARTMENTS v STUART & ANOR [2004] NSWSC 237 revised - 8/04/2004

HEARING DATE(S): 23/2/04, 24/2/04, 25/2/04, 26/2/04, 27/2/04, 1/3/04, 2/3/04, 3/3/04, 5/3/04

JUDGMENT DATE:
7 April 2004

JUDGMENT OF: McDougall J at 1

DECISION: See para [341] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - contract - amended standard form Building Works Contract - whether entitled to extensions of time - determination of date for extended practical completion - whether entitled to liquidated damages - whether liquidated damages clause a penalty - whether unconditional guarantee of completion date given - whether any such guarantee relied upon - whether negligent certification that the design of works complied with relevant requirements - whether certification relied upon in deciding whether to enter into the contract - misrepresentation

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170
Esanda Finance Corporation Ltd v Plessnig (1989) 166 CLR 131
Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504
Turner Corporation Pty Ltd (Receiver & Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378

PARTIES :

In proceedings 55021/01:
Stuart Pty Ltd (Plaintiff)
Feteni Pty Ltd (First Defendant)
Robin Edmiston & Associates Pty Ltd (Second Defendant)
Tatton Park Pty Ltd (Third Defendant)
In proceedings No. 55010/02:
Coogee Sands Apartments Pty Ltd (Plaintiff)
Stuart Pty Ltd (First Defendant)
Alexander Stuart (Second Defendant)

FILE NUMBER(S): SC 55021/01; 55010/02

COUNSEL: F C Corsaro SC/M J Dawson (Stuart)
J B Simpkins SC/N J Kidd (Feteni & Coogee Sands)
G A Sirtes (Edmiston & Associates)
I G B Roberts (Tatton Park)
R A Cavanagh (Architects Haywood + Bakker - first cross-defendant in matter 55021/01)

SOLICITORS: PricewaterhouseCoopers Legal (Stuart)
Snelgrove & Partners (Feteni & Coogee Sands)
Henry Davis York (Edmiston & Associates)
Phillips Fox (Tatton Park)
James Tuite & Assoc (Architects Haywood + Bakker)

INDEX

STUART PTY LTD v FETENI PTY LTD & ORS

55021/01

COOGEE SANDS APARTMENTS PTY LTD v STUART

PTY LTD & ANOR

55010/02

Paragraph

Introduction 1

Order under Pt 31 r 2 5

The issues for decision 7

The contract 12

Findings on credibility 30

The events leading up to 30 August 1999 49

The meeting of 30 August 1999 62

Extension of time claims: general matters 81

EOT 2: furniture delays 84

The facts 84

The expert evidence 117

Construction of clause 9.01 – critical path 126

The contractual requirements 144

Conclusion on EOT 2 161

EOT 3: planter boxes 162

The facts 162

The expert evidence 186

INDEX

EOT 3: planter boxes 162

The contractual requirements 195

Conclusion on EOT 3 203

EOT 4: disabled access ramp 204

The facts 204

The expert evidence 241

Stuart’s design obligation 243

Analysis 250

The contractual requirements 265

Conclusion on EOT 4 266

The date for practical completion 267

The date of practical completion 268

Penalty 280

Liquidated damages – other issues 287

The notice argument 288

The grace period 292

The prevention principle 295

Conclusions on liquidated damages 298

Feteni’s claim for general damages 299

The claim against Edmiston Associates 300

The claim against Tatton Park 334

Cross-claims between the defendants 337

CSA’s claim: 55010 of 2002 338

Summary of conclusions; order 341

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

7 April 2004

PTY LTD & ANOR

JUDGMENT

HIS HONOUR:

Introduction

1 On 14 July 1998, Feteni Pty Ltd (“Feteni”) as proprietor and Stuart Pty Ltd (“Stuart”) as builder entered into a building contract (“the contract”). The work to be performed by Stuart under the contract included alterations and additions (“the project”) to an existing building, used as a motel, at 161 to 167 Dolphin Street, Coogee (“the site”). The site, including its improvements, was owned by Feteni. Feteni was the operator of the motel, under the name “Coogee Sands Motor Inn”. Robin Edmiston and Associates Pty Ltd (“Edmiston Associates”) was named as the architect under the contract, although by special condition 1.3, references to the “Architect” were to be read as references to the “Project Manager” unless otherwise provided. The project manager was Tatton Park Pty Ltd (“Tatton Park”).

2 The intention underlying the project was to convert the existing motel premises into serviced apartments, providing a superior level of accommodation to people who might otherwise take a hotel or motel room for short term stays. Initially, it was intended that the apartments (each of which would have separate strata title) would be sold to investors who would lease them back to an operator.

3 There are two sets of proceedings in this Court relating to the contract. Stuart is the plaintiff in proceedings 55021 of 2001. Coogee Sands Apartments Pty Ltd (“CSA”), a related company of Feteni, is the plaintiff in the other.

4 The essential issues in dispute between Stuart and Feteni, and Stuart and CSA, relate to:

(1) The date on which Stuart achieved practical completion.

(2) Stuart’s entitlement to extensions of time for three extension of time claims known as EOT 2 (the furniture dispute), EOT 3 (the planter box dispute) and EOT 4 (the disabled access ramp dispute).

(3) The extended date for practical completion under the contract having regard, in particular, to those three extension of time claims.

Order under Pt 31 r 2

5 The parties were agreed that some of the issues in the proceedings should be referred to a referee for enquiry and report pursuant to Pt 72 r 2(1). To facilitate that, I made an order pursuant to Pt 31 r 2 that I should decide separately all issues in proceedings 55021 of 2001 and 55010 of 2002 other than:

(1) The claims made by Feteni and CSA relating to alleged defective works (including lift system) performed by Stuart;

(2) The claims made by Feteni that it is entitled to set off any damages other than monetary entitlements it may have arising out of the alleged defective works (including lift system) against any liability it may be found to have to Stuart; and

6 The excepted matters are to be the subject of the proposed reference. An order for reference will be included in the orders to be made consequent upon publication of these reasons.

The issues for decision

7 I directed the parties to furnish a list of the issues that would require decision by me, having regard to the order under Pt 31 r 2. After considerable negotiation, Stuart produced the following list:

STUART PTY LTD v FETENI PTY LTD & ORS

SUPREME COURT – CONSTRUCTION LIST – 55021/01

List of Issues for Determination

Issues between [Stuart] and [Feteni]

1. Having regard to the terms of the Contract and in the circumstances which occurred, whether the progress of the Works were delayed by:

(i) the nature and extent of the delay (by reference to its commencement, cessation and duration);

(ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion; and if so:

(iii) by how much;

(iv) whether the delay was a compensable cause of delay;

(i) the nature and extent of the delay (by reference to its commencement, cessation and duration);

(ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion; and if so:

(iii) by how much;

(iv) whether the delay was a compensable cause of delay;

(i) the nature and extent of the delay (by reference to its commencement, cessation and duration);

(ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion having particular regard to:

(A) whether [Stuart] was responsible under the Contract for the design of disabled access and whether the cause of any delay was beyond the control of [Stuart];

(B) whether clause 9.01A of the Contract disentitles [Stuart] to any extension of time entitlement in relation to disabled access that it would otherwise have;

(C) the alleged instructions by or on behalf of [Feteni] in respect of:

(1) the re-grading of the footpath; and/or

(2) the laying of new pavers as part of such re-grading;

(D) whether those alleged instructions constituted a variation;

(iv) whether the delay (or parts thereof) was a compensable cause of delay;

(d) what delays were concurrent with (a), (b) and (c) such that if it be held that [Stuart] is not entitled to an extension of time for practical completion by reason of those matters, then is [Stuart] otherwise entitled to an extension of time by virtue of those concurrent delays.

2. Having regard to (1), what was the Date for Practical Completion of the Works.

3. What was the Date of Practical Completion of the Works.

4. What is [Feteni’s] entitlement (if any) to liquidated damages having regard to the terms of the Contract and the circumstances which occurred and particularly:

(b) [Feteni’s] occupation of the Works prior to the issue by [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, of the certificate of Practical Completion;

(c) whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, gave the required notices which would entitle [Feteni] to apply liquidated damages;

(d) whether the amounts claimed by [Feteni] to be due to it as liquidated damages are unenforceable as being a penalty;

(e) the operation of the grace period referred to in clause 10.14(ii) of the Special Conditions to the Contract; and

(f) the operation of Special Condition 73 of the Contract and prevention.

5. Having regard to (4), if [Feteni] is found to be not entitled to liquidated damages, the amount of [Feteni’s] entitlement (if any) to damages by reason of [Stuart’s] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion.

6. Having regard to the terms of the Contract and in the circumstances which occurred, whether [Stuart] was entitled to a variation in relation to disabled access.

[Stuart’s] claims against [Edmiston]

(a) any liability to pay damages to [Feteni] arising from [Stuart’s] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion;

(b) any loss [Stuart] may suffer arising from any inability to claim from [Feteni] under the Contract:

(i) its direct costs and expenses of delay; and/or

(ii) a variation,

in relation to disabled access.

(a) whether [Edmiston] owed [Stuart] the duty of care pleaded in paragraph 65 of the Amended Summons; and if so:

(b) whether [Stuart] relied upon the letter of 2 June 1998; and if so:

(c) whether [Stuart’s] reliance was reasonable; and if so:

(d) whether [Stuart’s] loss was caused by any act or omission of [Edmiston];

(i) [Stuart’s] own breach of contract;

(ii) [Feteni’s] alleged instructions referred to in 1(c)(ii)(C);

(f) if it is found that the loss sustained by [Stuart] was caused by [Edmiston’s] negligence, whether [Stuart] was contributory [sic] negligent in causing such damage.

9. In the circumstances which occurred, whether [Edmiston] made negligent misstatements.

10. In the circumstances which occurred, whether [Edmiston] engaged in conduct which was misleading or deceptive or likely to mislead or deceive by issuing the 2 June 1998 letter to [Stuart].

[Stuart’s] claims against [Tatton Park]

11. In the event that [Stuart] is not entitled under the Contract to the claimed extension of time in relation to disabled access, whether [Stuart] is entitled to recover from [Edmiston]:

(a) any liability to pay damages to [Feteni] arising from [Stuart’s] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion;

(b) any loss [Stuart] may suffer arising from any inability to claim from [Feteni] under the Contract:

(i) its direct costs and expenses of delay; and/or

(ii) a variation,

in relation to disabled access.

12. In the circumstances which occurred, whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, made negligent misstatements.

13. In the circumstances which occurred, whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, engaged in conduct which was misleading or deceptive or likely to mislead or deceive.

[Feteni’s] Cross Claim against [Edmiston]

(a) [Edmiston] owed [Feteni] a duty of care as pleaded in paragraph 28 of the Further Amended Second Cross Claim; and if so:

(b) whether [Edmiston] breached any such duty; and if so:

(c) whether any breach by [Edmiston] caused the damage alleged by [Feteni].

[Edmiston’s] Cross Claim against [Feteni]

15. Whether [Edmiston] and [Feteni] were joint tortfeasors in relation to [Stuart]; and if so:

16. If it is found that [Edmiston] is liable to [Stuart], was [Feteni] also responsible for the loss sustained by [Stuart].

[Edmiston’s] Cross Claim against [Tatton Park]

17. Whether [Edmiston] and [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, were joint tortfeasors in relation to:

(a) [Stuart]; and/or

(b) [Feteni],

and if so:

18. If it is found that [Edmiston] is liable to either [Stuart] or [Feteni], was [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, also responsible for the loss sustained by either [Stuart] or [Feteni].

[Tatton Park’s] Cross Claim against [Edmiston]

19. Whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, and [Edmiston] were joint tortfeasors in relation to [Stuart]; and if so:

20. If it is found that [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, is liable to [Stuart], was [Edmiston] also responsible for the loss sustained by [Stuart].

COOGEE SANDS APARTMENTS PTY LTD v STUART PTY LTD & ANOR
SUPREME COURT – CONSTRUCTION LIST – 55010/02

List of Issues for Determination

21. What representations (if any) were made by [Stuart] to [CSA] on or about 30 August 1999; and

22. Whether [CSA] relied upon any representations found to be made by [Stuart]; and if so:

23. Whether [CSA’s] reliance was reasonable; and if so:

24. Whether [CSA] suffered any loss as a result of such reliance;

25. Whether [Stuart] engaged in conduct in contravention of s52 of the Trade Practices Act (1974) Cth;

26. Whether [Mr Alexander Stuart] was involved in that contravention for the purposes of s75B and s82 of the Trade Practices Act (1974) Cth;

27. Whether [Stuart] negligently misstated to [CSA] the date of completion of the building;

28. The amount of damages (if any) to which [CSA] is entitled under section 82 of the Trade Practices Act in respect of (25) and (26) and at common law in respect of (27).”

8 As to paragraph 1(d) of the issues in proceedings 55021 of 2001: the parties agreed that this was not to be decided by me and that it should be the subject of reference if necessary.

9 As to paragraph 4(f) of those issues: Feteni did not agree that this was in issue between it and Stuart.

10 As to paragraph (6) of those issues: the parties agreed that this, to some extent, overlapped the issues stated in paragraph 1(c), and that I was not required to consider any question of quantum relating to that variation.

11 As to paragraphs 12 and 13 of those issues: the shaded words were inserted by consent into the document that was propounded by Stuart.

The contract

12 The terms of the contract were based on the standard form Building Works Contract – JCC– F 1994 Without Quantities and With Staged Practical Completion. The standard form was very substantially amended, because there was no provision for staged practical completion. At least some of the problems of interpretation that the parties argued arose from the conversion process.

13 By clause 1.02.04 and Appendix Item B.4, the “Works” under the contract were defined as follows:

“The whole of the work to be completed and executed by the Builder, namely.

To refine and revise the Preliminary Documents into the Final Documents all of which shall comply with the requirements of statutory authorities having jurisdiction over the Works and otherwise in conformity with this Contract but not limited to [sic] the Building Code of Australia and the Scope of Works by renovating and constructing additions to the existing building so as to provide to the Proprietor a fully operational strata titled 4 star (as defined and satisfy the prerequisites of [sic] the Australian Automobile Association classification scheme dated January 1997) Serviced Apartment building and which shall be completed in one stage or stages [sic] as provided herein.”

14 Despite the reference to the works as including “one stage or stages” the contract provided, as I have said, that there were to be no stages.

15 The start date was defined as 31 August 1998, or such other date as might be agreed, subject to conditions as to “finance satisfactory to the proprietor … [being] approved and in place” by that date. It does not appear that any other date was agreed as the start date.

16 The date for practical completion was, subject to extensions of time, 28 weeks after the start date.

17 Stuart’s obligations were said to be to commence execution of the works once the proprietor made the site available (clause 1.03.01); to proceed “regularly and diligently” with the works in accordance with the contract (including the “Contract Documents” being the “Final Documents”); and to bring the works to practical completion by the date for practical completion (clause 1.03.03).

18 By special condition clause 3.3, this last obligation was expanded as follows:

AND

19 The “Contract Documents” were said to be those listed in item B.5 of the Appendix (clause 1.02.06). Identification of that appendix was not an easy matter. The appendix to the JCC-F 1994 form of contract was amended to refer to “pages 28 to 34 inclusive” of the “Appendix in Annexure B”. That appears to have been a misprint for, or misreference to, pages 30 to 34 of that appendix. If that assumption is correct (and the parties seemed to think that it was) then the Contract Documents were defined, by item B.5, to be the documents “to be completed”. There was nothing to suggest that there was an annexure “B” to the special conditions (but the special conditions themselves were annexure “B” to the contract). Annexure “C”, however, did identify a number of documents, most of which were not in evidence and some at least of which appear to be of no conceivable relevance.

20 The “Final Documents” into which the Contract Documents were to be revised are referred to in a number of places in the contract (specifically, in the special conditions) but do not appear to be defined except in so far as, by inference, they are the product of revision of the “Preliminary Documents” or “Contract Documents”.

21 By special condition 2, the contract was further complicated by the insertion into it of the concept of a “preliminary period” and of provisions relating to that concept. The preliminary period was the “period commencing on the date hereof” (ie, presumably, 14 July 1998) and ending on the Start Date (ie, absent any agreement to the contrary, 31 August 1998).

22 The “Works” were then divided into a number of modules, which were described in special condition 2 (or, more accurately, in clause 1.03A.1.3 of the conditions of contract as inserted by special condition 2). The description of the modules occupied almost four pages, but it is only necessary to refer to the “design modules” set out in part A of the description of the modules. For present purposes, not all the design modules need to be set out. Those that are said to be relevant are:

DESIGN MODULES

PROVIDED THAT

…

C. The revision of the Preliminary Documents and co-ordination between Consultants of the revision process in relation to the Preliminary Documents (as listed in clause 1.03A.1.6.1.)

D. Revision of the Preliminary Documents as listed in clause 1.03.1.6.1 so as to accommodate them into the design and to become the Final Documents but incorporating no less than or lesser standard as required by : -

1. …

2. BA and DA consent conditions including specifications and documentation;

3. Building Code of Australia;

…

E. … “

23 Practical Completion was defined by clause 1.02.10 of the conditions of contract as follows:

“1.01.10 Practical Completion – The state of being substantially complete and fit for use and/or occupation by the Proprietor, all tests required under the provisions of this Agreement having been satisfactorily completed – AND the obtaining by the Builder from the relevant Local Council of a Building Certificate under the Local Government Act; a Certificate of Classification under the Building Code of Australia; notification of change of or special by-laws as required by the Local Council; Local Council approved Section 88B Instrument and Strata Plan all duly signed by the Local Council and in registrable form (refer to special condition 73)”. and omissions or defects being limited to items: (See special condition 1.6).”

24 The shaded words were inserted by special condition 1.6.

25 Special condition 1.6 makes it necessary to consider special condition 73. Relevantly, that reads as follows:

26 Clause 9 of the conditions of contract, as amended by the special conditions, reads, relevantly, as follows:

“9.01 NOTIFICATION OF DELAYS

If the commencement or progress of the execution of so much of the Works constituted by any one or more of the Stages is or will be delayed by any cause beyond the control of the Builder including any act (other than any instruction by the Architect as to a Variation) default or omission on the part of the Proprietor, the Architect, any Separate Contractor, employee or agent of the Proprietor in a manner which might reasonably be expected to result in a delay in that Stage or those Stages reaching Practical Completion the Builder shall, if he desires to claim an extension of time for reaching Practical Completion of that Stage or any one or more of those Stages, as soon as practicable and in any event not later than fourteen (14) days after the cause of delay arose give a notice in writing to the Architect identifying the affected Stage or Stages and stating the nature, the cause and, where possible, the extent of the delay.

9.01A Unless otherwise contained herein the Builder will not be entitled to any extension in time caused by any non-compliance with any Regulations (Building Code of Australia [sic] Local Council and/or Regulatory Authorities) or for any industrial disputation originating from or arising out of things done or not done on the Site or in respect of labour employed in and about the Site either directly by the Builder or labour employed through other contractors, sub-contractors and/or suppliers or originating from any act committed by any person employed on the Site or committed off the Site giving rise to industrial disputation.

9.03 ARCHITECT’S DETERMINATION

Subject to the Builder having complied with the provisions of Clauses 9.01 and 9.02 the Architect shall as soon as practicable but not later than fourteen (14) days after receiving the Builder’s notice pursuant to Clause 9.02 determine what, if any, extension or extensions of time for Practical Completion of the particular identified Stage or Stages shall be granted to the Builder and shall thereupon notify in writing the Builder accordingly.

…

Notwithstanding that the Builder has not given either of or both notices pursuant to Clauses 9.01 and 9.02 the Architect may at any time by notice in writing addressed to the Builder extend the time or times for Practical Completion of any one or more Stages if in his opinion the Builder would otherwise be entitled to such an extension or extensions.

9.06 CONDITION PRECEDENT TO EXTENSION OF TIME

Notwithstanding the preceding provisions of this Section 9 the Builder shall not be entitled to any extensions of time unless he shall have taken proper and reasonable steps both to preclude the occurrence of the cause of delay and/or to avoid or minimise the consequences thereof.

…

9.10 OCCUPATION BEFORE PRACTICAL COMPLETION

Occupation of a Stage prior to Practical Completion of the Stage shall be dealt with as follows:

9.10.01 Should the Builder fail to bring a Stage to Practical Completion by the Date for Practical Completion for that Stage then the Proprietor may with consent of the builder and after issue by the Architect of the notice of occupancy hereinafter referred to occupy the whole or any portion or portions of those parts of the Works constituting that Stage prior to Practical Completion of that Stage.

9.10.02 In any such case the Architect shall after agreement between the parties as to the matters contained therein issue both to the Builder and to the Proprietor a notice of occupancy stating:

such occupation may take place;

9.10.03 The provisions of such notice shall take full effect notwithstanding any provisions of this Agreement to the contrary or inconsistent therewith.

… “

27 The shaded words were amended, or inserted (as the case may be), by the special conditions. It should also be noted that the special conditions deleted clause 9.10.04, which had read as follows:

“9.10.04 If the Proprietor occupies and/or uses the whole or any portion or portions of those parts of the Works constituted any Stage or Stages prior to Practical Completion … in the absence of any such agreement and such notice or of [sic] other written agreement between the Proprietor and the Builder then the whole of the particular Stage or Stages, as the case requires, shall be deemed to have reached Practical Completion on the date of commencement of such occupancy and/or use.”

28 Liquidated damages were dealt with by clause 10.14. (As drafted, that clause had dealt with the application of liquidated damages where Stuart failed to bring a stage of the works to practical completion by its date for practical completion.) It reads as follows:

10.14.A (See special condition 54).”

29 Clause 10.14A was inserted by special condition 54. It reads as follows:

“10.14A (i) If the Builder completes the Works after the date nominated for Practical Completion THEN the Builder shall pay to the Proprietor the sum of $15,000 per week or pro rata on a daily basis for part thereof from such date so nominated up until the date that Practical Completion is attained PROVIDED THAT if the effect of the Builder not so completing the Works by the date nominated for Practical Completion is that the Proprietor’s mortgagee increases the interest rate in respect of funds borrowed by the Proprietor in relation to the funding of this Contract THEN the reference herein to $15,000 per week shall be amended to $20,000 per week.

Findings on credibility

30 It is necessary to consider in some detail the way in which Stuart performed (or sought to perform) its obligations under the contract. There were conflicts in the evidence of Stuart and the evidence of Feteni, and those conflicts assume particular relevance for events that occurred after 25 August 1999. Accordingly, before I turn to the narrative of events, I will set out my findings on credibility.

31 Stuart’s principal witness of fact was its project manager, Mr Mark Georgiadis. Stuart also called, on issues of fact, its (then) managing director, Mr Alexander Stuart, and its foreman on the project, Mr Paul Dunand.

32 I have come to the conclusion that, in substance, I accept the evidence of Messrs Georgiadis, Stuart and Dunand. In general, where it conflicts with the evidence of fact called for the defendants, I prefer it.

33 To the extent that demeanour is a reliable guide, each of Messrs Georgiadis, Stuart and Dunand impressed me as someone who was doing his best to tell the truth to the best of his recollection.

34 The evidence of Mr Georgiadis was, to a very substantial extent, substantiated by contemporaneous documents – specifically, communications that he sent to other parties (usually, to Tatton Park) as relevant events occurred. It does not appear that Mr Georgiadis maintained a separate diary or system of file notes. His evidence was, in substance, that he documented relevant events, instructions or decisions in his correspondence. I see no reason to doubt that evidence – particularly where there is not, in the documents to which I have been taken, any indication of disagreement with facts stated in his correspondence. (By this I mean that although there were replies to most, if not all, of the documents emanating from Mr Georgiadis, those replies did not take issue with any facts stated in Mr Georgiadis’ documents.)

35 Further, I think, on the critical issues, Mr Georgiadis’ evidence is consistent with what, objectively regarded, is likely to have happened. This applies, in particular, to the account given by Mr Georgiadis of the meeting of 30 August 1999. Mr Stuart participated in that meeting and the same comment applies equally to his evidence. I discuss and analyse the different accounts of that meeting, against its factual background, in para [62] and following below.

36 Mr Georgiadis had a clear and detailed recollection of the relevant events. That is not surprising, given his day-to-day involvement. There was no occasion of any significance on which his recollection was shown to be faulty; and when it was, he readily admitted the error.

37 Mr Stuart had little day-to-day involvement. Indeed, his major involvement was in the events leading up to, and during, the meeting of 30 August 1999. Accordingly, one would not expect him to have had a clear and detailed recollection; nor did he profess to have one. Again, my acceptance of his evidence on the meeting of 30 August 1999 (which is really the only controversial matter with which his evidence dealt) is facilitated because it is consistent with what I regard as the probabilities, objectively ascertained.

38 No attack was made on the credibility of Mr Dunand’s evidence. His recollection of detail was hampered by the fact that the site diary (for the maintenance of which he had been responsible) was lost. It was not suggested that his evidence that it was, indeed, lost was false; or that he had played any part in its being “lost”. To the extent that Mr Dunand had a recollection of relevant events (I interpose that he was not a participant in the meeting of 30 August 1999), I accept him as a witness of truth.

39 The principal witness of fact on whom Feteni relied was Mr Paul Hickman. Mr Hickman was a director of Tatton Park and, on the evidence, was the person who was responsible for the performance of Tatton Park’s role as project manager (for Feteni) and “Architect” (see para [1] above).

40 I regret to say that I do not regard Mr Hickman as a witness on whose evidence I could generally rely, to the extent that it was in conflict with other evidence in the case. Firstly, to the extent that considerations of demeanour are of any assistance, I did not regard him as impressive.

41 Secondly, on at least two occasions, in relation to crucial matters, he flatly contradicted his own evidence. At T 317.5-.10, he agreed that, as at 25 August 1999, he had no complaints about Stuart’s performance; but at T 318.45 he “would have had concerns prior to 25th”; see also T 319.20, where he repeated the denial. Again, at T 343.45, he agreed that it would have been easy to prepare a “furniture programme” (ie, a programme for the delivery and installation of furniture); but at T 344.5, he asserted that it was not possible to do so.

42 Thirdly, his evidence on crucial points was marked by obfuscation (for example, as to his rejection, on no reasoned basis, of the tentative programme for completion sent to him by Mr Georgiadis on 25 August 1999: T 319.25-320.5).

43 Fourthly, on other crucial points, his evidence was simply incapable of belief (for example, his attempts to explain the circumstance that the only note that he had made of the meeting of 30 August 1999 contained no reference to the alleged “guarantee”: T 327.20-.40, 329.25-332.50).

44 Fifthly, on a number of occasions, his evidence was tainted by evasion and prevarication (for example, the evidence lastly referred to relating to his note of the meeting of 30 August 1999; and see also his evidence as to the ”builder’s critical path” and the “client’s critical path” at T 316.30-317.5), and his evidence as to the “furniture programme” requested by Stuart from him (or Feteni) (at T 340.40-344.40).

45 The matters to which I have referred, individually and together, made it very difficult for me to accept Mr Hickman’s evidence where it was in conflict with other evidence that I found, on its own merits, to be credible. However, a final – and compelling – reason for not accepting his evidence, insofar as it conflicts with (in particular) the evidence of Messrs Georgiadis and Stuart is that, on the crucial area of conflict – the events at the meeting of 30 August 1999 – I regard Mr Hickman’s account as inconsistent with the probabilities, objectively viewed. To anticipate, briefly, what I say in paras [66] to [70] below: I find it impossible to accept that an experienced builder in Mr Stuart’s position, supported by an experienced project manager with Mr Georgiadis’ knowledge, and cognisant of the circumstances that existed as at 30 August 1999, could have given the guarantee that Mr Hickman asserts was given.

46 Feteni also relied on the evidence of Mr Sam Papallo, a director and shareholder, and on the evidence of his late brother, Mr George Papallo. It was apparent that Mr Sam Papallo had no detailed recollection of events. Further, there were some difficulties in his evidence. For example, a crucial part of the case for CSA in proceedings 55010 of 2002 related to the alleged agreement between it and Feteni for CSA to have the management of the Coogee Sands Apartments (after the completion of the construction works) and to pay Feteni rent. The documentary evidence, consisting of minutes of meetings of Messrs Sam and George Papallo, being the directors of the two companies, suggested that this had occurred on 16 August 1999. However, his oral evidence was that “the meetings would have to have been given [sic] at a time after October 1999 and probably prior to the commencement of business in November 1999” (T 378.10-379.5; see also T 377.5-377.25). The minutes now relied upon were not kept in the regular minute books of Feteni and CSA, where one might expect them to be kept (see exhibits PX 9 and PX 10); instead, they were kept “in a file in my office” (T 379.10). Indeed, on Mr Sam Papallo’s evidence, the circumstances in which the alleged minutes now relied upon were brought into existence are unclear (T 379.20-381.20, noting that, at this last reference, Mr Sam Papallo denied that the minutes had been backdated). That having been said, Feteni’s solicitor, Mr John Anthony Snelgrove, gave unchallenged evidence as to the date of the meetings to which the minutes related. I therefore do not rely on the anomalies as to the minutes in forming my views as to Mr Sam Papallo’s credibility. I do, however, rely on his inconsistent oral evidence, to which I have referred.

47 Again, as with Mr Hickman, I do not accept Mr Sam Papallo’s account of the meeting of 30 August 1999, insofar as it asserts the giving of a guarantee, simply because I find this inconsistent with the probabilities objectively viewed.

48 Mr George Papallo died on 22 April 2003. His affidavit was tendered and admitted under s 63 of the Evidence Act. It is apparent from the text of the affidavit that Mr George Papallo had had regard to the affidavits of his brother before he swore his own affidavit. For that reason, and also having regard to the circumstances that I have referred to in relation to the evidence of Mr Hickman and Mr Sam Papallo, and to the (obvious) circumstance that Mr George Papallo’s evidence was not tested by cross-examination, I do not regard it as providing corroboration of the evidence of Mr Hickman and Mr Sam Papallo sufficient to cause me to accept their evidence where it differs from that of Mr Georgiadis and Mr Stuart.

Events leading up to 30 August 1999

49 The “Start Date” under the contract was extended to 8 September 1998 and, it appears, Feteni gave Stuart possession of the site on that date (although, for some unexplained reason, the preliminary period was extended up until 14 September 1998).

50 Work proceeded thereafter under the contract but was much affected by rain. An extension of time (EOT 1) for 52.5 days was granted on 2 February 1999. A further extension of time for 24 days was granted on 2 June 1999. A further extension of time for 10 days was granted on 11 August 1999. The effect of those extensions of time was that, Stuart and Tatton Park agreed, the date for practical completion was extended up until 11 October 1999.

51 Mr Hickman agreed that he had no concerns with Stuart’s performance up to 4 August 1999. (This was the date on which Stuart made the last extension of time claim referred to in the preceding paragraph, the effect of which was, as noted, to extend the date for practical completion until 11 October 1999.)

52 On 25 August 1989, Mr Georgiadis sent to Mr Hickman an “[u]pdated program”. His covering note stated (omitting formal parts):

“Updated program attached. Please note that the revised completion date is tentative at this stage as we are still awaiting information and decision from yourselves and as such the full extent of the delays can not yet be determined.

Alex (Stuart) has asked that I remind you to organise a meeting with the client for Monday and advise the time and location ASAP to discuss the program and outstanding issues.”

53 The programme showed an estimated completion date of 5 November 1999, with the critical activities being works in stair 1 and stair 3 and, thereafter, “Touch ups and Final Clean”.

54 Mr Hickman responded the same day, stating (omitting formal parts):

“On behalf of our client we confirm receipt of your latest programme dated 25.8.99 and advise that we do not accept the finish date as noted and place you on notice once again that any delays to your completion date of the 11.10.99 will incur substantial and consequential damages.

Any change to the 11.10.99 would require your justification within the terms of the contract. Please advise what these contractual justifications are. Your response is required by 2.00 pm tomorrow being Thursday 26.8.99.

Upon receipt of your response we shall confirm a meeting time on Monday.”

55 Mr Georgiadis replied, again on 25 August 1999, stating (omitting formal parts):

“As previously discussed, the full extent of the delays are not known at this stage as there are several items still to be finalised by yourselves as well as a number of recent variations which have to be considered. In the interim we have submitted the revised program to show you the anticipated delay.

We will be in a position to submit a thorough delay claim with the relevant backup when the full extent is known.

To that end we are currently liaising with all our subcontractors with the view to accelerating the program and reducing the impact on the completion date.

minimise the delays and prevent further delays

56 Mr Hickman agreed that:

(1) As at 26 August 1999, it was correct to say, as Mr Georgiadis had said in the document last referred to, that “there are several items still to be finalised by yourselves” (ie, by Tatton Park and/or Feteni).

(2) It was also correct to say that there were “a number of recent variations which have to be considered”. (I interpose that the evidence showed, as Mr Hickman agreed, that variation instructions continued to be given as late as December 1999, and January, February, March and April 2000, most of which he approved.)

57 Against that background, Mr Hickman’s out of hand rejection of the programme of 25 August 1999 is, frankly, incomprehensible. That view of Mr Hickman’s action is reinforced by his concession (T 319.30-35) that his only concern with the programme was its finish date. He could not recall how long he spent assessing the programme, nor could he recall if he had observed anything in its logic, its sequencing or its duration that would cause him to doubt that it was not a proper programme setting out an estimated end date to the best of Stuart’s ability having regard to the information that, as he acknowledged, Stuart required. However, he agreed that, had he formed a view that it was not a genuine estimate, he would have recorded that view in writing, and that there is no such recorded view (T 319.55-320.5). I have no doubt that, in fact, Mr Hickman did accept that the programme was a genuine attempt by Stuart to estimate the end date, and that he did not find any fault with it. I find his purported lack of recollection on this point to be no more than prevarication. It is worth noting that no attempt has been made to impeach the programme or to suggest, let alone demonstrate, that it was other than a genuine estimate prepared to the best of Mr Georgiadis’ ability, based on what was known to him as at 25 August 1999.

58 In truth, I think, Mr Hickman had abandoned any attempt to act in an objective or impartial manner by 25 August 1999, and was acting solely in his role as project manager for Feteni. I regard his actions, in relation to the programme of 25 August 1999 and thereafter, as inconsistent with the impartial performance by him, on behalf of Tatton Park, of the role of “Architect” under the contract.

59 The information that Stuart required included the dates for delivery of furniture: what was referred to in correspondence and evidence as a “furniture programme”. I will consider this evidence in detail when I deal with EOT 2, relating to furniture. It is sufficient, for present purposes, to note that on 13 August 1999 Mr Hickman had asked Mr Georgiadis to “advise as to the current expected date for completion of painting and laying of carpets to the units on a floor by floor basis, in order that George can programme delivery of furniture”, and that, on 3 September 1999, Mr Georgiadis replied, attaching a “carpet laying scheduled [sic]”, stating that the carpet layers “should be able to complete an average 12 rooms per week” and asking “that you do not commence furniture deliveries until 24 September”.

60 On 27 August 1999, Mr Georgiadis sent a further note to Mr Hickman. It stated (relevantly and omitting formal parts):

“Items for discussion on Monday:

…

As discussed, given the delays in decisions and recent variations, we now have to work on several fronts at the same time. Some of the problems with the critical trades are

[details were then given in relation to ceilings, tiling, renderer, shower screens, handrails, lifts and fitout.]

In order to minimise the impact of the delay we are currently seeking additional men from the important trades at a time when resources are scarce in order to determine what is achievable. We have been given undertakings by the ceiling rendering and tiling trades to boost their crews in an attempt to compress the program as much as possible.“

61 Mr Hickman agreed that this was, in essence, an agenda for the meeting that was held on Monday 30 August 1999.

The meeting of 30 August 1999

62 There is a substantial discrepancy in the evidence as to some of the things that were said at the meeting. For the reasons that I have given, I think that the account given by Messrs Georgiadis and Stuart is substantially accurate.

63 In their affidavits, Messrs Sam and George Papallo and Hickman all had Mr George Papallo saying words to the effect of:

“I am now taking my Feteni hat off and putting on my Coogee Sands Apartment hat on [sic], as the operator … When can the operator get occupation of the building? … There are many things to get organised before the opening and we need to plan … .”

64 Each of those gentlemen has Mr Stuart replying, in substance:

“I guarantee 20th October.”

65 In cross-examination, Mr Hickman said that Mr George Papallo did not refer to putting on a “Coogee Sands” or “Coogee Sands Apartments” hat, but merely an “operator’s” hat. This discrepancy, of itself, does not seem to me to be significant. However, the real difficulty in accepting the account given by Messrs Sam and George Papallo and Hickman is the sheer improbability that Mr Stuart would have given an unconditional guarantee.

66 As at 30 August 1999, Mr Stuart was not closely involved in the project. He relied on Mr Georgiadis, in whom he reposed complete confidence. Mr Georgiadis had briefed Mr Stuart prior to the meeting. Mr Stuart knew that Mr Georgiadis had prepared a programme showing, in effect, 5 November 1999 as the earliest completion date assuming that (as at 25 August 1999) all outstanding requests for information were satisfied and that there were no further variations directed that would have an adverse impact on the date for practical completion. Mr Stuart knew, as at 30 August 1999, that the requests for information had not been satisfied. It must have been apparent to him, as an experienced and capable builder (as it was apparent to Mr Hickman, as an experienced and capable project manager), that even the date of 5 November 1999 was likely to “blow out”.

67 Further, the project had been very severely affected by wet weather. As at 30 August 1999, extensions of time totalling 86.5 days had been sought and granted for wet weather.

68 If Messrs Sam and George Papallo and Hickman are to be believed, Mr Stuart:

(1) would have given a guaranteed completion date about 2 weeks earlier than his own project manager had forecast was achievable;

(2) would have given that guarantee knowing that certain crucial assumptions on which the forecast was based had not, 5 days after the forecast was made, been satisfied; and

69 As to the third point: although, obviously enough, the wet weather would affect either only, or most severely, the outside trades, Mr Hickman agreed that, as at 30 August 1999, there was still outside work to be done. In other words, a recurrence of the wet weather would have had a direct impact on the ability of Stuart to achieve completion by any forecast date.

70 I do not accept that Mr Stuart would have acted, and spoken, in the way alleged by Messrs Sam and George Papallo and Hickman. I do not accept their evidence that Mr Stuart gave an unconditional guarantee of completion. Nor, in the face of Messrs Stuart’s and Georgiadis’ denials, do I accept the evidence of Messrs Sam and George Papallo and Hickman that Mr George Papallo referred in terms to changing his hat, although I do find that there was reference to the position of (whoever might be) the operator: see paras [77] to [80] below.

71 There are other difficulties with Mr Sam Papallo’s and Mr Hickman’s account of the meeting.

72 One is that, on 22 June 2000, Mr George Papallo wrote to Stuart disputing an amount claimed by Stuart under the contract and asserting a number of items of damages claimed by CSA. Mr George Papallo referred to “advice that practical completion would occur on 11.10.99”. Subsequently, he made it plain that this was a reference to the meeting of 30 August 1999. He referred to “Mr Alex Stuart making deceptive and misleading statements by way of absolute assurances that practical completion would occur on the 11th October 1999”. It has never been suggested that Mr Alex Stuart gave a “guarantee” or “absolute assurance” of completion on any occasion other than at the meeting of 30 August 1999, and it must have been to this meeting that Mr George Papallo was referring. But neither Mr George Papallo nor anyone else has ever suggested in evidence that such an assurance was given in those terms at that meeting.

73 Mr Hickman claimed to have no knowledge of that letter. He said that, had he been asked to comment on it, he would have corrected the date to 20 October 1999 (thus confirming that, in his understanding, this was the only date that Mr Stuart had represented, or guaranteed, as a date for completion). The evidence showed that on 13 June 2000, Mr George Papallo had sent a letter in almost identical terms to Mr Hickman (there were immaterial changes to the first paragraph, and to what was the last paragraph of the letter to Mr Georgiadis). The letter to Mr Hickman had added to it:

“As you are in full command of the building contract issues we herby [sic] instruct you, to now, also handle this separate claim against Stuart Pty Ltd and Mr Alex Stuart.”

74 Mr Hickman did not suggest that he had sought to correct the reference to 11 October 1999, and it is plain, from the terms of the letter that was sent to Mr Georgiadis 9 days after Mr George Papallo wrote to Mr Hickman, that no correction was made. The inconsistency between his act (or omission) in October 1999, and his evidence in March 2004, is irreconcilable.

75 Another matter that makes it very difficult for me to accept Mr Hickman’s account is that, as I have mentioned in para [43] above, Mr Hickman’s note of the meeting contained no reference to the alleged guarantee, although on any view the guarantee (had it been given) was the most material thing said at the meeting. Mr Hickman’s attempts to explain this could most kindly be described as unconvincing.

76 The correspondence that passed between Stuart and Tatton Park after the meeting is inconsistent with the giving of any guarantee:

(1) On 1 September 1999, Mr Georgiadis wrote to Mr Hickman referring to “our meeting, whereby the client request[ed] that we endeavor [sic] to have the works completed prior to the 20th October for a large booking they wish to take”. The letter set out “the essential items for completion” (including, as the fifth item, “[c]ompletion of as many units as possible”). It pointed out “that the remainder of the works will not be complete until early November”. It said that, on a number of assumptions, “we will be able to complete the abovementioned items by 20 October”. It is crystal clear from that letter that, firstly, what was being discussed was not practical completion of the works (ie, in their entirety), but completion in fact of sufficient rooms and other works to enable a large booking to be honoured. It is also crystal clear that the works would continue, and that practical completion would not occur until, after 20 October 1999.

(2) Tatton Park’s response was to insist on 11 September 1999 as the date for practical completion. That response is incomprehensible if, as Mr Hickman (who wrote the letter) now says, a guarantee of 20 October 1999 had been given (and by implication accepted) at the meeting. Otherwise, the most notable feature of Mr Hickman’s response was that it failed to mention any “guarantee” that had allegedly been given.

(3) On 8 October 1999, Mr Hickman wrote to Mr Georgiadis to advise that “all rooms to the southern façade will not be ready until approximately 6 days after” 20 October 1999, and stating that this was “contrary to your previous advice in the meeting with Alex and our client”. That letter referred also to “[t]he agreement you made at our previous meeting … with our client but also with the manager of the Hotel …”.

77 I find that, at the meeting of 30 August 1999, Mr George Papallo said words to the effect:

“Coogee Sands have [sic] taken a large booking for 20 October 1999. The works must be completed by then. Otherwise, we might as well call our solicitors now.”

78 I find that Mr Georgiadis replied in words to the following effect:

“We cannot guarantee that the whole of the works will be completed by this date. We will do the best we can. We will try and accelerate our programme so that as many of the rooms as possible are finished by then. We are presently waiting on further information and a number of clarifications that are holding it up.”

79 I find that there was discussion of the outstanding requests for information, and of the works that needed to be completed, substantially in accordance with Mr Georgiadis’ note of 27 August 1999 referred to in para [60] above. I find that either Mr Georgiadis or Mr Stuart said words to the following effect:

“You will need to attend to the matters we have discussed today if there is any hope of the apartments operating from 20 October.”

80 I do not find that the reference to “Coogee Sands” was, specifically, a reference to CSA. On the evidence, the motel business formerly operated by Feteni at the site was known as the “Coogee Sands Motor Inn”, and it was understood that the serviced apartment operation would be known by the similar name “Coogee Sands Apartments”. It is, however, clearly enough an indication that the operator of that business (whoever that may have been, or was understood to be) had taken a large booking for 20 October 1999.

Extension of time claims: general matters

81 The remaining matters of history that are relevant to the project are best considered by reference to the three controversial extension of time claims.

82 Consideration of those three extension of time claims requires consideration not only of the factual circumstances relevant to each but also consideration of the relevant contractual provisions. Specifically, as to the latter aspect, it is necessary to give consideration to the extent to which Stuart complied with the contractual provisions, as to notification and other matters, in respect of each extension of time claim.

83 Feteni addressed this subject in great detail in its written submissions. Stuart replied to those written submissions. One of the contractual issues raised by Feteni was whether Stuart had complied with clause 9.06 of the contract. As will be seen, Feteni advanced no affirmative case on this issue, in relation to any of the extension of time claims. It contented itself with the submission that there was no evidence that Stuart had taken the necessary steps. The question of compliance with clause 9.06 was not an issue raised on the pleadings, nor was it referred to specifically (or even by implication) in the agreed statement of issues. However, Stuart did not take this point, but made a submission to the effect that it had complied with the requirements of clause 9.06. It may be that Stuart’s attitude reflects the fact that, in terms, clause 9.06 is a condition precedent to an extension of time. In any event, since Stuart has not taken the point, I feel constrained to deal with it: although in doing so, I bear in mind that to the extent that the evidence is scant, that may well be explained by the fact that the pleadings did not direct Stuart’s attention to the issue.

EOT 2: furniture delays

The facts

84 The furniture for the apartments was manufactured by a company known as Bindi Industries Pty Ltd (“Bindi”). It included console units for the bedrooms and for the living rooms (the latter units were intended to include a television set). Feteni directed that the living room consoles be “hard wired”: ie, that live power be connected to switched outlets mounted inside the consoles: facsimile transmission from Mr Hickman to Mr Georgiadis, dated 1 October 1999. Originally, power for the television units was to be taken from wall mounted switches and it was only the bedroom consoles that were to be hard wired. Clearly enough, the electrical wiring and fit out could not be completed until the furniture was delivered and installed.

85 Mr Georgiadis said that Bindi was not the original furniture supplier and that it was selected, as the result of a change, in about mid 1999. He was not cross-examined on this, nor was it contradicted. It is not clear whether the change in relation to wiring was connected with the change to Bindi as furniture supplier.

86 The purchase order for the furniture, from Pacific Hotel Design (who claimed to be “acting as agents for the project manager and owners of the Coogee Sands Apartment [sic]”) to Bindi, was dated 18 June 1999. It noted that installation was to be carried out “no later than 2 days after the carpet installation dates as shown on the builders [sic] bar chart annexed hereto or 2 days from any changes to the carpet schedule as shall be notified …”. Unfortunately, the bar chart was not attached to the copy of the purchase order that was tendered.

87 Bindi apparently required a bank guarantee for about 20% of the purchase price. Accordingly, on 21 June 1999, Mr Hickman passed on the purchase order to Feteni’s financier, Suncorp Metway Ltd (“Metway”). In that letter he stated, among other things:

“Please note that the Bank Guarantee is required urgently as the installation of the above items [ie, the furniture to be manufactured and delivered by Bindi] are [sic] directly linked with the critical path of the project.”

88 At first, Mr Hickman sought to explain this paragraph as being written “[f]rom my client’s point of view”: T 307.10. However, he conceded, the delivery of furniture was “critical for the project”, “critical for rooms to open”, “critical for handover”, and “critical for Stuarts”: T 307.20-.35.

89 At one stage in his evidence, Mr Hickman sought to assert that the furniture was indeed ready before deliveries commenced on 11 October 1999 and “it was sitting in the warehouse”: T 343.35. That answer was in no way responsive to the question, and I do not think that Mr Hickman could have thought it was. Further, the assertion is not something found in his (or any other witness’s) evidence-in-chief, and is not supported by any contemporaneous documentation. I do not accept it. It is likely, although the evidence does not enable me so to conclude, that the real reason that Mr Hickman did not furnish a furniture programme was that he did not, until relatively late in the piece, know when it was that the furniture would be ready for delivery.

90 Generally, the sequence of works was that the rooms would be painted and carpeted, the furniture would be supplied and installed, all wiring would be carried out and then any necessary touch ups to the paintwork would be completed.

91 As I have noted, on 13 August 1999 Mr Hickman requested Stuart to advise the date for completion of painting and carpeting. Mr Georgiadis’ updated programme, sent to Mr Hickman on 25 August 1999, indicated “early start” and “early finish” dates for these activities on the various levels. Thereafter, and again as I have already noted, Mr Georgiadis sent a copy of the proposed carpet laying schedule to Mr Hickman on 3 September 1999.

92 On 7 September 1999, Mr Georgiadis sent a facsimile transmission to Mr Hickman that, among other things, requested a copy of Mr Hickman’s furniture programme.

93 At a meeting held on 23 September 1999, it was noted that Mr Hickman was “to issue a furniture program ASAP”.

94 Furniture installation did not commence on 24 September 1999, in accordance with the request (which was at least implied) in Mr Georgiadis’ facsimile transmission of 3 September 1999. On 28 September 1999, Mr Georgiadis spoke to Mr Hickman, asking when the bedroom furniture would be delivered. Mr Hickman said it would not be ready until 5 October 1999. Mr Georgiadis confirmed this in a facsimile transmission to Mr Hickman on the same day. Mr Hickman did not deny Mr Georgiadis’ account of the conversation.

95 At a meeting held on 30 September 1999, it was again confirmed that Mr Hickman was “to issue furniture programme ASAP“.

96 On 1 October 1999, Mr Hickman sent Mr Georgiadis a facsimile transmission advising that delivery of furniture for levels 5 and 6 would commence on 6 October 1999, and confirming the instruction to hard wire the television consoles.

97 No furniture was delivered on 6 October 1999. On that day, Mr Georgiadis sent a facsimile transmission to Mr Hickman noting that “[w]e have asked on several occasions for an installation program but have yet to receive one”, noting that electrical fit out was being delayed by the delay in furniture delivery, and asking “[c]an you please issue us a program tomorrow so that we can coordinate this work”.

98 Mr Georgiadis says that he had a brief discussion with Mr Hickman on 7 October 1999, in which he said that Stuart were waiting for the furniture and its installation programme. Mr Georgiadis says that he indicated that if the furniture was delivered the next day, then some rooms could be handed over by 20 October 1999 as planned, but that other rooms “will not be handed over because they are being held up by other variations”. Mr Hickman denies this conversation. However, I find that it took place, in substantially the terms alleged by Mr Georgiadis. It was confirmed, in part, by Mr Georgiadis, in his facsimile transmission of 8 October 1999, and, in part, by Mr Hickman in his memorandum of the same date. Between the two documents, essentially the entirety of the matters to which Mr Georgiadis adverts is covered. I find it impossible to accept Mr Hickman’s denial, if for no other reason than that his memorandum of 8 October 1999 substantially undermines it.

99 On 8 October 1999, Mr Georgiadis sent a further facsimile transmission to Mr Hickman referring to repeated requests for, and to the failure on Mr Hickman’s part to furnish, a “programme for the furniture installation for the project”. It also noted that deliveries had been postponed for a third time until 7 October 1999, but that nothing had been delivered or installed. It pointed out that there was over 2 weeks’ work in wiring, so that the work could not be completed by 20 October 1999.

100 Mr Hickman’s response was to seek to divert blame from Feteni or Tatton Park to Stuart. On 8 October 1999, he sent the memorandum to Mr Georgiadis that I have referred to in part in para [76(3)] above. Relevantly for present purposes, it stated:

“Your request for a furniture installation programme is for want of a better word, a snow [sic] screen as no rooms appear to be in any state to accept the same [sic]. Furniture deliveries are now scheduled for Monday 11.10.99 and as such we expect all rooms you wish to place the furniture in to be in a fit and proper state to accept same.”

101 It is notable that Mr Hickman did not, in that memorandum, suggest that the furniture was in fact ready to be delivered, or that delivery was being held up simply because of the state of the rooms. Nor did Mr Hickman say so in his affidavit evidence.

102 On 11 October 1999, Mr Georgiadis sent a facsimile transmission to Mr Hickman, in response to the memorandum of 8 October 1999. He noted that “[t]he rooms in question have not changed for the past 3 weeks, they were painted and carpeted promptly to facilitate the installation”. He said that Mr Hickman “certainly did not offer this excuse the first 3 times [he] missed [his] installation date”. It does not appear that Mr Hickman responded to this transmission at the time, nor did he refer to it in his evidence. I think that his failure to rebut it at the time (particularly given his habit of commenting in writing on matters great and small in other contexts) is significant. I cannot believe that Mr Hickman would have let the accusation go past had he thought that there was a worthwhile response. The clear inference, in my view, is that Mr Hickman realised that he had been caught out in a foolish excuse, and decided to let matters lie.

103 The position taken by Mr Georgiadis is substantially confirmed by an invoice from Stuart’s carpet subcontractor, dated 27 September 1999, showing that a substantial quantity of carpet had been supplied and delivered. It is also supported by an independent assessment of Stuart’s progress claim No. 13, dated 30 September 1999, showing that the “floor coverings” trade work was 83% complete. (The same assessment showed that the works overall were 87% complete.)

104 Deliveries of furniture did not commence until 11 October 1999. On that day, a number of “Bedside Tables – Standard with false Drawer Front” were installed into a room on level 2, and into a number of rooms on levels 3, 4, 5, 6 and 7. The following day, Bindi wrote to Mr Sam Papallo confirming that delivery and stating, among other things:

Can you please advise when the lift will be ready, we cannot carry the TV cabinets up the stairs, they are too heavy. There were three of us at yesterdays [sic] delivery and towards the end we could not physically carry a bedside cabinet to levels 6 & 7.”

105 Mr Georgiadis says that on each floor rooms 13 and 14, being the rooms closest to the stairs, were used as storerooms. Mr Hickman says that there were other rooms used for the same purpose and that, in addition, Stuart had material and equipment “stored in these rooms”. There is no evidence that, apart from rooms 13 and 14, the presence of either building material, carpet, material or equipment hindered the delivery and installation of furniture.

106 On 13 October 1999, Mr Hickman wrote to Mr Stuart. That letter asserted, among other things, that “the building is still not in a fit and proper condition to receive furniture”. The assertion is a little difficult to understand, given that some 36 bedside tables had been delivered the previous day. Further, it is not supported by Bindi’s letter, which refers only to an alleged inability to carry the television cabinets up the stairs.

107 Mr Hickman also said:

“We have been requesting for more than 6 weeks when [sic] the building will be in a satisfactory condition to receive furniture, to date we have received only deceptive answers and requests. It is evident that, even at this late date as previously advised the building is not in a fit and proper condition to accept furniture.”

108 There is no credible evidence that Bindi was in a position to deliver any furniture prior to 11 October 1999. (I interpose that, thereafter, no further delivery occurred until either 26 October or 1 November 1999: see para [110] below.) Nor is there any support in the correspondence for the assertion of more than six weeks’ requests for information as to “when the building will be in a satisfactory condition to receive furniture”. The only requests for information that had been made were the requests by Mr Georgiadis for a “furniture programme”; ie, for information as to when, on and after 25 September, furniture would be delivered. They, of course, were the requests that Mr Hickman chose to ignore, both at the time and in his evidence-in-chief. The oral evidence that he gave on that topic was (viewed in the most favourable light) confused; and in reality, I think, prevaricating: see T 340.50-344.40. It should be noted that Mr Hickman conceded that Stuart needed the programme for the completion of its works (T 341.50, .55-342.5) and that he agreed to provide it in the meetings to which I have already referred (T 342.5). When asked why he did not give the furniture programme, he said “I cannot recall”: T 342.40. He said that he did not hand it over because “Stuarts weren’t ready”: T 343.30. In reality, as his answers at T 343.45-55 showed, there was no furniture programme in existence that could have been handed over.

109 Mr Georgiadis says that, between 13 and 20 October 1999, he and Mr Stuart had a discussion with Mr Hickman relating (among other things) to the delivery of furniture. He says that Mr Hickman promised that the television units would be delivered and installed by 20 October 1999. Mr Stuart does not give evidence of any such conversation. Mr Hickman denies that it occurred. It was not confirmed in any contemporaneous document. Notwithstanding my general preference for the evidence of Mr Georgiadis where it conflicts with that of Mr Hickman, I do not find that the conversation took place. However, I have no doubt that Mr Georgiadis frequently asked Mr Hickman when it was that the balance of the furniture would be delivered.

110 Mr Georgiadis says that there was no delivery of furniture after 11 October until 1 November. He refers to a transport invoice and says that even if the furniture that was referred to in it was delivered on 26 October 1999 (as the invoice stated), it was not installed until 1 November. Mr Hickman does not deny this evidence and I accept it. Mr Georgiadis also says that, once the units were delivered, they had to be modified so that they could accept wiring. Mr Hickman does not deny this but says, in substance, that until he read Mr Georgiadis’ affidavit he was not aware of this fact.

111 Mr Georgiadis had a discussion with Mr Hickman on 2 November 1999, in which he said, among other things, that completion of the building would be delayed by a further one to two weeks because of the variations and in which he referred to the commencement of delivery of television consoles on 1 November 1999. Mr Hickman denies that this conversation took place. However, on 3 November 1999, Mr Hickman sent a memorandum to Mr Georgiadis referring to a meeting on 2 November and purporting to confirm a number of matters that had been agreed. There was further correspondence between Messrs Georgiadis and Hickman on that day. Significantly, Mr Georgiadis referred to delays because the television consoles had been promised by 20 October but were not delivered until 1 November and were still to be installed, and referred also to the late supply of bedside consoles. Mr Hickman responded to that and noted that “[m]ay [sic] of your points are incorrect and not acceptable” and listing “his comments to some of the items”. Mr Hickman did not see fit to comment on the matters to which I have referred. In my view, particularly having regard to the nitpicking nature of the comments that he did make, that is a strong indication of the substantial accuracy of at least that part of Mr Georgiadis’ message.

112 On 13 November 1999, about 40 rooms were completed and, according to Mr Georgiadis, were ready to be handed over. Mr Hickman does not dispute this. There is a dispute as to how many rooms were in fact taken by Feteni.

113 On 17 November 1999, Mr Georgiadis asked Mr Hickman when the remaining furniture would be delivered and what was to happen in relation to consoles that Bindi had installed in the wrong rooms. Mr Hickman replied that the remaining furniture would be delivered on 18 November 1999 and that a variation, relating to the wrongly installed consoles, was “sent to site 18.11.99”. A further delivery was made but, it appears, there was still further furniture required. Mr Georgiadis says, and Mr Hickman does not dispute, that there was a further delivery in mid December 1999, and that the final delivery took place on 23 December 1999.

114 There is a volume of evidence relating to work that, according to Mr Hickman, was required to be done to bring rooms to a state for handover. It is unnecessary to consider that evidence in detail given that it does not seem to be in dispute that, following delivery and installation of furniture and completion of wiring, touch up and cleaning works remained to be done. Mr Georgiadis made the point, in a facsimile transmission to Mr Hickman of 26 November 1999, that the majority of the alleged defects “were rectified with [sic] half an hour”. Mr Georgiadis also made the point that a number of the alleged defects were in fact variations. Mr Hickman did not at the time challenge those propositions; nor does he in his affidavit evidence.

115 On 2 December 1999, Mr Georgiadis wrote to Mr Hickman claiming “an extension of time of 5 weeks due to the late supply of furniture” and referring to the delayed delivery of consoles. He stated that “this delay is concurrent with other client delays as previously notified” and that there were “further delays”. The nature of those further delays was amplified in correspondence dated 14 December 1999.

116 On 14 December 1999, Mr Hickman rejected the claim for an extension of time “as the supply and installation [of furniture] has no bearing on Stuarts [sic] handing over the building or on Practical Completion”. Mr Hickman did not seek to reconcile this ground of rejection with his assertion to Metway, and his concession in cross-examination, that the supply and installation of furniture was critical to the completion of the project (see paras [87] and [88] above).

The expert evidence

117 Stuart and Feteni each relied on expert evidence. Stuart called Mr Gerard King and Feteni called Mr David Plaister. I directed Messrs King and Plaister to confer. They produced an agreed statement. In relation to EOT 2, they stated:

“The experts agree that a reasonable extension of time resulting from furniture supply is 27 working days.”

118 Mr Simpkins SC, who appeared with Mr Kidd of Counsel for Feteni, submitted that I could not rely on the agreement of the experts because the relevant assumptions and methodology were not proved. I do not accept this submission. The assumptions and methodologies of the experts are set out in their reports. To the extent that any remaining assumptions were unresolved, the record of their agreement states this. Where (as in relation to EOT 2) no assumption is stated, then in my view the proper inference to draw is that the experts concluded, as a necessary part of their agreement that Stuart was entitled to a reasonable extension of time, that (for example) the effect of the delays relating to the supply of furniture was that Stuart was delayed in the completion of the works. I do not accept that it is incumbent upon them to demonstrate the reasoning process by which they reached this agreement.

119 Mr Simpkins further submitted that the agreement of the experts could not be taken to overcome all obstacles: for example, the relevant requirements, as to notice and other matters, of the contract. I do accept this submission. However, in my view, the effect of the experts’ agreement is that, if the relevant contractual conditions are satisfied, then Stuart is entitled to an extension of time for the agreed number of days.

120 In relation to other delays (where the experts specify their assumptions), then the effect of their agreement is, in my view, that where the relevant contractual conditions are satisfied, and if (and only if) the specified assumptions are made good, then Stuart is entitled to an extension of time of the agreed number of days.

121 Although evidence-in-chief was led from both Mr King and Mr Plaister, to supplement and explain their agreed position, I do not regard that oral evidence as inconsistent with the conclusions that I have just set out.

304 In fairness to Mr Edmiston, the drawings are not particularly clear. He said, and it appears to be the case, that other drawings that were made available to him did not show any discrepancy in levels between the ground floor (at the Dolphin Street frontage) and the footpath.

305 Mr Edmiston understood (as was the case) that there was no work proposed to the ground floor slab or to the footpath. He must therefore have understood that, if the works were carried out in accordance with the drawings that were the subject of the certification letter, any discrepancy in levels between the ground floor and the footpath at the Dolphin Street entrance would be unaffected by those works.

306 Mr Edmiston did not visit the site before preparing his certification letter: it appears that he worked off the drawings. He was therefore unaware of what was, on the evidence, a substantial step down at the entrance of about 150 mm. Mr Edmiston says that, when he did visit the site, hoardings were erected on the Dolphin Street frontage which effectively concealed the step down.

307 It is correct to say, as Mr Sirtes of Counsel who appeared for Edmiston Associates submitted, that there is no evidence to suggest that the certification letter was in any way relevant to Stuart’s decision to enter into the contract or to the terms that it negotiated. But that is not the basis upon which Stuart brings its claim against Edmiston Associates.

308 In substance, Stuart’s claim against Edmiston Associates is put two ways:

(1) Negligence in the design of the works in a manner that did not comply with the relevant provisions of the conditions of consent, the BCA and AS 1428.1; or

309 The first way in which Stuart puts its case cannot be sustained. Edmiston Associates did not prepare the design that was shown in the preliminary documents. That was done by H+B. Edmiston Associates did not hold itself out as having designed the works. Edmiston Associates did not warrant, or make any representation as to, the sufficiency of the design in general terms: the only representation that has been pleaded and proved is that set out in the certification letter.

310 In considering the extent of Edmiston Associates’ undertaking, it is necessary to bear in mind that, although Edmiston Associates was named in the contract as the Architect, the contract also provided – and Stuart must be taken to have known at all material times - that in fact Tatton Park would perform the duties of the architect under the contract.

311 The case that is pleaded against Edmiston Associates, based on the certification letter, is itself put in two ways. Firstly, it is said that:

(1) Edmiston Associates held itself out as possessing the skill and competence necessary to … certify that the design of the works prepared by others complied with the relevant requirements.

(2) It was reasonably foreseeable that Stuart would rely on such certification prepared by Edmiston Associates.

(3) Negligent certification, as to the relevant requirements, was likely to cause economic loss of the kind in fact said to have been suffered.

(4) Accordingly, Edmiston Associates owed Stuart a duty of care.

312 Secondly, the case is put as a representation case within s 52 of the Trade Practices Act, although in this case too it is alleged that Edmiston Associates owed Stuart a duty to take reasonable care in making representations concerning the design of the works.

313 In this formulation, the representation is also particularised as having been made by the certification letter.

314 It is not pleaded that Edmiston Associates in effect recertified in August 1998. That is to say, there is no pleaded case that, through the events that I have outlined in paras [229] to [233] above, Edmiston Associates made a representation to Stuart in August 1998, on the terms of the certification letter.

315 In this, the pleaded case against Edmiston Associates may be compared with the pleaded case against Tatton Park. In essence, Stuart says that Tatton Park, by its memorandum to Stuart of 13 August 1998 (see para [232] above), represented to Stuart that Edmiston Associates’ design of the works complied with the relevant requirements.

316 I leave aside, for the moment, the obvious deficiencies in this pleading – for example, the certification letter was limited to the drawings listed in it; those drawings had been prepared by H+B; and Tatton Park’s memorandum referred to (although it did not in fact send) an “Architectural certificate …” – presumably in answer to the request to “obtain certification from the Architect … that the documentation has been revised to fully comply with … the relevant requirements”. What is of present significance is that this is the only pleading of a representation made by any defendant in August 1988.

317 I therefore conclude that Stuart’s case against Edmiston Associates should be decided as it is pleaded – namely, based on Edmiston Associates’ act in sending the certification letter to Mr Britt of Stuart on 2 June 1988.

318 So regarded, Stuart’s case against Edmiston Associates must fail. There is no evidence of reliance. I accept that, in the ordinary way, where certification is requested, it may be presumed that it is requested so that it can be used, or relied upon, in some way. The pleaded case is that Stuart relied upon the certification letter in entering into the contract and, thereafter, constructing the works in accordance with the design drawings prepared by others and certified by Edmiston Associates. But Mr Britt has not been called to say why it was that he wanted the letter, nor has his absence been explained. Indeed, there is no evidence from Stuart that it wanted the certification letter, nor did Mr George Papallo give evidence of a conversation with Mr Britt (or anyone else) wherein a request was made for the certification letter. (That having been said, I think it is highly unlikely that Mr George Papallo would have asked Mr Edmiston to prepare the certification letter unless, as he said, a request for it had been made.)

319 There is no evidence to suggest that the construction of disabled access at the Dolphin Street entrance, either as originally proposed by Mr Edmiston or as required by Mr George Papallo, would have cost significantly more than constructing what was shown on the drawings (access from the rear of the reception area into the car park). There is no basis upon which I can conclude that Stuart would not have entered into the contract, on the terms that it contained, if it did not have the certification letter.

320 Further, as Stuart must have known, the contract contained extensive obligations requiring it to revise the Preliminary Documentation and to produce Final Documentation that complied with all the relevant requirements. It also contained extensive provisions relating to responsibility for the documentation:

(1) Clause 1.03A.1.6.2 (clause 1.03A was inserted by special condition 2) – Stuart acknowledged that Feteni and (among others) its consultants (I interpose that Edmiston Associates was one of those consultants) did not warrant the accuracy, completeness or applicability of the preliminary documents; and that Feteni was relying on Stuart to assess, interpret and propound the Final Documents.

(2) Clause 1.03A.1.6.3 – Stuart accepted responsibility for all errors and omissions in the Final Documents.

(3) Clause 1.03A.1.3.4 – Stuart acknowledged that the preliminary documents were provided without warranty as to their correctness, completeness or accuracy, and that it was Stuart’s responsibility to check and verify them and determine their applicability.

(4) Stuart’s obligations under clause 1.03.03 as amended by special condition 3.3 (see para [18] above).

(5) Clause 1.03.04 added by special condition 4 – Stuart’s obligation to refer to the consultants for completion of the Final Documents.

321 Given that the work of revision (intended, among other things, to ensure compliance) was to be made after award of the contract, and to take as its starting point documents in respect of which Feteni and its consultants (including Edmiston Associates) were acknowledged to have no responsibility, it is impossible to conclude, in the absence of acceptable evidence, that Stuart relied on the certification letter in deciding to enter into the contract.

322 Far less, given all those circumstances, is it possible to conclude that Stuart relied upon the fact that the certification letter had been given on 2 June 1998 in deciding to construct in accordance with (among others) the drawings listed in that letter. In this context, the insignificance of the certification letter is confirmed by the circumstance that, when Mr Georgiadis sent his request for certification on 10 August 1998, he was not even aware of the existence of the certification letter. One would have thought that, if it had already assumed the importance which Stuart now seeks to attribute to it, it might have been drawn to his attention.

323 I would be prepared to assume, contrary to the submission for Edmiston Associates, that it owed a duty of care to Stuart in preparing the certification letter. However, I do not find that Stuart relied upon it – more accurately, upon the fact that it had been sent to Stuart on 2 June 1998 – in deciding either to enter into the contract or, thereafter, to construct the works in the way that it did.

324 If I am wrong in my view that Stuart’s case as pleaded does not embrace the events of August 1998 in so far as they relate to the certification letter, then it is necessary to consider whether Edmiston Associates then made any fresh representation to Stuart on the terms of the certification letter. Alternatively, it would be necessary to consider whether Edmiston Associates represented to Stuart that the certification letter showed “that the documentation has been revised to fully comply with Council conditions, the BCA and the Trevor Howse Report”.

325 It may be arguable that, by the events that I have already described, Mr Edmiston through Mr Hickman represented to Mr Georgiadis that the certification letter was a “certification” as called for by Mr Georgiadis’ request of 10 August 1998. However, I do not think that, considered objectively, the certification letter can be so regarded.

326 It is clear that, in August 1998, Stuart was undertaking the process of revising the Preliminary Documents into the Final Documents. Mr Georgiadis said that the drawings were being “finalised” in August 1998, and that he was “seeking to ensure the changes did not impact on the council requirements”: T 118.40. He did not understand, from the certification letter, that Mr Edmiston was then engaged in the process of revising documents: T 118.55, 119.25. He “knew”, or “believed”, that the documents “were being fully revised by Mr Edmiston to produce a final set of documents”: T 119.30-.35. However, there is no evidence of any fact that would support this belief; and the evidence shows that Mr Edmiston was not, as at June or August 1998, engaged in any such process of revision.

327 The request made by Mr Georgiadis on 10 August 1998 corresponded exactly with the intention stated by him in evidence: he wanted to be satisfied that the documents as revised (ie, from their precontractual and contractual states) would meet the relevant requirements. It must have been apparent to him, had he thought about the matter, that a letter dated 2 June 1998 referring to revision of documents that had been prepared well before the contract was entered into could not satisfy his request.

328 Assuming, without deciding, that some duty of care rested upon Edmiston Associates in favour of Stuart in the circumstances that existed around 10 to 13 August 1998, and assuming, without deciding, that, in those circumstances, Edmiston Associates made some representation to Stuart as described in para [314] above, I find that Stuart could not, and therefore did not, reasonably rely on any representation that was then made on the terms of the certification letter. In other words, even if there were reliance in fact (a matter upon which the evidence is silent), there could be no reasonable reliance.

329 In this context also, I do not think that it is appropriate to infer reliance in fact. That is because, as I have said, I do not see how someone in Mr Georgiadis’ position could have regarded the production, or reproduction, of the certification letter as responsive to his request of 10 August 1998, particularly given his explanation of that request.

330 If, therefore, contrary to my analysis, Stuart’s case does extend to a case in negligence or under s 52 based on the relevant events of August 1998, that case must fail.

331 In case I am incorrect in the approach that I have taken on the question of liability, I will look briefly at the question of damages. In brief, I would conclude in any event that Stuart’s case against Edmiston Associates failed because Stuart suffered no loss as a result of any breach that may have occurred of any duty that may have been pleaded, or of s 52.

332 I have already concluded that disabled access from Dolphin Street in accordance with Mr Edmiston’s initial (November 1999) proposal would have satisfied Stuart’s obligation under the contract. There is no basis on which I could conclude that the construction of such access would have cost any more than the construction of the insufficient access at the rear of the foyer from the car park. Further, on the evidence, that work could have been undertaken at any time without delaying practical completion. Indeed, on the evidence, even if it had been undertaken after 12 November 1999 (when the problem was pointed out by Mr Hines of Randwick Council), it could have been constructed in a time ranging (on the evidence) from 2 to 5 working days. In other words, even at that late stage, disabled access sufficient to comply with the contract could have been constructed before the issues relating to survey and smoke hazard management were dealt with.

333 On no basis, therefore, can it be concluded that Stuart suffered loss unless it is legitimate to take into account not just the work initially proposed by Mr Edmiston but the more extensive work required by Mr George Papallo.

The claim against Tatton Park

334 Stuart asserts that, by sending the memorandum of 13 August 1998 referred to in connection with EOT 4 (see para [232] above), Tatton Park either made negligent misstatements or engaged in misleading or deceptive conduct. The essential claim is that Tatton Park was not merely a conduit for the transmission of information from Edmiston Associates to Stuart, but itself effectively vouched the accuracy of the information that it purportedly transmitted.

335 In my view, Stuart’s claim against Tatton Park is doomed to fail. The reasons may be explained shortly:

(1) Stuart asked Tatton Park to obtain certification from (relevantly) “the Architect”. It did not ask Tatton Park itself to provide certification.

(2) Neither Mr Georgiadis or anyone else from Stuart said that Stuart relied upon Tatton Park’s memorandum of 13 August 1999 as containing some independent vouching or warranty by Tatton Park of the material that was purportedly transmitted.

§ Tatton Park knew, or should have understood, that it was being asked itself to provide independent certification.

§ Stuart in fact requested Tatton Park itself to provide independent certification.

§ Tatton Park itself did in fact provide independent certification.

(4) In truth, Tatton Park did no more than seek to pass on Mr Georgiadis’ request to Mr Edmiston, and seek to pass on Mr Edmiston’s response to Mr Georgiadis.

(5) In fact, as the evidence shows, Tatton Park failed to achieve either of the objectives that I have just described.

(6) Additionally, the very circumstance, just adverted to, that Tatton Park did not send a copy of the certification letter to Stuart under cover of the memorandum of 13 August 1999, shows that Tatton Park did not make any representation and did not engage in any relevant conduct that is capable of being characterised as misleading or deceptive.

336 In any event, even if I am wrong in all this, the reasons that I have given for saying that Stuart’s claim against Edmiston Associates fails must also mean that Stuart’s “shoot the messenger” claim against Tatton Park must fail.

Cross-claims between the defendants

337 The conclusions to which I have come on the relevant issues between Stuart and Feteni, Stuart and Edmiston Associates, and Stuart and Tatton Park mean that none of the cross-claims for contribution or indemnity between the defendants requires consideration. Each of them must fail because the relevant cross-claimant has no liability in respect of which any question of indemnification could arise.

CSA’s claim: 55010 of 2002

338 The conclusions to which I have come in respect of the meeting of 30 August 1999 mean that this claim must fail.

339 Even if I am wrong, and some guarantee of completion had been given at the meeting of 30 August 1999, I would find that CSA’s claim against Stuart must fail. That is because, on the evidence:

(1) Any guarantee had been unequivocally withdrawn by 1 September 1999 (see the letter of that date from Mr Georgiadis to Mr Hickman referred to in para [76(1)] above).

(2) Mr Hickman and Mr Sam Papallo acknowledged that they so understood Mr Georgiadis’ letter of 1 September 1999.

(3) Nothing relevant, by way of reliance, detriment, or the like, occurred between 30 August and 1 September 1999.

340 It is, therefore, clear that there was no relevant reliance on the alleged guarantee. Indeed, Mr Sam Papallo’s evidence was that no steps were taken, or expense incurred, after 1 September 1999 that were not planned to have been taken, or incurred, prior to 30 August 1999. The asserted reliance is not made out in fact; and even if, subjectively, there were reliance, it could not have been regarded as reasonable after 1 September 1999. There is no element of loss attributable to any such asserted subjective reliance between 30 August and 1 September 1999.

Summary of conclusions; order

341 My conclusions on the various questions that are comprehended by the order under Pt 31 r 2 are as follows:

(1) EOT 2: Stuart is entitled to an extension of time of 27 working days from 11 October 1999.

(2) EOT 3: Stuart is entitled to a further extension of time, (ie, additional to that in respect of EOT 2) of 18 working days.

(3) EOT 4: Stuart is not entitled to an extension of time.

(4) The date for practical completion: is 45 working days after 11 October 1999.

(5) The date of practical completion: is 10 March 1999.

(6) Penalty: The relevant clause of the contract, 10.14A, is not a penalty.

(7) Liquidated damages: Feteni is entitled to liquidated damages at the rate of $15,000 per week or pro rata from the extended date for practical completion (ie, from the expiry of 45 working days after 11 October 1999) up until 10 March 2000.

(8) Feteni’s claim for general damages: does not need to be decided.

(9) Stuart’s claim against Edmiston Associates: fails.

(10) Stuart’s claim against Tatton Park: fails.

(11) Cross-claims between each of the defendants: each fails.

342 In accordance with the wishes of the parties, the only order that I make is that the proceedings are stood over to a date to be arranged by the parties with my associate (but no later than 30 April 2004) to enable the parties to bring in short minutes of order to give effect to these reasons and to put submissions on costs. As I have intimated in para [6] above, the draft orders should make provision for the reference of the outstanding issues under Pt 72.

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Last Modified: 04/14/2004

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Citations

Stuart v Feteni; Coogee Sands Apartments v Stuart [2004] NSWSC 237

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CITATION:	STUART v FETENI & ORS; COOGEE SANDS APARTMENTS v STUART & ANOR [2004] NSWSC 237 revised - 8/04/2004
HEARING DATE(S):	23/2/04, 24/2/04, 25/2/04, 26/2/04, 27/2/04, 1/3/04, 2/3/04, 3/3/04, 5/3/04
JUDGMENT DATE:	7 April 2004
JUDGMENT OF:	McDougall J at 1
DECISION:	See para [341] of judgment
CATCHWORDS:	BUILDING AND CONSTRUCTION - contract - amended standard form Building Works Contract - whether entitled to extensions of time - determination of date for extended practical completion - whether entitled to liquidated damages - whether liquidated damages clause a penalty - whether unconditional guarantee of completion date given - whether any such guarantee relied upon - whether negligent certification that the design of works complied with relevant requirements - whether certification relied upon in deciding whether to enter into the contract - misrepresentation
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 Esanda Finance Corporation Ltd v Plessnig (1989) 166 CLR 131 Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504 Turner Corporation Pty Ltd (Receiver & Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378
PARTIES :	In proceedings 55021/01: Stuart Pty Ltd (Plaintiff) Feteni Pty Ltd (First Defendant) Robin Edmiston & Associates Pty Ltd (Second Defendant) Tatton Park Pty Ltd (Third Defendant) In proceedings No. 55010/02: Coogee Sands Apartments Pty Ltd (Plaintiff) Stuart Pty Ltd (First Defendant) Alexander Stuart (Second Defendant)
FILE NUMBER(S):	SC 55021/01; 55010/02
COUNSEL:	F C Corsaro SC/M J Dawson (Stuart) J B Simpkins SC/N J Kidd (Feteni & Coogee Sands) G A Sirtes (Edmiston & Associates) I G B Roberts (Tatton Park) R A Cavanagh (Architects Haywood + Bakker - first cross-defendant in matter 55021/01)
SOLICITORS:	PricewaterhouseCoopers Legal (Stuart) Snelgrove & Partners (Feteni & Coogee Sands) Henry Davis York (Edmiston & Associates) Phillips Fox (Tatton Park) James Tuite & Assoc (Architects Haywood + Bakker)