Thiess Pty Ltd v Arup Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2012] QSC 185

PARTIES:

THIESS PTY LTD ABN 87 010 221 486
(first applicant)
and
JOHN HOLLAND PTY LTD ABN 11 004 282 268
(second applicant)
v
ARUP PTY LTD ABN 18 000 966 165
(first respondent)
and
PARSONS BRINCKERHOFF AUSTRALIA PTY LTD
ABN 80 078 004 798
(second respondent)
and
BDO (QLD) PTY LTD ABN 45 134 242 434
(third respondent)

FILE NO:

4441 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10-11, 14-18, 21-23 and 25 May 2012

JUDGE:

Applegarth J

ORDER:

1.   Within 7 days the first and second respondents submit draft minutes of orders reflecting the declarations to be made in their favour and the resolution of the Access to Records Dispute.

2.   Within a further 14 days the parties confer in relation to the terms of declaratory and other orders.

3.   The proceedings be adjourned to 16 August 2012 for the purpose of any further submissions as to the form of orders.

4. The applicants’ counterclaim for alleged contravention of the Trade Practices Act 1974 (Cth) is dismissed.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where applicants (“TJH”) engaged first and second respondents (“PBA”) as consultants – where TJH and PBA entered into a Collaborative Consultancy Agreement (“CCA”) for design of infrastructure project – where Schedule 7 to the CCA governs compensation of PBA for work performed under the CCA – where Schedule 7 establishes a “3-element” compensation model – where first element reimburses PBA for “actual cost” related to work performed under the CCA – where TJH contends that the words “actual cost” in cl S7-1 of the CCA bear their ordinary meaning – where TJH contends that later provisions in Schedule 7 relate only to the quantum of progress payments and do not govern PBA’s entitlement to compensation – where PBA contends that the words “actual cost” in cl S7-1 in relation to staff rates are defined by cl S7-3 – whether, upon proper interpretation of the CCA, cl S7-1, cl S7-3 and cl S7-4 specify and thereby define costs for which PBA is to be compensated by TJH

EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE RELIEF IN CASE OF MISTAKE – Rectification – Particular cases – where, following negotiations, TJH and PBA entered into the CCA as a written agreement – where Schedule 7 to the CCA refers to various “multipliers” to be applied to “raw rates” in determining compensation under the agreement for cost of personnel – whether, had the CCA mistakenly recorded the parties’ agreement, TJH and PBA held a common intention at the time of entering into the CCA that the multipliers would not be “subject to audit” – whether PBA engaged in conduct lacking in good faith precluding it from seeking the remedy of rectification

TRADE PRACTICES AND RELATED MATTERS…