Thiess Pty Ltd v Arup Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:	Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2012] QSC 131
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:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	17 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2012
JUDGE:	Applegarth J
ORDER:	The report of Mr Geoffrey Walsh, save for section 4.11, will be admitted into evidence.
CATCHWORDS:	EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – Qualifications of witness – Where witness is accountant and auditor – Whether witness possesses expertise in a specialised field of knowledge relevant to the proceedings – Whether report prepared by witness sufficiently discloses the bases or reasoning for opinions
COUNSEL:	A J Myers AO QC, P L O’Shea SC and T J Bradley for the applicants P A Freeburn SC and J P O’Regan for the first and second respondents
SOLICITORS:	Freehills for the first and second applicants Schweikert Harris for the first and second respondents Clayton Utz for the third respondent (excused from appearing during the trial)

1. Objection is taken by the first and second respondents (“PBA”) to the admissibility of the report of Mr Geoffrey Walsh of Pitcher Partners.

Background

1. The applicants (“TJH”) and PBA are parties to a “Collaborative Consultancy Agreement” (“the CCA”) dated 16 May 2008 in respect of the Airport Link, Northern Busway (Windsor to Kedron) and East-West Arterial Gateway Projects.  TJH engaged PBA as consultants for the design of the project.

1. The matters in dispute between TJH and PBA include a dispute about the interpretation of the terms of the CCA.  Clause 16.1 of the CCA states that the compensation “set out in the Commercial Framework will be the sole compensation to the Consultant [PBA] for the complete fulfilment of all of their obligations under this Agreement”.

1. The Commercial Framework contained in Schedule 7 to the CCA provides a

   
   

   “3-Element” compensation model.  Clause S7-1.1.1 relevantly provides:

“... the Consultant will be compensated for participating in carrying out Collaborative Agreement Work in accordance with the following ‘3-Element’ model, where:

Element 1 =The following costs incurred directly by the Consultant on the Collaborative Agreement Work will be reimbursed at actual cost subject to audit:

(i)the cost of personnel performing the Collaborative Agreement Work, including mistakes, rework and wasted effort, but not including costs incurred as a result of, or in committing, remedying or addressing a Wilful Default;

(ii)Project-specific overheads related to the Collaborative Agreement Work;  and

(iii)actual costs of Project-specific plant and materials ...

Reimbursement to the Consultant under Element 1 must not include any recovery of non Project-specific overheads or profit or costs arising under clause…