Thiess Pty Ltd v Arup Pty Ltd - [2013] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2013] QCA 65

PARTIES:

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

FILE NO/S:

Appeal No 7571 of 2012
SC No 4441 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2013

JUDGES:

Margaret McMurdo P, Muir and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal be allowed to the limited extent of varying the declarations made by the primary judge on 16 August 2012 by the deletion of paragraph 3.

2. The appellants pay the costs of the first and second respondents.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – DEFINITION – where the appellants engaged the respondents as consultants – where the appellants and the respondents entered into a Collaborative Consultancy Agreement – where Schedule 7 establishes a ‘3-Element’ compensation model – where the first element provides that the respondents are to be reimbursed at ‘actual cost’ for Collaborative Agreement Work– where the primary judge found, and the respondents contend, that clause S7-3 defines, in relation to staff rates, the way in which ‘actual cost’ within the meaning of Element 1 is to be determined – where the appellants submit that S7-3 has application only for the purpose of calculating notional ‘actual costs’ for the purposes of progress claims and payments – whether, upon the proper construction of Collaborative Consultancy Agreement, S7-3 defines ‘actual costs’ for the purposes of S7-1 or whether S7-3 is limited in its application to progress claims and payments

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – DEFINITION – where clause 20.3(a) of the Collaborative Consultancy Agreement provides that BDO, as the Collaborative Agreement Auditor, would have access to the personnel and records of the first and second respondents – where the primary judge refused the appellants’ application for declarations requiring the first and second respondents to give the Collaborative Agreement Auditor access to their records and personnel – where the appellants submit that the provisions of the Collaborative Consultancy Agreement support a broad approach to the Auditor’s right of access – where the respondents contend that BDO sought the documents for a purpose irrelevant to the exercise of its functions under the Agreement – whether the primary judge erred in exercising his discretion against the grant of declaratory relief

Corporations Act 2001 (Cth), s 290(1), s 310(a)

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCA 65
Decision Date: 2 April 2013

CaseChat Overview and Summary

Thiess Pty Ltd, the appellant, engaged Arup Pty Ltd, the first respondent, as consultants, and later entered into a Collaborative Consultancy Agreement with Arup and another entity, the second respondent. The agreement established a compensation model, where the first element provided that Arup would be reimbursed at actual cost for work performed under the agreement. The appellants disputed the interpretation of "actual cost" as defined in clause S7-3 of the agreement, which they argued should only apply to calculating notional costs for progress claims and payments, rather than for the final reimbursement. The respondents contended that clause S7-3 determined the actual cost for the purposes of clause S7-1. The primary judge ruled in favour of the respondents, finding that clause S7-3 defined the way in which "actual cost" was to be determined. The appellants appealed the primary judge's decision, arguing that the interpretation of clause S7-3 was incorrect, and sought declaratory relief that the Collaborative Agreement Auditor, BDO, had access to the respondents' records and personnel. The respondents opposed the appeal and the request for declaratory relief, arguing that BDO's request for access to their records was irrelevant to the auditor's functions under the agreement.

The court examined the nature of the dispute between the parties, focusing on the interpretation of the Collaborative Consultancy Agreement and the application of clause S7-3. The court also considered the issue of the Collaborative Agreement Auditor's access to the respondents' records and personnel. The primary legal issues before the court were whether clause S7-3 defined "actual cost" for the purposes of clause S7-1 or whether it was limited to calculating notional costs for progress claims and payments, and whether the primary judge was correct in refusing the appellants' application for declaratory relief regarding the Auditor's right of access. The court found that the primary judge's interpretation of clause S7-3 was incorrect, and that the clause was limited in its application to calculating notional costs for progress claims and payments. The court also found that the primary judge was correct in refusing the appellants' application for declaratory relief, as the respondents' contention that BDO's request for access to their records was irrelevant to the auditor's functions under the agreement was valid.

Upon the appeal, the court allowed the appeal to the limited extent of varying the declarations made by the primary judge on 16 August 2012 by the deletion of paragraph 3. The court found that the primary judge's interpretation of clause S7-3 was incorrect, and that the clause was limited in its application to calculating notional costs for progress claims and payments. The court also found that the primary judge was correct in refusing the appellants' application for declaratory relief, as the respondents' contention that BDO's request for access to their records was irrelevant to the auditor's functions under the agreement was valid. The court ordered that the appellants pay the costs of the first and second respondents. The appeal was limited to varying the declarations made by the primary judge, and did not affect the overall outcome of the case between the parties.

Orders

Orders of the court

1. The appeal be allowed to the limited extent of varying the declarations made by the primary judge on 16 August 2012 by the deletion of paragraph 3.

2. The appellants pay the costs of the first and second respondents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2013] QCA 65
PARTIES:	THIESS PTY LTD ABN 87 010 221 486 (first appellant) JOHN HOLLAND PTY LTD ABN 11 004 282 268 (second appellant) v ARUP PTY LIMITED ABN 18 000 966 165 (first respondent) PARSONS BRINCKERHOFF AUSTRALIA PTY LIMITED ABN 80 078 004 798 (second respondent) BDO (QLD) PTY LTD ABN 45 134 242 434 (third respondent)
FILE NO/S:	Appeal No 7571 of 2012 SC No 4441 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2013
JUDGES:	Margaret McMurdo P, Muir and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed to the limited extent of varying the declarations made by the primary judge on 16 August 2012 by the deletion of paragraph 3. 2. The appellants pay the costs of the first and second respondents.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – DEFINITION – where the appellants engaged the respondents as consultants – where the appellants and the respondents entered into a Collaborative Consultancy Agreement – where Schedule 7 establishes a ‘3-Element’ compensation model – where the first element provides that the respondents are to be reimbursed at ‘actual cost’ for Collaborative Agreement Work– where the primary judge found, and the respondents contend, that clause S7-3 defines, in relation to staff rates, the way in which ‘actual cost’ within the meaning of Element 1 is to be determined – where the appellants submit that S7-3 has application only for the purpose of calculating notional ‘actual costs’ for the purposes of progress claims and payments – whether, upon the proper construction of Collaborative Consultancy Agreement, S7-3 defines ‘actual costs’ for the purposes of S7-1 or whether S7-3 is limited in its application to progress claims and payments CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – DEFINITION – where clause 20.3(a) of the Collaborative Consultancy Agreement provides that BDO, as the Collaborative Agreement Auditor, would have access to the personnel and records of the first and second respondents – where the primary judge refused the appellants’ application for declarations requiring the first and second respondents to give the Collaborative Agreement Auditor access to their records and personnel – where the appellants submit that the provisions of the Collaborative Consultancy Agreement support a broad approach to the Auditor’s right of access – where the respondents contend that BDO sought the documents for a purpose irrelevant to the exercise of its functions under the Agreement – whether the primary judge erred in exercising his discretion against the grant of declaratory relief Corporations Act 2001 (Cth), s 290(1), s 310(a) Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR…