Thiess Pty Ltd v Arup Pty Ltd

In the Federal Court of Australia, Thiess Pty Ltd ("TJH") sought declaratory relief against Arup Pty Ltd ("PBA") concerning the interpretation and application of a Collaborative Consultancy Agreement ("CCA") for the design of an infrastructure project. TJH and PBA had entered into the CCA to compensate PBA for work performed, governed by Schedule 7. TJH argued that the compensation terms should be based on the ordinary meaning of "actual cost" and not defined by later provisions in Schedule 7. PBA contended that the terms in Schedule 7, including the definition of "actual cost" as per clause S7-3, governed PBA’s entitlement to compensation.

The court considered whether clauses S7-1, S7-3, and S7-4 of Schedule 7 specified and defined the costs for which PBA was to be compensated. The court also examined the potential for rectification of the CCA if there was a common intention regarding the "subject to audit" clause and whether PBA’s conduct precluded them from seeking rectification. Furthermore, the court assessed whether PBA had breached the Trade Practices Act 1974 by failing to disclose specific information prior to the agreement and whether the investigations by Easdown Consulting Pty Ltd constituted Compliance Audits as per the CCA.

The court found that the terms in Schedule 7 did specify and define the compensation costs. It dismissed the claim for rectification based on the lack of good faith by PBA. Additionally, the court held that PBA did not breach the Trade Practices Act 1974 and that the investigations by Easdown did not constitute Compliance Audits. The court also found that no agreement was reached at the meeting to amend the overtime rate terms, and TJH was not estopped from denying such an agreement.

The court dismissed TJH's counterclaim for alleged contravention of the Trade Practices Act 1974. It ordered the respondents to submit draft minutes of orders within seven days, with further submissions on the form of orders to be made by 16 August 2012.