UGL Rail Pty Limited v Trox (Australia) Pty Limited - [2017] NSWSC 770

Supreme Court

New South Wales

Medium Neutral Citation: UGL Rail Pty Limited v Trox (Australia) Pty Limited [2017] NSWSC 770
Hearing dates: 15/05/2017; 16/05/2017; 22/05/2017; 24/05/2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Proceedings dismissed with costs.

Catchwords: BUILDING AND CONSTRUCTION – whether sound attenuators designed and supplied by the defendant for the Lane Cove Tunnel Project were defective – BUILDING AND CONSTRUCTION – whether UGLR instructed Trox to repair, modify, replace and/or provide again the defective attenuators – where notices given to Trox were ineffective – CONTRACT – whether UGLR is entitled to recover damages – where Alstom subcontracted to Trox responsibility to design and supply the sound attenuators (Trox subcontract) – where Alstom sold its “Business” and all “Contracts” relating to it to UGLR (Sale contract) – whether Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract – whether UGLR had implied actual authority to administer and perform the Trox subcontract – whether UGLR’s conduct was ratified by a deed of assignment – whether Alstom became a trustee of its rights under the Trox subcontract for the benefit of UGLR – CONTRACT – whether after completion of Sale contract Alstom suffered loss compensable in damages by reason of the defects – CONTRACT – whether UGLR incurred costs and expenses – where works were done by related companies – where UGLR has no obligation in relation to the costs and expenses incurred by those companies
Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639
Byrnes v Kendle (2011) 243 CLR 253
Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 134 (1993) 32 NSWLR 50
Jessup v Queensland Housing Commission [2002] 2 Qd R 270
In Re Schebsman; Ex parte Official Receiver v Cargo Superintendents (London) Ltd [1944] Ch 83
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62
Mackay v Dick (1881) 6 App Cas 251;
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127
Category: Principal judgment
Parties: UGL Rail Pty Limited (Plaintiff)
Trox (Australia) Pty Limited (Defendant)
Representation:
Counsel:
M Ashhurst SC / S Docker (Plaintiff)
CRC Newlinds SC / C McMeniman (Defendant)
Solicitors:
Norton Rose Fulbright Australia (Plaintiff)
Henry Davis York (Defendant)

File Number(s): 2013/249904

Judgment

HIS HONOUR: There are two fundamental questions to be decided in this litigation. The first is whether sound attenuators designed and supplied by the defendant (Trox) for the Lane Cove Tunnel Project (the Project) were defective. The second is whether, in respect of such defects as are admitted or proved, the plaintiff (UGLR) is entitled to recover damages. The issues of fact and law spawned by those questions are numerous.

Background

A consortium of Thiess Pty Ltd and John Holland Pty Ltd (TJH) undertook the design and construction of the Project. TJH subcontracted to Alstom Australia Pty Limited (Alstom) responsibility to design and construct, among other things, the mechanical ventilation system required for the Project. Alstom subcontracted to Trox responsibility to design and supply (but not to install) the necessary sound attenuators (the Trox subcontract).
The Lane Cove “Tunnel” comprises road tunnels passing under the Pacific Highway at Artarmon, together with access ramps and ancillary works. The tunnels link Epping Road and the M2 Motorway to the West with the Gore Hill Freeway in the East. Mechanical ventilation is required. Alstom’s design provided for ventilation fans to be installed at locations known as Epping Road, Marden Street and Sirius Road. The Marden Street and Sirius Road fans draw stale air out of the tunnels. The Epping Road fans supply fresh air. The fans are very large, and their operation generates high levels of noise.
Sound attenuators reduce the noise produced by operation of the fans. In this case, the mechanical ventilation design required both “inlet” and “outlet” attenuators to be installed. The former are placed ahead of the fans. The latter are placed after them. In essence, the attenuators comprise a series of panels through which air passes. There are two kinds of panel: resonator panels and absorber panels. Resonator panels, which are backed by solid steel sheets, are intended to damp lower noise frequencies. Absorber panels, which are backed by perforated steel sheets, are intended to absorb some of the higher frequency noise.
In essence, UGLR says that Trox’s designs were deficient because the attenuator structures lacked the strength to withstand the stresses imposed by cyclical movements in the panel assemblies. Those movements were caused by differential pressures between the air surrounding the attenuators and the air passing through them. Trox accepts that some, but not all, of its attenuators were defective.
The legal basis of UGLR’s claimed entitlement to damages is complex. On 2 June 2005, Alstom agreed to sell to UGLR Alstom’s “Business” as defined (the sale contract). That Business included the benefit of all “Contracts” relating to the Business which Alstom had made in the ordinary course of conducting that Business. It is common ground that the Trox subcontract was one of those “Contracts”, and among the “Assets” that were sold.
The sale contract provided that Alstom should procure the assignment or novation of all “Contracts” to UGLR, or provide the benefit of those Contracts to UGLR “by subcontracting or otherwise”. It provided, further, for what was to happen between completion of the sale contract and the date when any particular Contract was in fact “novated, assigned, [or] subcontracted” to UGLR, or UGLR was otherwise given the benefit of it.
UGLR says that on the proper construction of those provisions of the sale contract, it became entitled to exercise the powers of Alstom under the Trox subcontract and to receive the benefit of Trox’s performance of that subcontract, or damages in lieu.
On 16 September 2005, TJH, Alstom and UGLR made a Deed of Novation of Contract. By cl 3 of that deed, the parties acknowledged that the subcontract between TJH and Alstom “is novated with effect from [its] original date… so that [UGLR] replaces [Alstom] in any capacity under” that subcontract. Clause 3 stated that the subcontract was to be read as though UGLR, not Alstom, had been “an original party” to it, and each reference to Alstom should be read as a reference to UGLR.
The only proved formal assignment from Alstom to UGLR of the benefit of the Trox subcontract is a deed of assignment dated 12 March 2013. Although that deed purported to be effective from the date of “Completion” of the sale contract, UGLR accepts that the deed could only have effect from its date. It is common ground that Trox received written notice of the deed of assignment. Otherwise, so far as the evidence goes, Alstom took no step to procure the novation of the Trox subcontract to UGLR, or to subcontract to or otherwise provide UGLR with the benefit of that subcontract.

The real issues in dispute

With that background, it is now appropriate to turn to what the parties agreed were the real issues to be decided. I set them out omitting the parties’ helpful, but for present purposes unnecessary, cross-references to the “pleadings”:

Claim for loss and damage from failure to repair etc
1.   Did Trox fail to design and/or supply sound attenuators in accordance with the Trox Subcontract in any of the following respects:
(a)   the sound attenuators had no lateral restraint on the central base location?
(b)   the bullnoses to sound attenuators were not properly affixed?
(c)   the splitter brackets for the sound attenuators had inadequate midsection restraint?
(d)   the outside resonator panels in the sound attenuators could not withstand inward forces produced by static and moving air?
(e)   were any of the sound attenuators not fit for purpose?
(f)   did any of the sound attenuators not have a minimum design life of 20 years?
2.   Did UGLR at the relevant time have the right to form any necessary opinions and exercise any necessary powers for the purpose of clause 19 of the Trox Subcontract by reason of:
(a)   clause 29.4 of the Alstom Sale Agreement?
(b)   ratification pursuant to clause 3 of the Deed of Novation?
3.   Did UGLR have the right to instruct Trox pursuant to clause 19(b)(ii) of the Trox Subcontract to repair, modify, replace and/or provide again the sound attenuators that were not designed/supplied in accordance with the Trox Subcontract in answer to 1 above (Defective Sound Attenuators) by reason of:
(c)   clause 29.4 of the Alstom Sale Agreement?
(d)   ratification pursuant to clause 3 of the Deed of Novation?
4.   On the assumption that clause 19 was engaged, did UGLR instruct Trox to repair, modify, replace and/or provide again the Defective Sound Attenuators pursuant to clause 19.0(b) of the Trox Subcontract?
5.   On the assumption that clause 19 was engaged, did Trox breach clause 19.0(b) by failing to repair, modify, replace or provide again at its expense the Defective Sound Attenuators before the repair, modification, and replacement work (Rectification Work) was undertaken or carried out? If so was this a continuing breach until that work was undertaken by UGLR?
6.   What loss or damage, if any, did Alstom suffer by each breach in answer to 5 above?
7.   Was Alstom indemnified for its loss or damage pursuant to clause 19.0(e)?
8.   Were Alstom’s claims in 1-7 above assigned to UGLR on 11 March 2013?
9.   Does Trox’s limitation defence succeed in whole or in part on any of those claims?
Claim for payment for Rectification Work
10.   Repeat issues 1 and 2 above.
11.   On the assumption that clause 19 was engaged, was Trox given an opportunity pursuant to clause 19.0(c) to repair, modify, replace or provide again at its expense the Defective Sound Attenuators before the Rectification Work was undertaken or carried out?
12.   Did Trox fail to commit to and effect, or was it incapable of, carrying out the Rectification Work within a reasonable time pursuant to clause 19.0(c)?
13.   Did UGLR have the right to cause the Rectification Work to be undertaken or carried out pursuant to clause 19.0(c) by reason of:
(a)   clause 29.4 of the Alstom Sale Agreement?
(b)   ratification pursuant to clause 3 of the Deed of Novation?
14.   What costs and expenses resulted from the Rectification Work?
15.   Did UGLR incur any of the costs and expenses in relation to the Rectification Work?
16.   Did Alstom incur any of the resulting costs or expenses for the purpose of a claim under clause 19 of the Trox Subcontract?
17.   Was Trox liable to pay those costs and expenses pursuant to clause 19.0(c):
(a)   to UGLR at the suit of Alstom?
(b)   to Alstom?
18.   Was Alstom indemnified for those costs and expenses pursuant to clause 19.0(e)?
19.   Were Alstom’s claims in 10-18 above assigned to UGLR on 11 March 2013?
20.   Does Trox’s limitation defence succeed in whole or in part on any of those claims?
Claims not depending on assignment
21.   In respect of the claims in 1-7 and 10-18 above, did Alstom hold its rights under the Trox Subcontract on trust for UGLR by reason of the Alstom Sale Agreement?
22.   If the answer to 21 above is “yes”, was it necessary for UGLR to join Alstom to its claim as beneficiary of that trust after Trox was notified of the Deed of Assignment?
23.   In respect to the claims in 10-18 above, after Trox was notified of the Deed of Assignment, what costs and expenses, if any, did UGLR incur in undertaking the Rectification Work and is UGLR entitled to payment or indemnity from Trox for such costs and expenses pursuant to clause 19.0(c) and/or 19.0(e) of the Trox Subcontract?

Although the statement of the first issue appears somewhat opaque, I shall explain the relevant technical terms.

Design and construction of the attenuators

UGLR’s expert, Mr Gillespie, described the attenuator installations and their construction in a way that is both noncontentious and helpful. I adapt the substance of what he said.
The ventilation stations at Epping Road and Marden Street are of similar layout. The ducting, fans and outlet attenuators are orientated horizontally. The layout of the Sirius Road station is different, in that that fan system and outlet attenuators are orientated vertically.
The layouts of the inlet attenuators differ. The Epping Road fans share a large common bank of attenuators which is constructed in three stages. The attenuators are located some distance away from (upstream of) the fans. At Marden Street, there is an individual bank of attenuators for each fan. At Sirius Road, the fans share a common attenuator bank, but it is located some distance from (upstream of) the fans.
At Epping Road and Marden Street, the outlet attenuators comprise panels stacked 2 panels high and 3 long. The Sirius Road outlet attenuators are designed somewhat differently. They comprise separate modules of resonator and absorber panels, each stacked 2 panels high and 2 long.
The inlet attenuators at Marden Street are constructed in the same way as the outlet attenuators. However, at Epping Road and Sirius Road, the inlet attenuators are stacked 5 panels high and either 2 or 3 panels long.
Each attenuator consists of a module comprising a series of sound absorbing panels. The typical panel measures 2m x 2m, and is about 200mm thick. Each panel is contained within a frame constructed from folded sheet metal. The frames abut each other. Wherever there are four touching frame corners, they are joined by a connecting plate, which is bolted to each panel frame by a “Nutsert” fixer. The Nutsert fastening system comprises a threaded fastener swaged into a preformed hole in the underlying frame, so that the joining plate can be bolted to each of the four frames.
In most cases, the frames were constructed of a material known as ZAM steel, which is steel coated with an alloy of zinc, aluminium and magnesium. However, the Sirius Road outlet attenuator panel frames were constructed of grade 304 stainless steel (SS304). It was common ground that SS304 has a substantially higher tensile strength, and hence a higher fatigue strength or endurance limit, than ZAM steel. The significance of that difference was a matter of some debate between the experts (Mr Gillespie, as I have said, called for UGLR, and Mr Marks, called for Trox).
The attenuators were arrayed in “rows” known as “splitters”. At the front of the attenuators (that is to say, facing the direction of the airflow), bullnose panels were attached. Initially, those panels were attached by self tapping screws. This method of affixing proved to be inadequate, and work was done to rectify the problem.
Mr Gillespie prepared a helpful drawing showing, among other things, typical details of a horizontal attenuator assembly. I reproduce that drawing as Appendix 1 to these reasons.
The drawing shows that wherever four panels meet, there is a “panel joining plate”. That is the plate that I have described at [18] above, which was designed to be bolted to the underlying frames using the Nutsert system.
The attenuators are located within the system of ducting that leads into the fans that they service (for the inlet attenuators) or out of those fans (for the outlet attenuators). In most cases, as I understand it, the attenuators are located physically within the metal ducting itself. In some cases, however, the attenuators are located in a chamber in the rock, with ducts leading into and out from that chamber.
Wherever the attenuators are located, the ducting (including in this any rock chamber in which a particular attenuator might have been located) is sealed. In most cases, apparently, the ducting was sealed at one end only of the attenuators. In one case – the Epping Road inlet attenuators – the ducting was sealed at each end of the attenuator.
In some cases, attenuators are located relatively close to bends or junctions in the ductwork. Mr Marks suggested that in those cases, the bend or junction would cause the airflow to become turbulent, which in turn might cause the air pressure within the attenuator to fluctuate more than would be the case absent such turbulence. There is no need to pursue that. It was Trox’s responsibility to design attenuators that would function, to the specified level, within the mechanical ventilation system designed by Alstom. If the location of the attenuators caused problems, they were problems that Trox was required to overcome. The attenuators had to work as components of the system designed by Alstom, in the locations specified for them by Alstom.

Metal fatigue

Metals have a tensile strength which can be assessed by testing, and which is expressed in megapascals (MPa). The fatigue strength (also called endurance limit) of a metal can be ascertained either by laboratory testing or by estimation based on applying a factor to its known tensile strength. That factor is known as the “endurance ratio”.
At one point, Mr Gillespie’s evidence referred to and used an endurance ratio of 0.35[1] . However, subsequently, Mr Gillespie referred to and used an endurance ratio of 0.27. The effect of lowering the endurance ratio is to produce, for a known tensile strength, a lower calculated fatigue strength.
1. See at [39] below.
Metal fatigue is the result of cyclical stressing of the metal. The fatigue life of a structural component can be calculated using the levels of stress (in MPa) and their frequency. Those values can be obtained by measurement or by estimation. Where the stress levels exceed the fatigue strength of the metal, it will ultimately fail. However, where the stress levels are below the fatigue limit then, in principle at least, the metal will not succumb to fatigue failure.
In the present case, the Trox subcontract specified that the attenuators should “be fit for the purposes of long-term operation” and should “have a minimum design life of 20 years”. Mr Gillespie calculated that, for a design life of 20 years, the outlet attenuators at Marden Street and Sirius Road would be subjected to anything from 1.3 to 6.3 billion stress cycles. The range varies widely, because it depends critically on whether the fans will be used continuously or intermittently.
Mr Gillespie said that the extremely high number of cyclical stresses to be expected over the design life of the attenuators effectively meant that they should be designed for “infinite fatigue life”. Mr Marks did not agree. He said that this was over-designing.
Mr Gillespie said that in designing a metal structure to have effectively an infinite fatigue life, it was necessary to ascertain the fatigue strength of the metal and then to apply a factor of safety. Mr Marks said that this approach was unnecessarily conservative. He said that, where the specification required a minimum 20 year design life, an appropriate factor of safety could be assured by designing, for example, for a 30 year design life. I shall return to this, because it is of critical importance in relation to one of the two contentious defects.
Mr Gillespie, or his then employer (known as Sinclair Knight Merz – SKM), had been retained on behalf of UGLR in 2008 or earlier to identify the cause of the defects that had manifested themselves on commissioning or start-up of many of the attenuators, and to design appropriate repairs and modifications. Mr Newlinds of Senior Counsel, who appeared with Mr McMeniman of Counsel for Trox, submitted that in those circumstances, Mr Gillespie was not truly independent, because he was put into the position of defending his own prior work. I shall return to that submission.

When Mr Gillespie carried out his investigations in 2008, he attempted to calculate the stresses acting on the attenuator panel frames at about the point of failure. The point of failure was observed to be at some of the bolt holes in the joining plates, where there were fatigue cracks. Mr Gillespie placed instruments known as strain gauges on the panel frames, as close as was practicable to the points of failure. Those strain gauges measured (in units known as microstrains) the strains operating on the panel frame over time at the points where they were placed.
Once Mr Gillespie obtained his strain gauge readings, he used them to calculate the stresses operating on the panel frame at the points where the strain gauges had been placed. He did that by multiplying the recorded strain by the modulus of elasticity of the metal frame. The calculation produced a stress measured in MPa.
From those test results and calculations, Mr Gillespie was able to generate a “cycle count histogram”, which depicted in graphic form the frequency of occurrence of stresses at various levels of amplitude.
Because a strain gauge placed (for example) close to the joining plate does not measure the strain actually acting on that plate at the point of failure, the stress calculated from the strain gauge readings was not the stress acting on the plate itself. To move from the calculated stress to the likely stress acting on the joining plate, Mr Gillespie applied what he called a “scale factor”. That scale factor was derived by use of a computer modelling tool known as finite element analysis (FEA). According to Mr Gillespie, his FEA indicated that a scale factor of 2.9 would be appropriate in at least some locations, although in other locations, lower stress scale factors might be appropriate.
The selection of a stress scale factor is critical. That point is illustrated graphically by a figure taken from SKM’s report of 18 September 2008:

That graph shows that a stress scale factor of about 2.7 (the precise figure, as it appears in SKM’s report, is 2.73) should yield a design life of 20 years when utilised to calculate the stress operating at the point of failure. Mr Gillespie considered that there should be a safety factor of 1.2 applied to the stress scale factor. As again the graph shows, a stress scale factor of about 2.5 (precisely, 2.55) would yield a design life of 100 years: greatly more than required. However, the inherent safety factor (2.73/2.55) is 1.07, or 7%. Mr Gillespie said that to obtain a safety factor of 1.2 on stress, the stress scale factor should be no higher than 2.3 (2.73/2.3 = 1.19).
As I have noted already, the fatigue strength of a metal is a function of its tensile strength. Thus, if one were to calculate fatigue strength without using strain gauges and stress scale factors, the starting point would be to ascertain the tensile strength of the metal. For ZAM steel, the tensile strength on which Mr Gillespie worked was 370 MPa. He said that the “fatigue strength (endurance limit) [is] typically about 35% of the tensile strength” [2] . Thus, on Mr Gillespie’s assumed tensile strength, the fatigue strength of ZAM steel would be approximately 130 MPa [3] .
2. SKM report of 18 September 2008, para 5.2.1.1
3. In the SKM report of 18 September 2008, Mr Gillespie suggested at para 5.2.1.2 that for ZAM steel, “a fatigue strength (endurance limit) of around 150 MPa would be expected” on the basis of that calculation.
Mr Gillespie assumed that SS304 had a tensile strength of 515 MPa. However, the mill records for the SS304 actually used in the construction of the Sirius Road outlet attenuators showed that it had a tensile strength of 652 MPa. Mr Gillespie did not have those records when he prepared his reports. Using the factor of .35 to which Mr Gillespie referred, that would suggest that the SS304 used by Trox had a fatigue strength of about 228 MPa.
The results of fatigue assessment testing such as that carried out by Mr Gillespie may be reproduced graphically, in what is known as an S/N curve. That depicts stress amplitude in MPa (S) on the y axis and the number of cycles to failure (N) on the x axis.
S/N curves show, typically, that the rate of fatigue failure declines as the amplitude of the stresses reduces, until there is reached a “knee point” where the line flattens out. In essence, an S/N curve indicates that at the stress amplitude where the knee point occurs, the stresses (in MPa) are below the fatigue limit of the metal, so that fatigue failure is unlikely to occur.

The defects

There were several kinds of defect observed. They included the following:

the bullnose panels were secured by self-tapping screws. These proved to be inadequate. The panels fell off, in some cases causing further damage. A more durable fastening system was devised.

The bases of the sound attenuation panels were not adequately restrained against lateral movement. This was fixed by installing some system of cleats.

The differential air pressure acting on the resonator panels caused the outside panels to flex cyclically. This led to the development of fatigue cracks, in particular in the connecting plates referred to at [18] above. This was fixed by the installation of bracing.

The attenuator panels were not adequately secured or reinforced so as to prevent lateral movement. This too was fixed by bracing.

Trox did not dispute that its work was defective in these respects (to the extent that those defects were observed). It accepted that the work done to rectify those defects (which I have described in the broadest of outlines) was reasonable, and that the cost claimed for that work was reasonable. Trox did dispute that UGLR had incurred that cost, but this is a separate issue.
Because there is substantial agreement as to what parts of Trox’s work were and were not defective, it is unnecessary for me to deal with the defects at the level of detail that the parties thought was appropriate, and that is suggested by the formulation of the first issue.
In those circumstances, I propose to deal only with the disputed defects, which concern the Epping Road inlet attenuators and the Sirius Road outlet attenuators. Those attenuators did not fail. However, because Mr Gillespie considered, based on the failures that had occurred, that those attenuators were also likely to fail, UGLR caused to be carried out substantial works upgrading and strengthening them.
I should note that the description “Epping Road inlet attenuators” is a little too broad. As I understand it, this issue relates only to the stage 1 inlet attenuators at the Epping Road ventilation station. Nonetheless, it is convenient generally to do as Counsel (and for the most part, the experts) did, and refer simply to the “Epping Road inlet attenuators”.
Trox described the work done on the Epping Road inlet attenuators and Sirius Road outlet attenuators as “preventative work”. Mr Newlinds submitted that the question was not whether that work, when done, was reasonable; it was whether those attenuators, when supplied, were fit for purpose and had a minimum 20 year design life before that work had been performed.
The experts agreed, as to the Epping Road inlet attenuators, that those attenuators were subject to loads pushing the panels inwards, because there was a pressure differential between the moving air inside the splitter assembly and the stationary air outside it. Mr Gillespie said that the attenuators were of a similar design to the Sirius Road inlet attenuators, and thus (the Sirius Road inlet attenuators having failed well within the 20 year design life), it was both reasonable and necessary to modify the Epping Road inlet attenuators. In his view, because of the known failure of the similar Sirius Road inlet attenuators, it could not be said that the Epping Road inlet attenuators had a minimum design life of 20 years or were fit for purpose.
The Epping Road inlet attenuators were constructed of ZAM steel. So too were all other attenuators (including, specifically and relevantly, the Sirius Road inlet attenuators), with one exception. The exception is that the Sirius Road outlet attenuators were constructed using (more accurately, the panel frames comprised) SS304.
The Sirius Road outlet attenuators showed no sign of fatigue failure. Nonetheless, on Mr Gillespie’s recommendation, substantial modifications were performed. Again, Mr Gillespie said that this was necessary because otherwise their 20 year design life could not be assured.
Ultimately, the experts agreed that the upper sections of the Sirius Road outlet attenuators – the absorber panels and their frames – were not defective, and that they had not needed modification. Mr Gillespie said, based on his calculations, that he could not be satisfied that the lower, resonator, panels and their frames would achieve the required lifespan. Mr Marks disagreed. He said that the superior tensile strength, and consequent superior (in his view) fatigue strength, of SS304 compared to ZAM steel were such that the requirement for a 20 year design life was satisfied.
All the other defects were agreed, and so too were the costs incurred in their rectification. The costs incurred in the modifications of the Epping Road inlet and Sirius Road outlet attenuators were likewise agreed. However, for the Sirius Road outlet attenuators, there was disagreement as to the way in which the costs actually incurred should be apportioned between the work done on the absorber panels and the work done on the resonator panels.
UGLR sought to deal with that disagreement by relying on an affidavit of its employee, Mr Comfort, who had been the site supervisor for the rectification works on the attenuators. That affidavit was not produced until the day preceding the final hearing day. There was no explanation for the delay in producing it, given that the need for it must have been apparent from the start. SKM’s first report, of 18 September 2008, stated among many other things that “[t]he fatigue design life of the absorber panels [for the Sirius Road inlet attenuators] is expected to be acceptable”. There was nothing in the report of 20 October 2014 to suggest that Mr Gillespie had changed this mind on this point, although he said, for reasons that he gave, that the repairs were “reasonable and appropriate under the circumstances”.

Relevant provisions of the Trox subcontract

Clause 4.0 of the General Conditions of Contract (GCC) that formed part of the Trox subcontract stated that the “primary obligations” of Trox included to “perform and deliver the Supplies described in the Technical Specifications on the dates set out in the Price and Delivery Schedule”.
The expression “Supplies” was defined to mean “the physical works, equipment, goods and services which [Trox] must design, construct, manufacture, install, deliver and complete” under the Trox subcontract.
Despite the width of the definition of “Supplies”, cl 4.2 of the specification for the sound attenuators (which also formed part of the Trox subcontract, and by reference to which the “primary obligations” of Trox were imposed) stated that installation and commissioning of the attenuators was to be performed by others, as was the supply and installation of ventilation ductwork to contain the attenuators.
There are other provisions of the GCC that are relevant to subsequent issues, and I shall set them out later in these reasons.
The specification set out in cl 4.1.1 the design requirements, and confirmed in cl 4.1.2 that the obligation of Trox was to “supply and deliver the sound attenuators in accordance with the technical requirements in… this Specification”.
Clause 5.2 of the specification stated:

5.2 Design Life
The Equipment shall be fit for the purpose of long-term operation in the road tunnel environment and shall have a minimum design life of 20 years commencing on completion of Stage 1 and the opening to traffic of the LCT.

Clause 5.4 set out the requirements for construction of the attenuators. I set out those parts of cl 5.4 to which counsel referred in submissions:

ALSTOM is to be advised of the method of installation and necessary provision of guide/stop angle that will be required in order to cater for the splitter type attenuators. Drawings illustrating the required guide/stop angle dimensions and details on the method of attachment of the splitters to the ductwork/encasement are to be submitted by the Supplier. The Supplier shall provide all components required for the complete assembly of the Supplies.
Sound attenuators must be designed for easy installation and removal of individual splitter sections.
Where the splitters will be installed into concrete encasement, the Subcontractor shall co-ordinate with ALSTOM to verify dimensions prior to commencement of the splitter fabrication. The Subcontractor shall be aware of typical tolerances as listed in AS 3600 for Concrete Structures.
Sound attenuators shall be designed from hot-dip ZAM (Zinc-Aluminium-Magnesium) alloy coated steel sheeting and have corrosion resistance properties equivalent to hot-dip galvanizing to AS 4680 as a minimum.
…
For Sirius Road outlet attenuators, all components of attenuators including the perforated sheet shall be designed from 304 stainless steel.
…
For the Epping Road intake and Sirius Road mainline intake common attenuators, the Supplier shall ensure that the structural integrity of the attenuators is maintained when splitters are stacked on top of each other. The Subcontractor is responsible for supplying hot-dip galvanised structural steelwork (if required) to support the attenuators and fixings as necessary to enable complete installation of attenuators. The Subcontractor shall provide drawings showing installation details of these attenuators. The sizing of these attenuators is to be coordinated with ALSTOM during the attenuator design phase. The space available for these attenuators is detailed in the drawings that are referenced in Appendix A of this Specification.

First issue: defects

For the reasons I have indicated, it is not necessary to go to the detail of all the defects referred to in the parties’ statement of this issue. It is common ground that, save for the Epping Road inlet attenuators (in the sense explained above) and Sirius Road outlet attenuators, the attenuators that Trox supplied were defective, and that their design was inadequate to assure a minimum 20 year design life. It is thus common ground that, with the two exceptions I have identified, the attenuators were not fit for purpose.
I turn to the disputed alleged defects. In dealing with those suggested defects, I shall not summarise the full detail of the parties’ submissions. The lines of battle are clear enough, and the submissions addressed them appropriately and at length.

Epping Road inlet attenuators

UGLR’s position, based on Mr Gillespie’s evidence, was that there was no relevant distinction between the Epping Road (stage 1) inlet attenuators and the Sirius Road inlet attenuators, so that the deficiencies in design or construction that had manifested themselves in the latter attenuators were likely to affect the former. Mr Gillespie and Mr Marks had agreed that the Sirius road inlet attenuators did not achieve the required 20 year design life and, as installed, were not fit for their required purpose.
The problem confronting the experts was that the Epping Road inlet attenuators had not failed. Neither of them could explain why not. As I have noted, the Epping Road inlet attenuators were sealed in at both ends, so that physical inspection of the way that they had been installed (and perhaps braced) within the ductwork was not possible (or at least, not undertaken).
The experts expressed their position as follows [4] :

…
Mr Gillespie: The size and construction of the Epping Road Stage 1 inlet splitters is very similar to that of the Sirius inlet. Each installation is 5 panels high by 3 panels long with splitter design restraint provided only around the perimeter of the splitters (no mid-section restraint). The surface areas of the two installations are very similar, being 50m² for Epping Road and 51m² for the Sirius Road inlet. The maximum attenuator airway velocities are identical at 21.4 m/s… Given the near identical size, construction and airflow velocities, I consider the loads acting on the end panels of the Epping Road Stage 1 inlet would be near identical to that of the Sirius Inlet and as such I conclude that end splitters were not designed to withstand these loads as with my response to Question 6.
Mr Marks: I have not seen any evidence that splitters on inlet attenuators on the project were designed to withstand pressure differential loads and it appears that no provision was made for accommodating these loads. Given that the Epping Inlet attenuator did not deform on commissioning as occurred at Sirius Road, I do not agree the loads were the same unless the side panels have been restrained in some way that is not documented.
Consensus: As neither of the experts can explain the reason for the non-deformation of Epping stage 1, our opinions have diverged on this question.

4. Joint report dated 4/5 May 2017, answer to question 12.

The parties’ submissions

There was some disagreement between the parties as to the onus of proof. Mr Newlinds submitted that in the circumstances, neither expert being able to explain why the Epping road inlet attenuators had not failed before the recommended works were performed, UGLR had failed to show that they were not fit for purpose and did not have a minimum design life of 20 years.
Mr Ashhurst of Senior Counsel, who appeared with Mr Docker of Counsel for UGLR, submitted that because the design had been shown to be deficient (the same design having failed in the Sirius Road inlet attenuators), the onus of proof passed (I am not sure whether he meant in a legal or evidentiary or persuasive sense) to Trox. Mr Ashhurst relied on Mr Gillespie’s evidence as to the design deficiencies in the Sirius Road inlet attenuators, and on evidence given by Mr Marks.
One aspect of Mr Marks’ evidence on which Mr Ashhurst relied was the answer given by Mr Marks in the joint report to question 12. I have set that out at [66] above. Mr Ashhurst submitted that Mr Marks’ answer meant, in effect, that the splitters in the inlet attenuator were not designed to withstand the differential pressure loads to which they would be subjected in service.
Mr Ashhurst also relied on evidence given by Mr Marks in his expert report [5] :

1.6 In my opinion, the Epping inlet attenuator as supplied by TROX was fit-for-purpose and would have achieved the required 20 year design life. The rectification work undertaken to address potential deformation or bowing to the attenuator ductwork or case (where the static pressure differential may cause the ductwork or case to bow inwards and reduce airway widths as occurred with the similar Sirius inlet attenuator) was only necessary because of the inadequacy of the ductwork to withstand the pressure on the outer surface of the attenuator.
5. Report dated 7 July 2015 at para 1.6

Mr Ashhurst submitted that in this paragraph, Mr Marks had acknowledged that the Epping Road inlet attenuators were defective, and that his explanation for the existence or cause of the defect – alleged insufficiency of the ductwork – was no answer to UGLR’s claim. Mr Ashhurst relied upon, in particular, those sections of cl 5.4 of the specification that I have set out at [61] above. The argument on cl 5.4 was not developed in any full or adequate way either by Mr Ashhurst or by Mr Newlinds.
It was implicit in Mr Ashhurst’s submissions (and at one stage, I think, became explicit) that the requirement in cl 5.2 of the specification for “a minimum design life of 20 years” meant that Trox had been required to prepare a design showing how that life would be achieved. That is why Mr Ashhurst submitted that the evidence of Mr Marks, to the effect that he had not seen evidence that the splitters were designed to withstand the differential pressure loads[6] , was destructive of Trox’s case.

Decision

6. See his answer to question 12 in the joint report set out at [66] above.

There is a contrast between the almost immediate failure of the Sirius Road inlet attenuators and the continuing performance, for about four years, of the similarly designed Epping Road inlet attenuators. The experts are unable to explain that factual anomaly. However, they do accept that the Sirius Road inlet attenuators, as installed, did not achieve a minimum 20 year design life, and were not fit for their intended purpose.
There are two possible explanations for the factual anomaly. Mr Marks suggested that one of the reasons that the Sirius Road inlet attenuators had failed was “due to upstream turbulence created at the ventilation shaft transition” (the phenomenon to which I referred at [25] above). He said that had they “been installed within smaller duct sections or with improved stiffness and appropriately restrained… they… would have been fit for purpose”. As I understand it, upstream turbulence was not a problem with the Epping Road inlet attenuators.
Further, and specifically in relation to the Epping Road inlet attenuators, Mr Marks suggested that the fact that they were sealed at each end may have had some significance. However, as Mr Gillespie pointed out, the fact of sealing at both ends meant that there would be a stable and higher pressure outside the attenuator panels than inside (because the pressure of the moving air within the attenuators would be lower than the pressure of the hypothetically still air surrounding them).
Mr Gillespie’s calculations show that the design of the Sirius Road inlet attenuators was defective because the fatigue strength of the ZAM steel was lower than the level of stresses that were likely to be imposed upon it during service, and because the design provided no adequate bracing or other reinforcement for the ZAM steel panel frames. Put shortly, those frames lacked the strength to withstand the stresses to which they would be subjected in the course of operation, and were not braced or supported in such a way as to enable them to do so.
Mr Gillespie’s evidence shows that the same design deficiencies afflict the Epping Road stage 1 inlet attenuators. Mr Marks has not pointed to any difference in the design of the latter; indeed, as I have noted, he was unable to find any evidence that they had been designed to withstand the differential pressure loads to which they would be subject in the course of operation.
I accept that there may be some limitation upon the utility of a method of analysis that takes test results taken from one set of attenuators in one location, and applies them to other, untested, attenuators in another location. Its utility will depend upon, among other things, the extent to which (in design, construction, and pressure loads) the two sets of attenuators are comparable.
Where the designs and constructions of the attenuators being compared are the same, the analysis may be informative. The extent to which it is will depend on an assumption as to the loads acting on the untested attenuators. Presumably, in this case, it was not possible to take measurements of the strains operating near the joining plates in the Epping Road attenuators, because those attenuators were sealed at both ends.
Mr Ashhurst referred to and relied upon Mr Marks’ evidence [7] that:

“[t]he measurements performed using strain gauges are particularly unreliable given that they were not installed at the locations where the maximum strains (and hence stresses) are likely to occur” [8] ; and

“it would have been more appropriate to locate the strain gauges directly at the Nutsert holes”, which could “be performed by using microstrain gauges” [9] .
7. Report dated 7 July 2015 at paras 5.12 to 5.16 and 6.2 to 6.4.
8. Ibid at para 5.13.
9. Ibid at para 5.14.

Mr Gillespie did not completely agree with these aspects of Mr Marks’ evidence. Mr Gillespie said in his reply report [10] at para 58 that the strain gauges were located “at the edge of the nutsert at a position as close as they could be practically located” to “the point of maximum stress and fatigue crack initiation”, and that this is a recognised method where “access to the point of fatigue crack initiation cannot be achieved in practice”. Presumably, Mr Ashhurst’s reliance on Mr Marks’ evidence on this topic involves at least the implicit recognition that it is to be accepted over Mr Gillespie’s reply.
10. Report dated 20 October 2015, s 3: responses to Mr Marks’ report.
Mr Ashhurst submitted that the unreliability of strain gauge data is in fact a sound justification for taking a conservative approach based on those data and on calculations performed using them. There is some force in that submission in relation to the Epping Road inlet attenuators. However, for the reasons I shall give[11] , I do not accept Mr Ashhurst’s submission that this aspect of Mr Marks’ evidence justifies a similarly conservative approach to the assessment of the design life of the Sirius Road outlet attenuators.
11. See [100] and following.
As I have noted, Mr Ashhurst relied on Mr Marks’ answer to question 12 set out in the joint report (the answer is set out at [66] above). The effect of Mr Marks’ answer is that there is nothing in the documentation provided to him to suggest that Trox did design the inlet attenuators to withstand differential pressure loads. I think it is safe to assume that, if such documentation existed, it would have been given to Mr Marks.
The reference to a “design life” suggests to me that the design should be such that the equipment will function reliably for whatever is the duration of the specified design life. The designer must prepare a design that, if properly constructed, will achieve that. The absence of any specific evidence of design is not critical, but is a factor to be taken into account.
In my view, the failures of the Sirius Road inlet attenuators and the use of the same design and materials for the Epping Road inlet attenuators, coupled with the absence of evidence as to any relevant factual difference, strongly supports the inference that the weaknesses or defects that afflicted the failed Sirius Road attenuators were likely to afflict also the Epping Road inlet attenuators. Because there is no evidence of “design” apart from the fact of what was constructed, there is no basis for concluding that Trox somehow took into account or attempted to satisfy, in a way that is not apparent from the actual construction, the requirement for a twenty year design life.
Mr Gillespie’s evidence supports the conclusion that the design and, if it matters, construction of the inlet attenuators were defective. Mr Marks speculated as to reasons why Epping Road inlet attenuators may not have failed (see his answer to question 12 in the joint report, set out at [66] above). He would not accept that the loads on the side panels were the same, although he recognised that those panels would be loaded by differential pressures. To my mind, his evidence that “it appears that no provision was made for accommodating these loads” supports the conclusion that the design of the Epping Road inlet attenuators was defective.
I add to this the consideration that, so far as the evidence shows, there is nothing apart from the way they are sealed in the ductwork to distinguish the Epping Road inlet attenuators from the other, failed, inlet attenuators. And there is no evidence that the way those attenuators were sealed into the ductwork had any impact on their design life.
Taking all those matters into account, it is my view, on the balance of probabilities, that UGLR has shown that the Epping Road inlet attenuators, as installed, did not have a minimum 20 year design life. In reaching that conclusion, I take into account the fact that Trox has led no evidence of what it did in an attempt to prepare an appropriate design.

Sirius Road outlet attenuators

The fundamental factual difference between the Sirius Road outlet attenuators and the other attenuators is that the former were constructed using SS304, not ZAM steel, for the panel frames. And, as was the case with the Epping Road inlet attenuators, the Sirius Road outlet attenuators showed no sign of failure or fatigue cracking, before the recommended rectification work was done on them. The fundamental question for decision is: does the use of SS304 rather than ZAM steel make a difference?

The parties’ submissions

Mr Ashhurst submitted that Mr Gillespie’s analysis of the Sirius Road outlet attenuators and their defects was to be preferred to Mr Marks’. Mr Ashhurst submitted that Mr Gillespie had conducted appropriate testing and had analysed it according to accepted methodologies. More fundamentally, Mr Ashhurst submitted, Mr Gillespie had demonstrated experience in the field of design, whereas Mr Marks did not.
Accordingly, it is appropriate to start by looking at the way that Mr Gillespie investigated and analysed the defects. He did so first of all in 2008, when SKM was retained to investigate the defects and recommend the appropriate methods of rectification. That work continued over some years. Thereafter, when these proceedings were commenced, Mr Gillespie was retained to provide independent expert evidence. His report in chief included, among its appendices, the earlier (SKM) report prepared by him on 18 September 2008, and most of what follows comes from that earlier report.
Mr Gillespie took data from a published source, Johansson and Nordberg [12] . He considered S/N curve graphs constructed from that data: one at the mean and one at mean minus two standard deviations (SD). He then said [13] :

The [Johansson and] Nordberg mean -2SD data has been adopted for fatigue design evaluation purposes with an endurance limit at 184 MPa as this is the most applicable and conservative data for assessment of the Sirius Road attenuators.
12. References in para 5.2.1.1 of SKM’s initial report dated 18 September 2008.
13. Ibid.

Mr Gillespie also considered other published data, but ultimately rested on the Johansson and Nordberg data. There was no criticism of his reliance on Johansson and Nordberg’s data rather than on the other data to which he made reference, or of his adoption of mean minus two SD for the purpose of evaluating design life.
Mr Gillespie said that his calculated fatigue strength, or endurance limit, of 184 MPa was consistent with an application of his endurance ratio of 0.35 (see at [27], [39] above) to an assumed tensile strength of 515 MPa, which he thought was applicable to SS304. Mr Gillespie then considered what might be an appropriate stress scale factor. He thought that the factor of 2.9 emerging from his FEA calculations was too conservative and decided that a stress scale factor of 2.55 would be appropriate.
Mr Gillespie derived what he considered to be the appropriate stress scale factor from his FEA modelling of the data obtained from testing of the Marden Street attenuators. Two factors emerged from that modelling: 2.2 and 2.55. Mr Gillespie said that it was appropriate to adopt 2.55, the more conservative figure (because the calculated design life lengthens as the stress scale factor decreases), and to compare this to the stress scale factor of 2.73[14] , use of which suggested a design life of 20 years.
14. See at [37], [38] above.
By reference to his Figure 100 (reproduced at [37] above), Mr Gillespie said that at a design stress scale factor of 2.9, “a limiting fatigue design life of 6.3 years is estimated” [15] . He accepted [16] that “[f]or a stress scale factor of 2.55 a fatigue design life of approximately 100 years is indicated”. However, he said, that provided an insufficient safety factor on stress. Accordingly, Mr Gillespie concluded that the design did not meet his required safety factor of 1.2 (2.73/2.55=1.07).
15. SKM report of 18 September 2008 at para 5.3.2.
16. Ibid.
Mr Newlinds submitted that there were three fundamental problems with Mr Gillespie’s reasoning:

it was based on the wrong tensile strength, because the tensile strength of the SS304 was 652 MPa – substantially higher than Mr Gillespie’s assumed figure of 515 MPa;

it adopted an inappropriately high stress scale factor of 2.55, in circumstances where some test results (for the Marden Street attenuators) showed that a stress scale factor of 2.2 was indicated; and

it applied the factor of safety to the stress scale factor rather than to the required design life.

Mr Newlinds submitted, further, that Mr Gillespie’s evidence was affected by “confirmation bias”. I hasten to point out that Mr Newlinds did not submit that Mr Gillespie was guilty of conscious dishonesty. His submission was, rather, that the imputed confirmation bias was entirely subconscious.
Mr Newlinds pointed also to what he submitted were other unsatisfactory aspects of Mr Gillespie’s evidence, including:

what Mr Newlinds characterised as Mr Gillespie’s inappropriate refusal to acknowledge that using a higher tensile strength would invalidate his calculations;

his apparent abandonment of the endurance ratio of 0.35 and his choice of 0.27. Mr Newlinds submitted that this was “reverse engineering” designed to validate the outcome; and

Mr Gillespie’s refusal to acknowledge that the outcome of his calculations suggested that SS304 with his assumed (and incorrect) fatigue strength of 184 MPa was only 6% stronger than ZAM steel (for which he adopted a fatigue strength of 174 MPa), despite the fact that the very literature on which Mr Gillespie relied showed that stainless steel was typically 35% to 40% stronger than mild steel (ZAM steel is properly described as “mild steel”). As Mr Newlinds pointed out, that aspect of Johansson and Nordberg’s publication was confirmed by Mr Marks, who (unlike Mr Gillespie) has had substantial experience over the years in working with steels.

Decision

I start by making the point that the assessment of the expert evidence is to be based, so far as possible, on rational analysis rather than on considerations of demeanour. This is certainly and emphatically not a case where it can be said that either Mr Gillespie or Mr Marks consciously gave dishonest or misleading evidence or became an advocate for the party by whom he was called. See Bartlett v Australia and New Zealand Banking Group Ltd [17] at [73], citing Wiki v Atlantis Relocations (NSW) Pty Ltd [18] at [60].
17. (2016) 92 NSWLR 639.
18. (2004) 60 NSWLR 127.
I do however think that, to some extent and entirely subconsciously, Mr Gillespie was seeking to justify, in the course of his cross-examination, the conclusions that he had first expressed in 2008 when giving advice to UGLR about the defects and the proper method of their rectification. In my view, that unconscious but very real concern appears in his retreat from an endurance ratio of 0.35 to an endurance ratio of 0.27, and in his refusal to acknowledge that the results of his calculations suggest that the difference in strength between SS304 and mild steel is minimal, whereas in fact (as is shown by the literature on which otherwise he relied) it is substantial.
In my view, Mr Gillespie’s calculations are inherently unreliable. First of all, when applied in the manner that he said was appropriate, they suggested a stress scale factor of 2.9, which Mr Gillespie acknowledged was excessive. That of itself should have suggested that there was something wrong with either the calculations or the data on which they were based.
Next, Mr Gillespie assessed the design life by using a stress scale factor of 2.55 rather than the stress scale factor of 2.2 which was also suggested on his data (obtained from analysis of the Marden Street attenuators). Mr Gillespie acknowledged that he was being conservative. I agree that it is better for engineering designs to be carried out conservatively rather than adventurously. However, the piling of conservatism on conservatism is not necessarily appropriate; and yet this is the consequence of Mr Gillespie’s adoption of the higher stress scale factor of 2.55 and his insistence on applying a factor of safety of 1.2 to that higher factor.
Next, in my view, Mr Gillespie’s evidence as to the tensile and fatigue strengths of SS304, and the consequences of adopting the known values rather than the values he assumed (652/228 MPa and 515/180 MPa respectively) is confusing and unsatisfactory. Mr Gillespie said that his primary approach relied on the published data, and that his use of the endurance ratio was merely a check. There is no indication whatsoever, in any of his reports, that this is what he was doing. Nor is there an indication, in any of his reports, that it might be appropriate to use an endurance ratio of 0.27 (or indeed any ratio other than the 0.35 to which he had referred in the SKM report of 18 September 2008).
To my mind, reading Mr Gillespie’s evidence in cross-examination on this point in its entirety, the inescapable inference is that, as Mr Newlinds put to him, he was “reverse engineering” in an attempt to validate the calculated result that he had earlier obtained [19] .
19. See, generally, T109-144.
Again, in my view, Mr Gillespie’s evidence as to the comparative hardness of stainless steel and mild steel is confusing and unacceptable. The very data source that he thought was a sufficiently reliable base for his calculations came from a paper that, as he acknowledged, contained other data which suggested that stainless steel could be from 20% to 40% harder than mild steel [20] . Although Mr Gillespie acknowledged that everything he knew on this topic came out of books [21] , he was markedly disinclined to accept this particular aspect of the research by Johansson and Nordberg that he had found in other ways to be appropriate as a basis for his analysis.
20. T115.47-116.33.
21. T115.31-48.
I conclude that Mr Gillespie’s analysis of the fatigue limit for the Sirius Road outlet attenuators is fundamentally flawed, because it pays insufficient regard to the tensile strength of the SS304 that was used. In my view, Mr Gillespie recognised that, and his attempts to rationalise it resulted in the unacceptable evidence, as to the endurance ratio and as to the difference in strength between stainless steel and mild steel, to which I have just referred. In my view, these aspects of his evidence reflect the subconscious confirmation bias to which Mr Newlinds referred.
I turn to the “stress scale factor” issue. I think that this aspect also of Mr Gillespie’s evidence is flawed.
I start by observing that I do not understand why it is that stress scale factors suggested by FEA modelling of the failed Marden Street inlet attenuators, which were constructed using ZAM steel, are appropriate to be applied to the Sirius Road outlet attenuators, which are constructed from SS304. The former metal has a lower tensile strength and fatigue strength than the latter. Why are stress scale factors relevant to ZAM steel relevant also to the analysis of SS304? And how does one take into account, as part of the analysis, the higher fatigue strength of the SS304 that was actually used?
There is no real answer to these questions in Mr Gillespie’s evidence, so far as I understand it. There must be an underlying assumption that the forces acting on the two sets of attenuators are comparable, but this is by no means self-evident. For example, as Mr Marks pointed out (see at [25] above), there may be turbulence influences resulting from proximity to a bend or junction in the ductwork that affect one but not the other. But even if that assumption is made good, why is the “stronger” SS304 not able to withstand those forces?
Leaving that point aside, I think that this aspect of Mr Gillespie’s evidence demonstrates an overly conservative and unacceptable method of analysis. The graph that he prepared (reproduced at [37] above) shows that, at a stress scale factor of 2.55, the design life is approximately 100 years. Mr Gillespie asserted that it was necessary to take a conservative approach because, as his graph shows, a small increment in the stress scale factor may have a very significant impact on the expected design life. That may be so. However the task was to produce an appropriately conservative design for a minimum 20 year design life, not to design for an infinite life.

When Mr Gillespie calculated the factor of safety, he did so by comparing the stress scale factors of 2.73 and 2.55 [22] . As he pointed out, that suggested a safety factor of 1.07. If however the stress scale factor of 2.2 (one of the factors that emerged from his testing of the Marden Street attenuators) is used, the safety factor is 1.24 (2.73/2.2 = 1.24). Mr Gillespie did not explain, in a way that I thought acceptable, why this was not sufficient, particularly given the higher fatigue strength of SS304.
22. SKM report of 18 September 2008 at 5.3.2.
I repeat that in my view, Mr Gillespie’s approach piles conservatism on conservatism. It does not account for the conservatism inherent in the use of the stronger metal. It is, in my view, unacceptable. I agree with and accept Mr Marks’ criticism to that effect.
I turn to the “factor of safety” issue. Mr Gillespie denied, vigorously, that safety factors should be applied to design lives rather than (in the particular case) stress scale factors [23] . Mr Gillespie said, and I am prepared to accept, that “there’s no way in the world that you would ever apply a 20% safety factor on life” [24] . However, this is not to the point.
23. See generally T119.15-121.14.
24. T121.18-.19.
Mr Gillespie referred to a Code “where they do look at factors on life and we’re talking factors of safety of 5 or more on life” [25] . The obvious inference from this evidence is that the code to which Mr Gillespie referred – the American Society of Mechanical Engineers, or ASME, Code – does validate a design approach that utilises “factors of safety of 5 or more on life”.
25. T121.20-.21.
Using Mr Gillespie’s preferred stress scale factor of 2.55, that is the precise outcome: the design life of 100 years indicated for that stress scale factor is 5 times the 20 year design life at a stress scale factor of 2.73. I do not understand how it can be said that designing on that basis is not designing appropriately for a minimum 20 year design life.
In my view, this aspect of Mr Gillespie’s evidence is unpersuasive. So far from validating his approach, it seems to me to undermine it very substantially.
I conclude that UGLR has failed to show any breach in relation to the Sirius Road outlet attenuators. Otherwise, the first issue should be answered “yes”.

Second and third issues: UGLR’s suggested contractual rights

Relevant contractual provisions

The powers that UGLR claimed to have, and to have exercised, arise under cl 19 of the GCC in the Trox subcontract. That clause reads as follows:

19.0   GUARANTEE AND INDEMNITY
a)   The Supplier hereby guarantees the Supplies against any omissions or defects or other failures arising in whole or in part from faulty design, materials or workmanship, or any other omissions, defects of failures which render them unsuitable for the Purchaser’s requirements, which occur at any time from the date of Acceptance of the Supplies until the end of the Defects Correction Period set out in Schedule 3 of the Special Conditions, notwithstanding that such omissions, defects or failures come to the attention of the Purchaser at any time after expiry of that period.
b)   Pursuant to class 19 (a) the Supplier shall, at the option of the Purchaser:
~~i)   refund the Price of; or~~ deleted
ii)   repair, modify or replace at the Supplier’s expense,
Supplies which are unsuitable for the Purchaser’s requirements; and
iii)   provide again Supplies which in the reasonable opinion of the Purchaser are not supplied in accordance with the Contract; and
iv)   the Supplier shall be liable for all reasonable resulting costs and expenses incurred by the Purchaser, including but not limited to, where appropriate, those costs and expenses incurred by the Purchaser in obtaining the Supplies, returning them to the Supplier, re-installing and recommissioning them.
c)   The Purchaser acknowledges that pursuant to clauses 19 (a) and (b) the Supplier shall be given the opportunity to repair, modify, replace and/or provide again Supplies before the Purchaser undertakes any of the work or has carried out by a third party. However, if the Supplier does not commit to and effect, or in the reasonable opinion of the Purchaser is incapable of carrying out repairs, modifications or resupply within a reasonable time the Purchaser may, at its option, have the repair, modification or replacement or re-provision of the Supplies referred to in clause 19 b) undertaken by a third party or undertake the repair, modification, replacement or re-provision itself, and all resulting costs and expenses shall be borne by the Supplier. The period of time which is to be deemed reasonable in relation to this clause shall be decided by the Purchaser, acting reasonably.
d)   The Supplies will be returned by the Purchaser to the Supplier’s nominated Sydney address for any work to be carried out pursuant to clause 19 and re-installed by the Purchaser after the work has been completed. Freight from the Construction Site to the Supplier’s nominated Sydney address shall be the Purchaser’s responsibility. Freight from the Supplier’s nominated Sydney address shall be the Purchaser’s responsibility. Freight from the Supplier’s nominated Sydney address to the Construction Site shall be the Supplier’s responsibility. For all other items the Supplier shall be responsible to attend the site at which the Supplies are installed and perform the work at that site or arrange and pay for the removal of the equipment which form part of the Supplies to a suitable workplace and subsequent reinstatement of the equipment on site.
e)   ~~The Supplier shall be liable to the Purchaser for any special, consequential, direct or indirect loss,~~ damage, harm or injury suffered by the Purchaser or any other person caused by or in any way connected with a failure to provide the Supplies in accordance with the Contract and herby indemnifies the Purchaser in respect of any such less, damage, harm or injury; Replaced with: The Supplier shall be liable to the Purchaser for any loss, damage, or injury; suffered by the Purchaser or any other person caused by or in any way connected with a failure to provide the Supplies in accordance with the contract and hereby indemnifies the Purchaser in respect of any such loss, damage, harm or injury.
f)   this clause 19 is subject to clause 27.

The words that have been struck through were struck through on the executed version of the contract, and the words shown in bold were written in by hand on the executed version of the contract.
Clause 27 provided for a limitation of liability:

27.0 LIMITATION OF LIABILITY
All warranties, conditions, promises, undertakings, covenants and other provisions implied by law relating to the Supplies or their provision and/or delivery form part of the Contract and these Conditions do not exclude, restrict or modify the application to the Contract of any provision of the Trade Practices Act 1974 (Cth) or State Fair Trading Acts or their equivalents.

The key provision of the sale contract that was debated between the parties is cl 29. However, before turning to cl 29, it is necessary to note that:

by cl 3.2, title to the assets the subject of the sale remained with Alstom until completion, and vested in UGLR on and from completion;

by cl 6.1, Alstom was required in effect to ensure that all its subsidiary companies continued to carry on their businesses “in the ordinary course”; and

by cl 8.1(g), Alstom was required, after completion and at UGLR’s request and cost, to inform its customers of UGLR’s contact details.

Against that background, cl 29 reads, so far as it is relevant, as follows:

29.1   Subject to clause 30 and any implementation action described in Schedule 33 to Schedule 36, the Seller agrees to:
(a)   novate each Contract; or
(b)   assign each Contract; or
(c)   otherwise provide the benefit, subject to the burden, of each Contract to the Purchaser by subcontracting or otherwise.
The election between such novation, assignment or subcontracting or any other arrangement is to be consented to by the Purchaser (with such consent not be unreasonably withheld). The Purchaser agrees to accept the novation or assignment or the provision of the benefit of the Contract by subcontracting, or otherwise of, each Contract with effect on and from the Completion Date, subject to the Parties obtaining any necessary consent of the relevant counterparties to each Contract.
29.3   Up to Completion, the Seller must use its reasonable endeavours to obtain the consent of each counterparty to the Contracts. If consent has not been obtained as at Completion then, after Completion, the Seller must provide reasonable assistance to the Purchaser obtain the consent of each counterparty to the Contracts. In respect of the direct agreements referred to initialled paragraph 1.1(a)(ii) of the definition of Contracts, the Seller agrees that the instruments used for novation of those Contracts will be substantially in the form set out in Annexure 1.
29.4   In the period (if any) from the opening of business on the Completion Date until the particular Contract has been novated, assigned, subcontracted or otherwise to the Purchaser or has terminated to the extent it lawfully can (including, if there is no other course of action available to the Purchaser, the Contract being carried out in the Seller’s name if the Seller so consents), the Purchaser must pay, perform and discharge all of the obligations of the Seller under the Contract (including the return or relinquishment to a third party of any confidential information, know-how or technical data which may come into the possession of the Purchaser which the Seller is obliged by law or contract to return or relinquish to that party) and must indemnify the Seller against any Loss and Claims arising from any breach of the contract and the Seller must to the extent legally possible permit the Purchaser to receive and must promptly account to the Purchaser for all the proceeds and benefits arising from the Contract.
29.5   The Purchaser acknowledges that the provisions of each Contract may:
(a)   prohibit or otherwise restrict the ability of the Seller to assign or novate to the Purchaser any of its rights under the Contract;
(b)   prohibit disclosure to the Purchaser of any information relating to the Contract, including the existence of the Contract and its provisions; and
(c)   entitle a party to the Contract to terminate the Contract as a result of any transaction evidenced or contemplated by this Agreement.

It was common ground that neither cl 30 nor schedules 33 to 36 had any relevance in this case.
The remaining contractual provisions said to be relevant are found in the deed of assignment. The parties referred to cls 2, 3 and 8.2. I set them out:

2   Assignment
Effective on and from the Assignment Date, ALSTOM Australia assigns all of its right and interest in the Contract together with the benefit of the covenants contained in the terms of the Contract to UGLR and UGLR accepts the assignment from ALSTOM Australia.
3   Performance of assigned Contract
After the Assignment Date, UGLR must, to the extent it lawfully can, pay, perform and discharge all of the obligations of ALSTOM Australia under the Contract (including the return or relinquishment to a third party of any confidential information, know how or technical data which may come into the possession of UGLR which ALSTOM Australia is obliged by law or contract to return or relinquish to that party) and must indemnify ALSTOM Australia against any Loss and Claims arising from any breach of the Contract and ALSTOM Australia must to the extent legally possible permit UGLR to receive and must promptly account to UGLR for all the proceeds and benefits arising from the Contract.
8.2   Severance
If a provision of this Deed would, but for this clause, be unenforceable:
(1)   the provision will be read down to the extent necessary to avoid that result; and
(2)   if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of this Deed.

As I have noted, UGLR accepted that, despite the wording of cl 2, the assignment was effective only from the date of the deed: 11 March 2013.

The parties’ submissions

Mr Ashhurst put UGLR’s case in three ways. Mr Ashhurst’s submissions on cl 29 overlapped with, and to an extent incorporated, his submissions on the trust and assignment issues [26] . I propose to take a similar course, because those issues raise common questions.
26. Trust: issues 21 and following; assignment: issues 8, 19.
First, Mr Ashhurst submitted, on the proper construction of cl 29.4 of the sale contract, Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract. That agency arose expressly, Mr Ashhurst submitted, from the language used in cl 29.4. He submitted that the authority given by that clause on its proper construction extended to authorise UGLR to do all acts which were necessarily or ordinarily incident to the express authority.
Alternatively, Mr Ashhurst submitted, Alstom effectively vacated the scene, and left it to UGLR to administer and perform the various “Contracts” that were among the assets sold to UGLR. Alstom did not impose any limitation on the way in which UGLR might do that. Accordingly, Mr Ashhurst submitted, there was “implied actual authority by acquiescence”. He referred to Equiticorp Finance Ltd (In Liq) v Bank of New Zealand [27] .
27. (1993) 32 NSWLR 50 at 134.
Alternatively again, Mr Ashhurst submitted, if in some way UGLR had exceeded whatever were the limits of the authority given to it by cl 29 of the sale contract, the acts that it did in excess of that authority were ratified by cl 3 of the deed of assignment.
Mr Ashhurst advanced two other arguments. One was that, on the proper construction of cl 29, Alstom became a trustee of its rights under the various Contracts, and held those rights for the benefit of UGLR, so that UGLR was entitled to enforce them. The other was that Alstom in its own right would have been able to secure specific performance of Trox’s obligations of indemnity under the Trox subcontract, and that in some way this persisted for the benefit of UGLR. To the extent that I understand this last formulation of the way in which UGLR put its case, I do not think that it was pressed [28] .
28. T166.30-.40.
Mr Newlinds submitted that cl 29.4 had no relevant operation. First, he submitted, it was intended only to cover the situation where, after completion of the sale contract, no novation, assignment or other arrangement had occurred because of something covered in cls 29.2 or 29.3. In this case, that never happened; all that seems to have happened is that prior to 2013, Alstom and UGLR never turned their minds to the implementation of cl 29.
Next, Mr Newlinds submitted, cl 29.4 was not engaged because, in terms, it only operates, in the absence of novation, assignment or other arrangement, “if there is no other course of action available to [UGLR]”.
Even if cl 29.4 were engaged, Mr Newlinds submitted, it did not confer on UGLR any of Alstom’s rights and powers under the Trox subcontract, or make UGLR Alstom’s agent for the purposes of that subcontract. He submitted, in addition, that to the extent that Alstom had discretionary powers under cl 19 of the Trox subcontract, they were powers to be exercised by it personally, not powers that could be delegated to some putative agent.
Mr Newlinds submitted that there was no ratification. Clause 3 of the deed of novation said nothing about ratification. There was no suggestion that Alstom had any, let alone full, knowledge of what it was supposed to have ratified, and there was no statement by Alstom of its acceptance of the acts that it was purportedly ratifying. As to the suggestion that Alstom held its rights under the Trox subcontract on trust for UGLR, Mr Newlinds submitted that there was no clear language of any intention to create a trust, and no basis on which that intention should be imputed to the parties. He relied on Korda v Australian Executor Trustees (SA)Ltd [29] .
29. (2015) 255 CLR 62.

Decision

It is convenient to start with the suggested trust, and then to turn to the question of assignment. As I have said, I take that course since this is a way that Mr Ashhurst addressed the issues, in his oral submissions, and the questions do overlap to some extent.
Several of the judgments in Korda make it clear that, where a written agreement is said to create a trust, the process of determining whether there is the necessary intention to create a trust is to be performed by construing the document, in its context, in the usual way. French CJ said[30] :

The process of ascertaining whether the necessary intention to create a trust should be imputed is one of construction of the relevant text or oral dealings in their context. What was said in Bahr v Nicolay [No 2] should not be misconstrued. A trust is not to be inferred simply because a court thinks it is an appropriate means of protecting or creating an interest.
30. At [11].

Gageler J said[31] (omitting citations):

Where there is no reason to consider that parties entering into a contract have not said what they meant or meant what they said, an express term in the contract that one party is to hold property on “trust” for another party, or for a third party, will be recognised and enforced in equity as a trust. Conversely, where parties to a contract have refrained from contractual use of the terminology of trust, an intention to create a trust will be imputed to them only if, and to the extent that, a trust is the legal mechanism which is appropriate to give legal effect to the relationship, between the parties or between a party and a third party, as established or acknowledged by the express or implied terms of the contract. The question is whether recognition and enforcement of a trust is appropriate to give effect in law to entitlements and obligations which the parties, according to ordinary principles of contractual interpretation, can be taken together to have intended to exist in fact. Those cases in which one party takes action beyond the terms of a contract sufficient to manifest a unilateral intention to constitute a trust can for present purposes be put to one side.
31. At [109].

Keane J said[32] that the language of the document “is not to be strained to discover an intention to create a trust”. By reference to earlier authority[33] , Keane J adopted the proposition stated by du Parcq LJ[34] that “unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case… the court ought not to be astute to discover indications of such an intention”.
32. At [208].
33. Byrnes v Kendle (2011) 243 CLR 253 at [49] (Gummow and Hayne JJ); Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618 (Mason CJ and Dawson J).
34. In In Re Schebsman; Ex parte Official Receiver v Cargo Superintendents (London) Ltd [1944] Ch 83 at 104.
In Jessup v Queensland Housing Commission [35] McPherson JA (with whom Davies JA and Philippides J agreed) made the point [36] that where it would have been simple for the parties to a written contract to create a trust, and where in express terms they did not do so, the court should be suspicious of arguments based on the detail of the language that the parties chose to use (this is a somewhat free paraphrase of his Honour’s words).
35. [2002] 2 Qd R 270
36. At [8] – [9].
The approach taken in Jessup was cited with approval by Keane J in Korda [37] .
37. At [227] - [229].
In my view, there is no basis for the implication of a trust. The parties did not use the language of trust. It would have been easy for them to do so. Nor is there any reason, based on commercial necessity, to imply a trusty. It cannot be said that “a trust is [the] legal mechanism which is appropriate to give legal effect to the relationship… between the parties”[38] .
38. To adopt the formulation of Gageler J in Korda at [109].

The objective that, clearly, the parties sought to achieve by cl 29 of the sale agreement could have been achieved in the very manner indicated: by procuring assignments or novations of the various Contracts, or (if necessary) by making other arrangements, including subcontracting, that would give the benefit of those Contracts to UGLR. Had the parties done what cl 29.1 contemplated, there would be no question of trust. The fact that they forgot (so far as the evidence shows) to do so cannot supply a reason based on necessity to justify such an implication.
As to ratification, Mr Newlinds’ submission is correct. There are no words of ratification in cl 3 of the deed of assignment, and no possible basis on which, by following the ordinary principles of construction of commercial contracts, some objective intention to ratify could be spelled out of the words used.
I turn to the more difficult question, which is whether, one way or another, cl 29.4 on its proper construction made UGLR Alstom’s agent for the purpose of administering and performing, among other Contracts, the Trox subcontract.
The fundamental commercial object that Alstom and UGLR sought to achieve by cl 29 of the sale contract is clear enough. The clause was designed to ensure that UGLR, as the purchaser of Alstom’s business, got the benefit of all Contracts that Alstom had made in the ordinary course of and for the purposes of conducting that business. It would seem that those Contracts included contracts entered into by subsidiaries of Alstom, but nothing of present significance turns on this, and it may be put to one side.
The next point to note about cl 29 is that it contemplated several ways in which Alstom might give the benefits of those Contracts to UGLR, and gave Alstom the right to choose which of those methods to adopt in any particular case. Alstom could choose to novate or to assign, or otherwise (including by subcontracting) to provide the benefit of, a Contract to UGLR.
Unless any Contract contained some particular provision to the contrary, Alstom could not assign or novate without the consent of the counterparty. The same could perhaps be correct of any other means (including subcontracting) chosen by Alstom to give the benefit of a particular Contract to UGLR (for example, if the method chosen was one prohibited by that particular Contract). The concluding words of cl 29.1 recognised this problem. Clauses 29.2 and 29.3 set out the responsibilities of Alstom and UGLR as to overcoming the problem.
Up until Completion, Alstom was required to use its reasonable endeavours to obtain counterparty consent (cl 29.3). After Completion, it was UGLR’s responsibility to do so (cl 29.2). Against that background, cl 29.4 deals with the situation that the parties would have foreseen would exist after Completion of the sale contract but before the conclusion of novation or assignment, or the effecting of other arrangements in relation to, Contracts.
No doubt, the parties understood (and, objectively, intended) that cl 29.4 would be necessary only until the results of their joint endeavours under cls 29.3 and 29.2 procured a satisfactory outcome: novation, assignment, or the making of other adequate arrangements to give the benefit of all the Contracts to UGLR. But I am not sure (if Mr Newlinds so submitted) that it was in effect a precondition to the operation of cl 29.4 that Alstom and UGLR should have performed, or attempted to perform, their obligations under cls 29.3 and 29.2. If it were a precondition, there is no evidence that either of them took any step whatsoever in satisfaction of those obligations. However, I do not propose to decide the “agency” argument on that basis.
Both linguistically and functionally, it seems to me, cl 29.4 can be broken down into four component parts (in saying that, and in what follows, I leave out of consideration the second group of parenthesised words):

the first part (“In the period… has terminated”) defines both the period of time during which cl 29.4 operates and, by implication at least, the factual circumstances in which it would be required to operate.

The second part (“to the extent it lawfully can… under the Contract”) imposes on UGLR an obligation after Completion to “pay, perform and discharge” Alstom’s obligations under each Contract.

The third part (“and must indemnify… breach of the Contract”) protects Alstom against claims arising from UGLR’s performance of its obligations under the second part.

The fourth part (“the Seller must… arising from the Contract”) obliges Alstom to ensure, one way or another, that UGLR gets “the proceeds and benefits” of each Contract before the completion of novation, assignment, or whatever else was done to satisfy cl 29.1.

There is nothing contentious about the first part of cl 29.4, apart from Mr Newlinds’ submission that the parties could not have intended, by those words, to accept that cl 29.4 would operate effectively for a period of time limited only by the termination or other discharge of each Contract. It may safely be assumed that the parties did not, subjectively, intend cl 29.4 to operate for such a period of time. But that is because, subjectively, the parties intended, through cls 29.2 and 29.3, to take effective steps to provide to UGLR the benefit of all those Contracts. That they did not do so does not seem to me to bear on the proper construction of the first part of cl 29.4.
I referred at [151(1)] above to the first part of cl 29.4 stating, by implication at least, the factual circumstances in which it was required to operate. I should make it clear that by this, I mean no more than that cl 29.4 would have work to do in the period between Completion of the sale contract and the novation, assignment etc of the Trox subcontract and other Contracts. I should not be taken to have accepted Mr Newlinds’ submission that, as a matter of construction of cl 29.4, its operation was limited to the period during which cls 29.2 and 29.3 operated. Nor should I be taken to have indicated that, as a matter of construction of cl 29.4, it could only operate while the parties were setting about the business of novating, assigning, etc.
UGLR and Trox disagreed as to whether cl 29.4 operated only “if there is no other course of action available to the Purchaser”. As I have noted, Mr Newlinds submitted that this was a condition precedent to the operation of cl 29.4, and had not been satisfied. On the evidence, it is clear that any such precondition (if that is the correct construction of cl 29.4) had not been satisfied in fact. Clause 29.1 set out the various courses of action available to the parties. There is no evidence that any of the courses of actions there described was, for any reason, unavailable.
As a matter of fact, there could have been no problem with UGLR’s performing some of Alstom’s obligations under any particular Contract. For example, UGLR could receive (either direct, or from Alstom) payment claims, could assess them, and could pay the amount assessed to be due. To the extent that the counterparty accepted the assessment and payment in satisfaction of the payment claim, that would effectively discharge Alstom’s liability to make the payment. There may be other obligations of Alstom under a particular Contract that effectively UGLR could perform: for example, agreeing to the release of any security given under that Contract.
The significant point is that the second part of cl 29.4 talks of the performance of Alstom’s obligations under Contracts. It says nothing as to the exercise of Alstom’s powers or discretions (such as the “option” given by cl 19.0(b) of the Trox subcontract). Nor, at least in the absence of express words (as to which there was no evidence), could any counterparty to a Contract be compelled to accept UGLR’s exercise, in its own name, of some such power or discretion. That no doubt is why the second part of cl 29.4 expressly contemplated that after Completion, UGLR might, with Alstom’s consent, carry out a Contract in Alstom’s name.
It is in this context that the words “if there is no other course of action available to [UGLR]” are important. In a factual sense, it would have been always open to UGLR, in a mechanical fashion, to perform and discharge many of Alstom’s obligations under any Contract. But if the word “obligations” is construed to extend to powers and discretions given to Alstom as the principal under a Contract, there arises the difficulty that I have mentioned. The counterparty might not accept UGLR’s right to exercise the power or the discretion. In that case, if there were no other course available and if Alstom consented, UGLR could act in Alstom’s name.
In that limited and conditional sense, I think, cl 29.4 can be construed as conferring some agency function on UGLR. But that agency function could only arise where it is necessary to enable UGLR to pay, perform and discharge Alstom’s obligations under a particular Contract (leaving aside the question, whether “obligations” extends to powers and discretions), and where there is no other course of action available.
In the present case, as Mr Newlinds pointed out, there was another course of action available: that (or those) contemplated by cl 29.1. There is no evidence that the parties had initiated, let alone exhausted, the various ways contemplated by cl 29.1 of providing the benefit of any Contract (including the Trox subcontract) to UGLR. Nor is there any evidence that any of the cl 29.1 mechanisms, having been initiated, failed, whether because of refusal by a counterparty to a contract to agree, or for any other reason.
In those circumstances, to the extent that the second part of cl 29.4 can be construed as authorising some form of agency, it does so upon a condition that has not been shown to have been satisfied.
Having reached that conclusion, it is not necessary to decide whether the word “obligations” where used in cl 29.4 extends beyond its obvious meaning of “obligations imposed on Alstom” under a Contract and covers, as well, powers or discretions given to Alstom.
The third part of cl 29.4 is uncontentious.
I turn to the fourth part of cl 29.4. That part seems in effect to state in words what would otherwise be an implied obligation on Alstom (implied on the principles explained in Mackay v Dick [39] ) to do what is necessary to be done on its part for giving effect to the sale contract. The sale contract required Alstom to give UGLR the benefit of the Contracts. Although it specified a mechanism for doing that, it recognised that the mechanism might take some time to operate. In the interim (whether it be long or short), Alstom was expressly required to do what it could to give the benefit of the Contracts to UGLR and to account to UGLR, for whatever proceeds or benefits under any Contract might have been paid or provided to Alstom.
39. (1881) 6 App Cas 251; see in particular Lord Blackburn at 263.
It is stretching the language of the fourth part of cl 29.4 to say, in effect, that it amounts to the grant of an agency or power of attorney, for UGLR to act in Alstom’s name for the purpose of performing and administering any Contract. In the second part of cl 29.4, where the parties expressly contemplated that UGLR might do things in Alstom’s name, Alstom’s consent was required. It would be strange if, in the fourth part of cl 29.4, the parties had agreed that UGLR might act as Alstom’s agent without any requirement for consent.
Mr Ashhurst submitted that the words “proceeds and benefits” in the fourth part of cl 29.4 extend to include all the powers and discretions given to Alstom under the terms of any Contract. I do not agree.
The last part of cl 29.4, stripping out presently unnecessary verbiage, obliges Alstom to account promptly to UGLR for all the proceeds and benefits arising under any Contract. The immediately preceding obligation in that part requires Alstom, so far as it can, to permit UGLR to receive those proceeds and benefits.
To my mind, the use of the verb “account” makes it plain that the “proceeds and benefits” in question are the consideration, in cash or kind, that Alstom was entitled to receive under any Contract. It is a strained and unnatural use of language to regard “proceeds and benefits” as including the right to exercise powers or discretions given to Alstom by any Contract. Clause 29.4 works perfectly when the words in question are given their ordinary meaning. There is no reason for distorting them as, in effect, Mr Ashhurt’s submission would require.
I accept that what is required is to consider the construction and effect of cl 29.4 read as a whole, and read in its contractual context. The reason for considering it, part by part, is that Counsel, in particular Mr Ashhurst, approached it thus (although their subdivisions were less particular). When one puts cl 29.4 together, and looks at it as a constituent part of cl 29, the following points emerge:

the commercial purpose of cl 29 was to ensure that UGLR got the benefit of Contracts;

the primary way by which that was to happen was set out in cl 29.1 (which itself involved three specified alternatives and whatever else might be included under the words “or otherwise”);

Alstom was to decide how to give the benefit of any Contract to UGLR, with UGLR’s consent (not to be unreasonably withheld);

clauses 29.3 and 29.2 spelled out what it was that each of Alstom and UGLR were to do, before and after Completion, to ensure that any consents required for novation, assignment, subcontracting or any other arrangement were obtained; and

clause 29.4 provided what was to happen in the period between Completion and the novation, assignment or subcontracting of, or the making of other arrangements for, each Contract.

It may be accepted, I think, that if it proved to be impossible to give effect to one of the express courses described in cl 29.1 (for example, because a counterparty to a particular Contract withheld its consent), then, under the facultative words “or otherwise”, Alstom could have taken some step such as appointing UGLR as its agent for the purpose of administering and performing the contract, or working together with UGLR to ensure that acts were done in Alstom’s name but at UGLR’s direction, to provide the benefit of that Contract to UGLR. Put less verbosely, it may be accepted that under cl 29.1, Alstom and UGLR could have made arrangements ad hoc to give the benefit of any particular Contract to UGLR.
In those circumstances, to construe cl 29.4 as conferring some wide-range agency, or authorising, without reference to the circumstances of any individual Contract, some loose and non-specific arrangement that could be activated whenever it suited UGLR to do so, seems to me to be inconsistent with the careful scheme constructed by cl 29. In effect, UGLR’s submission is that the parties, having agreed on a detailed mechanism for providing the benefit of Contracts to it, must be taken objectively to have intended, also, that they could ignore that scheme, and that UGLR could do what it wished, relying on the provisions of cl 29.4. That does seem to me to involve an element of reverse engineering: straining the words of cl 29.4 to suit the circumstances that appear to have happened rather than the circumstances that, objectively, the parties contemplated would happen.
Further, if Alstom and UGLR had intended and agreed that the latter should be able to act as the former’s agent in relation to any Contract, it would have been very easy for them to say so. They did not. Perhaps they thought it was not necessary, because such an agreement could have been agreed upon ad hoc under the “or otherwise” provision in cl 29.1(c). But if that is, objectively, what they intended then, again, it tells against the strained reading of the words in cl 29.4 for which UGLR contended.
I referred at [129] above to Mr Ashhurst’s submission invoking what he called “implied actual authority by acquiescence”. He referred to the judgment of Clarke and Cripps JJA in Equiticorp Finance Ltd (In Liq) v Bank of New Zealand [40] at 132–133. Their Honours were there concerned to distinguish between actual and ostensible authority. They pointed out that actual authority arises where a principal grants, and an agent accepts, authority for the agent to perform specified tasks on behalf of the principal. Their Honours added that even if there is no express agreement, the conduct of the parties may have been such “that it is proper to infer that the relevant authority has been conferred on the agent”.
40. (1993) 32 NSWLR 50.
I do not accept that the factual situation in this case can be analysed in that way. Alstom had sold its Business, including the benefit of Contracts, to UGLR. Trox was notified of that on 16 September 2005, although the form of notification was misleading (I do not suggest, intentionally so). An email sent on 22 September 2005 (from “United Group Infrastructure” (UGI), not UGLR) notified Trox as follows:

As you may be aware, over the last few months [Alstom] has been undertaking the sale of its… businesses in Australia and New Zealand to United Group Limited. This sale process was completed on Friday 16 September and [Alstom] Engineering Systems Division, which has responsibility for the various infrastructure projects is now known as United Group Infrastructure Pty Ltd. Contact details for former [Alstom] staff remain unchanged…

I might add that the state of confusion appears to have increased rather than diminished. On 21 February 2007, another email from UGI to Trox stated, among other things, that:

United Group Rail Pty Ltd t/as United Group Infrastructure (formerly Alstom Australia) (‘UGL’) and Trox entered into an agreement… dated 2 September 2005, in which Trox undertook to supply attenuators for the ten fan ventilation stations to UGL for the LCT Project…

Mr Ashhurst did not contend that this interpretation of the legal effect of the sale contract was correct. It is, to put it mildly, surprising that UGLR should have misunderstood, in such a fundamental way, the effect of a contract under which it spent in excess of $210 million (subject to adjustments) to buy Alstom’s Business. But that is a side issue.
The real point is that the inescapable import of the two emails was that Alstom had stepped out of the picture and UGI (or, perhaps, UGLR) had taken over. In effect, (although Trox could not have known this), the emails are consistent with Alstom and UGLR performing, or having already performed, their cl 29.1 obligations. In those circumstances, the emails could not be consistent with Alstom’s retaining any authority as principal that it could grant, either expressly or by inference, to UGLR (or, for that matter, UGI) as agent. The facts on which Mr Ashhurst relied in support of this submission are quite inconsistent with the proposition that there was any function that could be the subject of a grant of agency.
In view of my conclusions on agency, it is not necessary to consider Mr Newlinds’ submission that, in any event, contractual discretions are not capable of being delegated to an agent.
I conclude that, however the argument is put, cl 29 generally, and cl 29.4 in particular, did not operate to appoint UGLR as Alstom’s agent (with the specific and limited exception of the second part of cl 29.4), nor to delegate to or vest in UGLR Alstom’s rights and discretions under cl 19.0 of the Trox subcontract. The specific and limited exception to which I referred can be put to one side because, as I have said, the factual situation in which it might operate did not arise.
It must follow that, since UGLR was not a party to the Trox subcontract and was not authorised by cl 29.4 to act on Alstom’s behalf in relation to it, each of issues 2 and 3 must be answered “no”.

Issues 4 and 5: cl 19.0(b) of the Trox subcontract

The founding assumption underpinning each of these issues – that cl 19 of the GCC in the Trox subcontract was engaged – has not been made good. Nonetheless, and because the factual disputes are very limited, I shall deal with these issues as briefly as I can.
UGLR relies on notices given on 13 July 2007, 29 October 2007, 6 November 2007 and 16 January 2008.
Before any of those notices was given, and before completion under stage 1 of the Trox subcontract was achieved (on 20 March 2007), a number of defects had been identified and remedied. Further, after completion of stage 1 of the subcontract works, another defect was identified. It was rectified in July 2007. UGLR accepts that any claim for damages it might have had in respect of those defects is statute-barred.
The first notice was given by email. The signatory, Mr Thomson, was identified as being the “Chief Engineer (Mechanical)” of an entity described as “United Group Infrastructure”, presumably UGI.
The second notice was given by letter on the letterhead of UGI. The letterhead identified UGI’s Australian Business Number (ABN) as 96 096 365 972. That is not the ABN of UGLR (30 097 323 852).
The third notice was again given on the letterhead of UGI, but this time with UGLR’s ABN.
The fourth and final notice was again given on UGI letterhead, but like the second notice, it specified UGI’s ABN, not UGLR’s.
It may be possible to construe the notices on the letterhead of UGI but stating UGLR’s ABN as having been given by UGLR. That cannot be said of the two that have a different ABN. There was no evidence that UGI had any authority to act on behalf of UGLR in relation to the Trox subcontract.
The first notice stated that in “our” view (attributed to UGI and said to be based on its inspections), none of the outlet attenuators was fit for purpose, and sought a meeting to discuss resolution of the problem.
The second notice referred to a meeting that had occurred on 12 October 2007 and to subsequent correspondence, and to the history of failures. It stated that the “Supplies do not satisfy the requirements of the Contract” and directed “Trox to modify, repair, replace and/or rectify the Supplies at its costs”. The notice required Trox to undertake that it would “immediately modify, repair, replace, and/or rectify the defective Supplies at its cost” and that “Trox will take responsibility for all the reasonable and necessary costs incurred by” an entity described as “United Group Rail Pty Ltd t/as United Group Infrastructure (“UGL”)”.
On 2 November 2007, UGI gave Trox what purported to be a notice pursuant to cl 19.0(c) of the GCC that “UGL” (in the sense just referred to) itself would “undertake the work to modify, repair, replace and/or rectify the defective Supplies”. That notice was given by a letter on UGI letterhead but specifying the ABN of UGLR.
The third notice referred to correspondence and said that “our corporate position remains as stated in” UGI’s earlier letters, and that “we continue to dispute Trox’s position”. The corporate entity whose position was thus stated was not explicitly named.
The fourth notice confirmed that, since Trox had not done what “UGL” purportedly had directed it to do, “UGL” would take the necessary steps, and would seek recovery of costs from Trox.
Mr Ashhurst submitted that by those notices, “Alstom” (his emphasis) “had elected to require Trox to repair, modify or replace the attenuators the subject of this claim” [41] . The suggestion that UGLR (or UGI, or “UGL”) was acting as or for Alstom is a gloss on the correspondence. Nowhere in the letters in question is there any suggestion that UGLR (if indeed that company was identified as the author of any of those letters) was acting otherwise than in its own right, pursuant to powers that, subjectively, it believed it had.
41. Written closing submissions, para 39.
Mr Newlinds submitted that none of the directions had given Trox a reasonable amount of time to rectify the defects that were asserted to exist. Thus, he submitted, Trox had not been given “the opportunity to repair [etc]” stipulated in cl 19.0(c).
Mr Newlinds submitted, further, that each of the notifications must be read as referring to the defects that had been ascertained at the time it was written. None of them, he submitted, drew attention to the defects alleged as to the Epping Road inlet attenuators or the Sirius Road outlet attenuators.
Mr Newlinds submitted, further, that to the extent that any of the directions called upon Trox to undertake that it would carry out the necessary works, that was not something for which cl 19.0(c) provided.

Decision

At the time the last notice was given (on 16 January 2008), the Epping Road outlet attenuators, the Epping Road inlet attenuators and the Sirius Road outlet attenuators had not failed. Nor, as at 16 January 2008, had Mr Gillespie (or SKM) made any recommendation for the repair of those attenuators. The work on those attenuators was done at the direction of UGLR by other companies in the United Group. Trox was not provided with any opportunity to undertake that work. I think it is reasonably clear from the correspondence that Trox would have declined any such opportunity. However, UGLR’s case was not put on the basis of anticipatory breach.
In my view, and making the foundational assumption that underlies issues 4 and 5, none of the notices that were given to Trox was effective for the purposes of cl 19.0(c) of the GCC. First, none of them was given by “Alstom” or by UGLR purporting to act as Alstom’s agent.
Further, in two cases, the notices cannot be read as having been given by UGLR at all; and as I have said there is no evidence that whoever did give them was authorised to do so on behalf of UGLR. That problem may not affect the other two notices if, by reference to the ABN, it is proper to construe them as having been given by UGLR purporting to act as Alstom’s agent.
Leaving aside those problems, none of the notices drew attention to, and required Trox to rectify, the Epping Road outlet attenuators, the Epping Road inlet attenuators or the Sirius Road outlet attenuators. Trox accepts that the Epping Road outlet attenuators were defective, and that the rectification work that was done was reasonable for the purpose of remedying those defects. But that is not the present point. The point is whether, whatever Trox’s attitude was or proved to be, it was called upon to rectify the defects in any of those attenuators. It was not.
Mr Ashhurst submitted that the notices were effective to require Trox to repair any and all defects, including those that came to light as a result of Mr Gillespie’s investigations in 2008 and following. He relied on the generality of their wording, including the use of the contractually defined word “Supplies”.
I do not accept that submission. The guarantee given by cl 19.0(a) of the GCC is a guarantee of:

… the Supplies against any omissions or defects or other failures arising in whole or in part from faulty design, materials or workmanship, or any other omissions, defects or failures which render them unsuitable for the Purchaser’s requirements… .

Clause 19.0(b) gave Alstom the “option” to require Trox to “repair, modify or replace at [its] expense… Supplies which are unsuitable for [Alstom’s] requirements”.
Clause 19.0(b) could only operate in a sensible way, and Trox could only do what was necessary to repair or modify unsuitable Supplies if it were told what it was that needed repair or modification. Simply to state that “the Supplies are defective and unfit for purpose” could not do that. Trox would not know what it was required to repair or modify.
The same point arises in respect of cl 19.0(c). Alstom expressly acknowledged that Trox would have “the opportunity to repair, modify, replace and/or provide again Supplies before [Alstom] undertakes any of the work or has the work carried out by a third party”. In some cases at least, that “work” is work of repair or modification. Again, the notion of giving Trox the opportunity to do that work – to repair or modify – necessarily carries with it the proposition that it should be told what it is that is defective so as to require repair or modification.
Further, in my view, it is unrealistic to suggest that a general direction to repair or modify defective Supplies (or, for that matter, to replace them) could trigger an obligation to repair, modify or replace Supplies that, at the time the notice was given, were not known to be defective.
I conclude that each of issues 4 and 5 should be answered “no”.

Issue 6: did Alstom suffer loss?

The parties’ submissions

Mr Ashhurst submitted that Alstom had suffered loss, even though it had not performed, or caused to be performed, any repair work; nor had it paid for any repair work. He relied on Bellgrove v Eldridge [42] , Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [43] and other cases.
42. (1954) 90 CLR 613.
43. (2009) 236 CLR 272.
Mr Newlinds submitted that Alstom had not suffered any damage, because it had not done or procured to be done any repair work and had not paid for any repair work. Further, Mr Newlinds submitted, if Alstom had suffered damage, it, not UGLR, would be the proper plaintiff.

Decision

In my view, Alstom did not suffer any loss compensable in damages by reason of the defects. By the time the defective attenuators were supplied and installed, Alstom had no economic interest in or under the Trox subcontract. It had been paid valuable consideration to “sell” that contract to UGLR, and thereby received what it must have regarded as the present value of the benefit of performance of the Trox subcontract.
In consequence, Alstom had agreed to give the benefit and burden of that subcontract to UGLR. Whether or not at the level of fact, it did or had done so, it was under an enforceable obligation to do so (or, at least, to do whatever it could to that end). The existence of that obligation meant that Alstom could suffer no loss by reason of any defect in Trox’s performance. Perhaps Alstom could sue, as trustee for UGLR, and recover damages that it would hold for UGLR. I express no view as to whether that is correct. The simple fact is that Alstom has not done so.
The situation is quite distinct from that dealt with in cases such as Bellgrove and Tabcorp. In those cases, the plaintiff retained an economic interest in the proper performance of the contract, and that economic interest was damaged. The damage was caused by the breach, and the essential point was that to make the plaintiff whole, it was necessary to award damages for the breach. It was not necessary that the amount claimed as damages should have been incurred in, or should be put towards, rectification costs.
In this case, Alstom’s economic interest in the Trox subcontract came to an end, at the latest, on Completion of the sale contract. Thereafter, Alstom’s only relevant obligations were to assist UGLR to get the benefit of the Trox subcontract (and other Contracts). If Alstom received any payment or benefit relating to the Trox subcontract, it was bound to account to UGLR (cl 29.4).
Alstom gave no warranty of performance by Trox, or by any other counterparty to a Contract. The risk of non-performance lay with UGLR from Completion of the sale contract. Thereafter, nothing that happened, in relation to the Trox subcontract or any other Contract, could have any adverse impact on the financial position of Alstom.
The sixth issue should be answered “none”.

Issues 7 and 8

These issues do not arise.
By the time the deed was made and had effect (11 March 2013), there was nothing left to assign. Specifically, Alstom had never incurred any expense or liability for rectification of the defective attenuators. It had never called on Trox to rectify those defective attenuators. There was thus no right, either in damages or otherwise, that could have been assigned.
In short, Alstom suffered no loss; it had nothing in respect of which it was entitled to be indemnified; and it had no claim for damages that might have been the subject of the assignment to UGLR.

Issue 9: limitation

It is common ground that the defects claims identified as Defects 1 to 5 are statute barred. Mr Newlinds’ written submissions did not contend for some different analysis of limitations. In those circumstances, and bearing in mind that the point does not arise on the conclusions that I have reached to date, it seems unnecessary to investigate the topic any further.

Issue 10: defects; direction to rectify

As the formulation of this issue shows, it is to be dealt with in the way that issues 1 and 2 have been dealt with.

Issue 11: was Trox given an opportunity to repair etc?

The answer to this is “no”. It follows, so far as it is relevant (that is, to the Epping Road outlet and inlet attenuators and the Sirius Road outlet attenuators), from what I have said in relation to the fourth issue.

Issue 12: did Trox fail to rectify?

The extent to which Trox did carry out rectification work is non-contentious. So, too, is the extent to which it did not.
It is unnecessary to say anything more than that, once UGLR had carried out rectification work, there was nothing more for Trox to do.

Issue 13: agency; ratification

It does not seem to be disputed that, at least de facto, UGLR had the ability to carry out or commission whatever rectification works (or indeed other works) it thought were necessary. For the reasons I have given in relation to the second issue, that de facto right did not arise from cl 29.4 of the sale agreement or from ratification.

Issue 14: costs and expenses

The parties have agreed on the costs incurred. They are set out in the rectification schedule, marked for identification 3.

Issue 15: did UGLR incur any of those costs and expenses?

It is common ground that, literally (and perhaps with the exception of some minimal amount of expense invoiced direct to UGLR, less than $1,500 in total), UGLR did not itself incur the costs. The works were done by other entities within the United Group. UGLR did not pay those other entities (or those whom the relevant entity procured to carry out any particular rectification work). Nor were journal entries made in the accounts of UGLR and the other entities to charge the cost to UGLR.
UGLR relied on the fact that, by reason of cross-guarantees given, the parent company in the United Group accounted on a consolidated basis and individual accounts were not prepared for each of the subsidiary companies. Mr Ashhurst submitted that the effect of the cross-guarantees, being to make each group company liable for the debts of each other group company, somehow meant that UGLR was liable for the costs of rectification carried out by other group companies.
The short answer appears to be, as Mr Newlinds submitted, that the cross-guarantee only comes into effect on the winding up of a group entity and if its debts are not paid in full. It has no practical operation otherwise.
The companies that did the work are not, nor have they been, insolvent. The contingent obligations imposed by the cross-guarantee have never crystallised. It follows, as Mr Newlinds submitted, that UGLR has no obligation in relation to the costs and expenses incurred by other United Group companies, and could not be made liable for their debts, in respect of any of the repair work done to the attenuators.
Issue 15 should be answered “no”.

Issue 16: did Alstom incur any of the costs or expenses of rectification?

There is no evidence that Alstom incurred any cost for any defect rectification. For the reasons I have given, Alstom had no interest in procuring rectification and, so far as the evidence goes, made no attempt to do so.
UGLR’s case appears to be that the costs were incurred by “Alstom (via UGLR)” [44] . The short answer to that is that, for the reasons I have given, UGLR acted in its own right and not as agent for Alstom when it directed the rectification work, and to the extent that UGLR did incur a liability to pay for that work, it incurred that liability in its own right.
44. Written closing submissions, para 44.

Issues 17 to 19: Alstom’s rights; assignment; limitation

For the reasons I have given, Trox had no liability to Alstom, Alstom had not incurred any liability for which it was entitled to be indemnified by Trox, and there was nothing of present relevance assigned to UGLR.
The position as to the limitation defence is as stated at [219] above.

Issue 21: trust

For the reasons I have given in dealing with the first issue, the answer is “no”.

Issue 22: should Alstom be joined?

On the answer to issue 21, this issue does not arise.

Issue 23: what if any costs were incurred after assignment?

On the evidence, none.

Conclusion and orders

UGLR has created, through its and Alstom’s apparent inattention to the requirements of cl 29 of the sale agreement, a situation where it is left without any right against Trox for such defects as have been proved or found, and are not statute-barred. It follows that the proceedings must be dismissed with costs, and I so order. The exhibits are to be returned.

Appendix 1

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Endnotes

Decision last updated: 15 June 2017

Medium Neutral Citation:	UGL Rail Pty Limited v Trox (Australia) Pty Limited [2017] NSWSC 770
Hearing dates:	15/05/2017; 16/05/2017; 22/05/2017; 24/05/2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Equity - Technology and Construction List
Before:	McDougall J
Decision:	Proceedings dismissed with costs.
Catchwords:	BUILDING AND CONSTRUCTION – whether sound attenuators designed and supplied by the defendant for the Lane Cove Tunnel Project were defective – BUILDING AND CONSTRUCTION – whether UGLR instructed Trox to repair, modify, replace and/or provide again the defective attenuators – where notices given to Trox were ineffective – CONTRACT – whether UGLR is entitled to recover damages – where Alstom subcontracted to Trox responsibility to design and supply the sound attenuators (Trox subcontract) – where Alstom sold its “Business” and all “Contracts” relating to it to UGLR (Sale contract) – whether Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract – whether UGLR had implied actual authority to administer and perform the Trox subcontract – whether UGLR’s conduct was ratified by a deed of assignment – whether Alstom became a trustee of its rights under the Trox subcontract for the benefit of UGLR – CONTRACT – whether after completion of Sale contract Alstom suffered loss compensable in damages by reason of the defects – CONTRACT – whether UGLR incurred costs and expenses – where works were done by related companies – where UGLR has no obligation in relation to the costs and expenses incurred by those companies
Cases Cited:	Bellgrove v Eldridge (1954) 90 CLR 613 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639 Byrnes v Kendle (2011) 243 CLR 253 Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 134 (1993) 32 NSWLR 50 Jessup v Queensland Housing Commission [2002] 2 Qd R 270 In Re Schebsman; Ex parte Official Receiver v Cargo Superintendents (London) Ltd [1944] Ch 83 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 Mackay v Dick (1881) 6 App Cas 251; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127
Category:	Principal judgment
Parties:	UGL Rail Pty Limited (Plaintiff) Trox (Australia) Pty Limited (Defendant)
Representation:	Counsel: M Ashhurst SC / S Docker (Plaintiff) CRC Newlinds SC / C McMeniman (Defendant) Solicitors: Norton Rose Fulbright Australia (Plaintiff) Henry Davis York (Defendant)
File Number(s):	2013/249904