GHP Piling Limited v Leighton Contractors Pty Limited HC Auckland CIV-2010-404-3231
[2011] NZHC 1763
•22 November 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-3231
BETWEEN GHP PILING LIMITED Plaintiff
ANDLEIGHTON CONTRACTORS PTY LIMITED
First Defendant
ANDDOWNER EDI WORKS LIMITED Second Defendant
Hearing: 22 November 2011 (Heard at Auckland)
Counsel: S. O'Brien - Counsel for Plaintiff
C.J. Booth and A.C. Lee - Counsel for First and Second Defendants
Judgment: 22 November 2011
ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
Solicitors: Fortune Manning, Solicitors, PO Box 4139, Auckland
Kensington Swan, Solicitors, Private Bag 92101, Auckland 1142
GHP PILING LIMITED V LEIGHTON CONTRACTORS PTY LIMITED HC AK CIV-2010-404-3231 22
November 2011
Introduction
[1] Before the Court is an application by the plaintiff seeking orders for further and better discovery on the part of the defendants.
[2] The plaintiff’s original application has been amended before me without opposition by Mr Booth counsel for the defendants.
[3] The application before the Court effectively therefore now seeks under paras
1(a) and 1(b) further and better discovery of:
(a) The “full set of tender documents” referred to in the defendants’ invitation to tender (Document 1.117 of the plaintiff’s list of documents); and
(b)The defendants’ Construction Contract with New Zealand Transport Authority dated 26 June 2006 No. CA2143 and the defendants’ agreement varying contract with New Zealand Transport Authority all as referred to in the affidavit of Neil Craig Kelly dated 8 September
2011, para 7 and 8.”
[4] The original discovery application dated 11 August 2011 in so far as it sought additional documents under para (1)(c) (being documents relating to the procurement procedure used by On Track/ARTA/Transit NZ and the piling sub-contract tender guidelines/framework) has been amended. Those additional para 1(c) documents are no longer sought by the plaintiff.
[5] The application before me is opposed by the defendants.
Background Facts
[6] The first and second defendants operating as a joint venture as I understand it known as “Leighton Works”, contracted with The New Zealand Transport Authority (NZTA) for the construction of a four lane motorway in Manukau linking State Highway 1 to State Highway 20.
[7] A portion of the contract works included an underetaking known as the Manukau Rail Link enabling works. These works were subsequently extended by way of Variation Contract east of an area at Lambie Drive, Manukau.
[8] Part of those variation works included piling and the construction of walls which was put out to tender by the defendants to a number of parties. These included the plaintiff.
[9] The plaintiff submitted its tender prior to a revised tender deadline date which was 20 May 2009, and was subsequently advised that it and another party were the two parties in contention.
[10] The plaintiff as I understand it maintains that as a result it had entered into some form of preliminary agreement with the defendants.
[11] Subsequently, it seems the defendants accepted a late tender from and ultimately awarded the variation work sub-contract to a third party, Fletcher Construction Company Limited t/as Brian Perry Civil.
[12] It is the plaintiff’s contention that in doing so, the defendants were in breach of the preliminary agreement (presumably taking the form of a tender or process contract) and/or the Fair Trading Act 1986.
[13] The substantive issues to be considered in this proceeding would appear to be:
(a) Whether there was a tender process and whether a process contract or preliminary tender agreement with the plaintiff was created; and
(b)Whether the acceptance of the late tender and awarding of the sub- contract to Brian Perry Civil was in breach of that preliminary agreement and/or a breach of the Fair Trading Act 1986.
[14] As I have noted above, the application before me is one for particular discovery and is brought pursuant to r 8.24 High Court Rules. It relates essentially to the two sets of documents noted above:
(a) The “full set of tender documents” referred to in a request for tender made by the defendants pursuant to a document which is already before the Court.
(b) The defendants’ Construction Contract with NZTA dated 26 June
2006 No. CA2143 (“the Head Contract”) and the defendants’
agreement varying this contract with NZTA.
Counsels‟ Arguments and My Decision
[15] This present application is brought pursuant to r 8.24 High Court Rules which provides as follows:
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered one or more documents or a group of documents that should have been discovered, the Judge may order that party –
(a) to file an affidavit stating:
(i) whether the documents are or have been in the party’s control; and
(ii) if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control, and who now has control of them; and
(b) to serve the affidavit on any other party.
[16] The principles for particular discovery under this rule effectively require that there are:
(a) Grounds for belief that the party is in or has been in possession of;
(b)A document or class of documents that relates to any matter in question in the proceedings.
[17] I turn now to consider each of the two sets of documents which are sought in
the plaintiff’s present application.
Order 1A. The “Full Set of Tender Documents”
[18] In an affidavit of documents already before the Court a document known as document 1.117 constitutes the “Request for Tender” from the defendants Leighton Works to the plaintiff (amongst others).
[19] That document 1.117 states:
We invite you to submit a quotation for the tender and scope of works described below .... a full set of tender documents are available in our office should you wish to view them.
[20] On the face of this document therefore a “full set of tender documents” existed and were available in the Leighton Works office for the plaintiff and others to view.
[21] On the reverse of this document 1.117, the heading “Contract Data” specified that the “conditions” were to be “Leighton Works Standard Contract Conditions”.
[22] As I understand the position, an issue had arisen earlier as to the provision of these “Leighton Works Standard Contract Conditions” but this has now been remedied. A copy of these standard contract conditions has been provided to the plaintiff.
[23] Nevertheless, the plaintiff still seeks in terms of a full and complete discovery exercise here the “full set of tender documents” from the defendants.
[24] As I understand the defendants’ opposition to the present application relating to these documents, it is essentially that no such additional documents exist, other than those which have been already provided on discovery to the plaintiff. In summary, the defendants’ position seems to be that the only document which might exist as part of this “full set of tender documents” is the Head Contract itself. The
defendants’ position on this appears to be that the Head Contract is not relevant. I
will deal in more depth with this claim however, later in this judgment.
[25] Suffice to say at this point it seems to me to be really quite impossible for the plaintiff to be sure whether or not there has been full discovery undertaken by the defendants of the “full set of tender documents” without there being a detailed affidavit filed by the defendants pursuant to r 8.24 directed specifically at the existence and whereabouts of such documents.
[26] In my view there can be no doubt that if as part of “a full set of tender documents” there are indeed other documents which might exist and be held by the defendants, these are clearly relevant in the wide Peruvian Guano sense to the plaintiff’s claim in this case. Such documents should therefore be discovered.
[27] It may be that the defendants’ contention that no such documents exist is in fact the case. Nevertheless, in my view it is appropriate here for an order to be made in terms of r 8.24 regarding this first class of documents in the plaintiff’s application, and an appropriate affidavit addressing the issue filed for or on behalf of the defendants.
[28] An order concerning this group of documents is to follow.
Order 1B. The Defendants‟ Construction Contract with NZTA (the Head
Contract) and the Agreement Varying the Contract with NZTA
[29] As I have noted above, the plaintiff has sought and been granted leave to vary its present discovery application to correctly refer to the Head Contract in this case.
[30] In an affidavit filed in this matter by a Mr Neil Craig Kelly (Mr Kelly) on behalf of the defendants, it is clear that the Head Contract was entered into between the first defendant and the NZTA on 26 June 2006. Further, at para 8 of Mr Kelly’s affidavit, it seems that in November 2009 a variation of this Head Contract to extend the Manukau Rail Line enabling works was entered into between the first defendant and NZTA.
[31] The defendants’ position with regard to discovery of these two documents as set out at para 3b of its Notice of Opposition is that these documents are not relevant and therefore should not be discovered.
[32] The plaintiff agrees that this issue of relevance is the sole matter in question between the parties regarding these class 1B documents. It is accepted that the documents exist and that they are in the possession and control of the defendants.
[33] Before me, both parties properly accepted that the appropriate test of relevance in New Zealand at present is that set out in the Peruvian Guano case. Relevance is to be assessed by reference to the pleadings in any proceeding. It is clear, however, that the concept of relevance has an expansive definition – Australian Mutual Providence Society v Architectural Windows Limited.
[34] Mr Kelly in his affidavit on behalf of the defendants at paras 10 and 11 notes that the plaintiff is not a party to the Head Contract or the Variation Contract. He states further that the sub-contract used by the defendants on this particular project did not tie into the Head Contract and he contends therefore that it was not a “tender document”.
[35] In response before me, however, Ms O’Brien for the plaintiff contended that, although without seeing the Head Contract itself, it was impossible to predict, it may be that this contract could contain provisions relating to how sub-contractors should be procured. She noted particularly that the Head Contract for the overall project was funded by a public entity and that in many cases publicly funded works projects entail what are seen as extensive procurement procedures ensuring that fair processes are undertaken as part of tendering procedures.
[36] Accordingly, for the plaintiff Ms O’Brien, although noting that these processes were not enforceable by private sub-contractors as against a head contractor, suggested that these documents might nevertheless contain tendering material indicative at least of a reasonable expectation that fair dealing clauses in relation to tendering were expected to be included in the relevant contracts.
[37] In response, Mr Booth for the defendants argued that the Head Contract and the later Variation Contract had no relevance here because they related solely to contractual obligations between the defendants and the NZTA. Compliance or otherwise with the requirements imposed under those contracts on the part of the defendants was solely an issue relevant to whether there had been a breach of the Head Contract.
[38] He noted that the plaintiff in this case did not appear to be asserting that any such terms of the Head Contract had been incorporated into and formed part of any process contract between the plaintiffs and the defendants. Effectively, if I can para- phrase his submissions to me, Mr Booth suggested that this whole exercise on the part of the plaintiff was nothing more than a fishing expedition.
[39] With respect I disagree.
[40] It is difficult if not impossible for the plaintiff in this case to be clear as to what the Head Contract or Variation Contract entered into by the defendants may contain. What is clear is that these contracts were with a public body in the sense that the whole project was funded by NZTA as a public entity. Before me Ms O’Brien referred to the New Zealand Standard NZS3910: 2003 Conditions of Contract for Building and Civil Engineering Construction, a contract used widely in commercial construction projects of this type, as a possible form for which the Head Contract here might have followed, and noted that this document contained extensive standards relating to tendering. She noted and I agree that it is quite unclear whether any of these provisions may have found their way into the Head Contract in this case.
[41] Notwithstanding these matters, and given that the issue before the Court to determine in the substantive hearing of this case is whether some form of process contract or preliminary tender agreement was created between the parties as a result of the tender process, I am of the view here that the Head Contract and Variation Contract must be considered as relevant in the broad Peruvian Guano sense and should be discovered.
[42] Any fair dealing clauses in that Head Contract or Variation Contract might be of direct relevance to issues in this case. That, in my view, is enough to require their discovery here.
[43] That said, the plaintiff’s discovery application relating to this second group of
documents also succeeds.
Orders
[44] For the reasons outlined above the following orders are now made:
(a) Pursuant to r 8.24 High Court Rules the defendants are within 10 working days of the date of this judgment to provide to the plaintiff further and better discovery of the documents noted below at [44](b) by filing and serving an affidavit stating:
(i) Whether the documents in question are or have been in the parties control; and
(ii)If they have been but are no longer in the parties control the parties best knowledge and belief as to when the documents cease to be in the parties control, and who now has control of them.
(b)The documents for which discovery is to be given are the following documents:
(i)The “full set of tender documents” referred to in the defendants’ invitation to tender (Document 1.117 of the plaintiff’s list of documents.
(ii) The Head Contract being the defendants’ Construction
Contract with New Zealand Transport Authority dated 26 June
2006 No. CA2143 and the Variation Contract being the
defendants’ agreement varying this contract with The New
Zealand Transport Authority as noted above.
[45] As to costs, the plaintiff has been successful in this application and I see no reason why costs should not follow the event in the usual way.
[46] Costs are therefore awarded to the plaintiff against the defendants with respect to this application on a category 2B basis together with disbursements (if any) as fixed by the Registrar.
„Associate Judge D.I. Gendall‟
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