Adjudication Decision: 00036836
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1 | Page Adjudication Decision: 00036836 (Building and Construction Industry Payments Act, 2004 QLD) Adjudicator : Jonathan Nicholas Smith Registered Adjudicator No. J1066110 Application Details Claimant : Contractor Name : Grindley Construction Pty Limited (“Grindley” or the “Claimant”) ACN/ABN : ABN 42 003 586 687 Address : 55 Grandview Street, PYMBLE NSW 2073 Respondent : Principal Name : Tricare (Country) Pty Ltd (“Tricare” or the “Respondent”) ACN/ABN : ABN 66 008 411 069 Address : 250 Newnham Road, UPPER MOUNT GRAVATT QLD 4122 Project : Sunnybank Hills RACF Type : Aged Care Facility Location : 330 Jackson Road, SUNNYBANK HILLS Qld 4109 Payment Claim : s17 Date : 30 April 2016 Amount : $1,601,798.10 (Inclusive of GST) Nature of claim : Complex Payment Schedule s18 Date : 17 May 2016 Amount : $0.00 (Inclusive of GST) s20A Notice Date : Not Applicable Adjudication Application : s21(1)(a)(i) Application Date s21(3)(c)(i) : 31 May 2016 Date copy of Application given to Respondent s24A(4)(a) : 1 June 2016 Acceptance Date s23(2) & s24A(4)(b) : 2 June 2016 Application for extension of time for Response s24A(5) : 3 June 2016 s24A(7) Application granted for additional 15 business days Response Date s24A(7) : 13 July 2016 Date copy of Response given to Claimant s24A(8) : 14 July 2016 Notification of Claimant’s Reply s24B(7) & Application for extension of time for Claimant’s Reply : 18 July 2016 s24B(3) Application granted for additional 15 business days Claimants Reply : 25 August 2016 Date Claimant’s Reply served on Respondent s24B(6) : Unknown
Transcript of Adjudication Decision: 00036836
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Adjudication Decision: 00036836 (Building and Construction Industry Payments Act, 2004 QLD)
Adjudicator : Jonathan Nicholas Smith
Registered Adjudicator No. J1066110
Application Details Claimant : Contractor
Name : Grindley Construction Pty Limited (“Grindley” or the “Claimant”)
ACN/ABN : ABN 42 003 586 687
Address : 55 Grandview Street, PYMBLE NSW 2073
Respondent : Principal
Name : Tricare (Country) Pty Ltd (“Tricare” or the “Respondent”)
ACN/ABN : ABN 66 008 411 069
Address : 250 Newnham Road, UPPER MOUNT GRAVATT QLD 4122
Project : Sunnybank Hills RACF
Type : Aged Care Facility
Location : 330 Jackson Road, SUNNYBANK HILLS Qld 4109
Payment Claim : s17
Date : 30 April 2016
Amount : $1,601,798.10 (Inclusive of GST)
Nature of claim : Complex
Payment Schedule s18
Date : 17 May 2016
Amount : $0.00 (Inclusive of GST)
s20A Notice Date : Not Applicable
Adjudication Application : s21(1)(a)(i)
Application Date s21(3)(c)(i) : 31 May 2016
Date copy of Application given to Respondent s24A(4)(a)
: 1 June 2016
Acceptance Date s23(2) & s24A(4)(b)
: 2 June 2016
Application for extension of time for Response s24A(5)
: 3 June 2016 s24A(7) Application granted for additional 15 business days
Response Date s24A(7) : 13 July 2016
Date copy of Response given to Claimant s24A(8)
: 14 July 2016
Notification of Claimant’s Reply s24B(7) & Application for extension of time for Claimant’s Reply
: 18 July 2016 s24B(3) Application granted for additional 15 business days
Claimants Reply : 25 August 2016
Date Claimant’s Reply served on Respondent s24B(6)
: Unknown
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Adjudicator’s Decision Jurisdiction : I have Jurisdiction to decide the following:
Adjudicated Amount : $470,840.98 (Exclusive of GST)
Due Date for Payment : 24th May 2016
Rate of Interest : 11.73%
Claimant Fee Proportion (%) : 50%
Respondent Fee Proportion (%) : 50%
Decision Date : 17th October 2016
NOTE PRINT APPENDIX 2 (PAGES 117 – 121)
AND APPENDIX 3 (PAGES 123 - 129)
AT A3
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Contents
Decision.................................................................................................................................................... 5 Background ............................................................................................................................................. 5 Jurisdiction .............................................................................................................................................. 6 Scope of this Determination ................................................................................................................... 6 Matters Regarded in Making Determination ....................................................................................... 6 The Construction Contract and the Application of the Act ................................................................ 7 Reference Date ........................................................................................................................................ 9 Due Date for Payment .......................................................................................................................... 12 Amount of a Progress Payment ........................................................................................................... 13 Valuation of construction work and related goods and services ...................................................... 13 Interest ................................................................................................................................................... 14 The Amount Submitted for Determination ........................................................................................ 15 The Payment Claim .............................................................................................................................. 16 The Payment Schedule ......................................................................................................................... 16 The Adjudication Application ............................................................................................................. 17 The Adjudication Response ................................................................................................................. 17 The Claimant’s Reply ........................................................................................................................... 17
RFFI1 – What is a new reason? ...................................................................................................... 21
New reasons and the expansion of existing reasons ....................................................................... 22
Adjudication Response – Statutory Declarations ........................................................................... 32
Adjudication Response – Expert’s Reports .................................................................................... 32
The contents of the claimant’s reply ............................................................................................... 35
Jurisdictional Issue - Claims made after Reference Date ................................................................. 36 Matters for Determination ................................................................................................................... 39 Original Subcontract Works & Provisional Sums ............................................................................. 40 Uncontested Variations ........................................................................................................................ 40 The Date for Practical Completion ..................................................................................................... 40
Counting of days............................................................................................................................. 41
The role of the construction program under the contract ................................................................ 42
The notices to show cause .............................................................................................................. 49
The method for revising the Date for PC under the contract .......................................................... 50
Adjudicator standing in shoes of the Superintendent ..................................................................... 55
Approval of Shop Drawings ........................................................................................................... 55
Extension of time claims ................................................................................................................ 55 The Claimant’s use of the NOD and EOT Register for Notification .......................................... 57 Architectural and Structural Engineering Expert Reports .......................................................... 59 Delay Expert Reports .................................................................................................................. 60
The Program ........................................................................................................................... 60 Other criticisms by Mr. Ash .................................................................................................... 61 Concurrency ........................................................................................................................... 64 Mitigation ............................................................................................................................... 65
Date compliance of notices under clause 35.5 ............................................................................ 65 EOT9 – Inclement weather 30/4/15, 1/5/15, 4/5/15 ................................................................... 65 EOT10 & EOT15 – External Façade Amendments .................................................................... 66 EOT14 – Inclement weather 17/6/15 .......................................................................................... 79 EOT16 – Inclement Weather 29/6/15 ......................................................................................... 80
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EOT70 - Retaining Wall Finishes ............................................................................................... 80 EOT81 - Inclement Weather 28/10/15........................................................................................ 81 EOT82 - Inclement Weather 29/10/15........................................................................................ 82 EOT83 - Inclement Weather 9/11/15.......................................................................................... 82 EOT91 - Landscaping ................................................................................................................. 83 EOT103 - Water Main Limiting Valve ....................................................................................... 84 EOT104 - Payment of BCC Plumbing Fees ............................................................................... 85
The Date for Practical Completion ................................................................................................. 85
Delay Costs ............................................................................................................................................ 86
No grant of an EOT by the Superintendent .................................................................................... 86
Delay costs claimed under clause 40 as variations ......................................................................... 86
The applicability of Clause 46.1 of the contract ............................................................................. 88
Valuation under Clause 36 ............................................................................................................. 89
Variation 113 – EOT 10 External Façade delay costs .................................................................... 91
Variation 114 – EOT 15 External Façade delay costs .................................................................... 91
Variation 115 – EOT 70 Retaining Wall Finishes delay costs ....................................................... 91
Variation 116 – EOT 91 Landscaping delay costs.......................................................................... 91
Variation 117 – EOT 103 Water Main Limiting Valve delay costs ............................................... 91
Variation 118 – EOT 104 Payment of BCC Plumbing Fee delay costs.......................................... 92
Acceleration Costs ................................................................................................................................ 92
Variation 112 – Acceleration Costs ................................................................................................ 93
Contested Variations ............................................................................................................................ 96
Variation 16 – External Façade amendments ................................................................................. 96
Variation 45 – Additional FC in lieu of metal cladding ................................................................. 97
Variation 47 – Boundary earthworks and retaining walls .............................................................. 97
Backcharges / Setoffs / Deductions ...................................................................................................... 97
The Date of Practical Completion .................................................................................................. 98
Setoff 1 - Defective Works ............................................................................................................. 99
Setoff 2- Liquidated Damages ...................................................................................................... 101
Setoff 3 – Security ........................................................................................................................ 101
The Adjudicated Amount .................................................................................................................. 102 Due Date for Payment Decision ......................................................................................................... 102 Rate of Interest Decision .................................................................................................................... 102 Adjudicators Fees ............................................................................................................................... 102 Determination ..................................................................................................................................... 103 APPENDIX A – JURISDICTION ..................................................................................................... 104 APPENDIX B – RECONCILLIATION OF POSITIONS AND COLLECTION......................... 116 APPENDIX C – CONTENTS OF CLAIMANT’S REPLY ............................................................ 122 APPENDIX D – RESPONDENT’S COMPLAINT REGARDING CLAIMANT’S REPLY....... 130 APPENDIX E – ADJUDICATOR’S REPLY TO RESPONDENT’S COMPLAINT .................. 133 APPENDIX F – CLAUSE 35.5 .......................................................................................................... 135 APPENDIX G – TIME COMPLIANCE WITH CLAUSE 35.5 ..................................................... 137
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Decision
I, Jonathan Nicholas Smith, as Registered Adjudicator Number J106610 pursuant to the Building and Construction Industry Payments Act (Qld) 2004 (the Act), for the reasons set out in this decision, decide that:
(a) The adjudicated amount is respect of the Application made on the 31st May 2016 is Four Hundred and Seventy Thousand, Eight Hundred and Forty Dollars and Ninety-Eight Cents (Exclusive of GST) as shown in Appendix B,
(b) The date on which the amount becomes payable is the 24th May 2016.
(c) The applicable rate of interest is 11.73%.
(d) The Parties will pay the Adjudicators fees and expenses in equal shares.
Background
1. The parties contest many elements of each other’s’ compliance with the Act, almost every element of the contract which the claim touches upon and almost every matter of fact. Hence the submissions are large; and inevitably; so is this decision.
2. On the 5th September 2014 the parties entered into a contract for the construction of the Sunnybank Hills RACF Stage 1 at 330 Jackson Road, Sunnybank Hills, Queensland.
3. This adjudication arises from a payment claim for an amount of $1,601,798.10 (Inclusive of GST) dated and sent via email to the Respondent on the 30th April 2016.
4. On 17th May 2016 the Respondent send a document which the Claimant accepts is a valid payment schedule which stated that the “Scheduled Amount” as “Nil”.
5. The Claimant made application to the Queensland Building and Construction Commission (hereinafter referred to as the “QBCC”) Adjudication Registry for adjudication of the matter on the 31st May 2016.
6. On the 2nd June 2016, the QBCC referred the adjudication application to me.
7. That same day I wrote to the parties accepting the adjudication application.
8. The Respondent subsequently made an application under s24A(5) for an extension of time in which to give me an adjudication response. I approved that extension to the 13th July 2016.
9. On the 13th July 2016, the Respondent rang my Agent and requested that I accept service of the Adjudication Response via the Hightail document system. I declined to accept service in that manner.
10. On the 13th July 2016, my Agent received an adjudication response from the Respondent. My Agent also received a Hightail link to an electronic copy of those same files the next day the 14th July 2016 which I did not access until the 15th July 2016.
11. A copy of the response was served on the Claimant on the 14th July 2016.
12. The Claimant gave me notice on the 18th July 2016 of its intention to give me a claimant’s reply and sought an extension of time within which to give me a reply in that same letter.
13. I wrote to the parties that evening saying I agreed that the response contained new reasons for withholding not given in the payment schedule and that the Claimant could give me a claimant’s reply. I also approved an extension of time to the 25th August 2016.
14. On the 19th July 2016 I received an unsolicited submission from the Respondent complaining that the response contained no new reasons and that I should not have allowed the Claimant to give a claimant’s reply or an extension of time within which to give one.
15. I replied to that letter the same evening, reiterating the decision I had made on the 18th July 2016.
16. The Claimant gave my Agent a claimant’s reply on the 25th August 2016.
17. On the 5th September 2016 I made a Request for Further Submissions No.1 of the Respondent. The Respondent replied on the 9th September 2016 and the Claimant commented on the 12th September 2016 within the deadlines I set.
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Jurisdiction
18. The Act at Section 25(3)(a) requires that an adjudicator:
“(a) must decide whether he or she has jurisdiction to adjudicate the application;”
19. I have made a decision on each of the things which might affect my ability to make a decision, those which might affect the time within which I might make a decision and on whether I can consider a particular submission in Appendix A.
20. On the basis of the information before me I am satisfied that there is nothing which disentitles me from making a decision in respect of those procedural requirements.
Scope of this Determination
21. The Act at Section 26(1) requires that I am to decide:
“(a) the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and
(b) the date on which any amount became or becomes payable; and
(c) the rate of interest payable on any amount.”
22. The Act at Section 35(3) gives me the discretion; having considered those things in Section 35A; to decide the proportion of my fees and expenses which are to be paid by the Claimant and by the Respondent.
23. I note the Respondent says I cannot order the return of Bank Guarantees given by the Claimant as security. I agree with that submission; I have no jurisdiction to do so.
Matters Regarded in Making Determination
24. Section 26(2) of the Act restricts the matters, which I may consider in deciding an adjudication application. Section 26(2) provides:
“In deciding an adjudication application, the adjudicator is to consider the following matters only-
(a) the provisions of this Act and, to the extent they are relevant, the provisions of the Queensland Building and Construction Commission Act 1991, part 4A;
(b) the provisions of the construction contract from which the application arose;
(c) the payment claim to which the application relates, together with all submissions, including relevant documentation, that have been properly made by the claimant in support of the claim;
(d) the payment schedule, if any, to which the application relates, together with all submissions, including relevant documentation, that have been properly made by the respondent in support of the schedule;
(e) the results of an inspection carried out by the adjudicator of any matter to which the claim relates.”
25. I discuss the apparent disconnect between ‘new reasons’ and submissions “properly made by the respondent in support of the schedule” in s26(2)(d) under the heading “New reasons and the expansion of existing reasons” below.
26. In making this decision I have had regard to the following:
(a) The provisions of the Act and, to the extent they are relevant, the provisions of the Queensland Building and Construction Commission Act1991, part 4A (referred to in this decision as ‘the QBCC Act”);
(b) The provisions of the contract from which the Adjudication application arose.
(c) The payment claim served on the 30th April 2016 to which the application relates.
(d) The payment schedule served on the 17th May 2016.
(e) The adjudication application made on the 31st May 2016 and enclosed documents comprising three boxes of files.
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(f) The adjudication response received by me on the 13th July 2016 and enclosed documents comprising of 6 boxes of files and a USB stick containing 1.22Gb of material.
(g) The claimant’s reply received by me on the 25th August 2016 and enclosed documents which I have decided are properly made submissions comprising of one box of files and a USB stick containing 1.84Gb of material.
(h) The Respondent’s submission and the Claimant’s comments on that submission to my Request for Further Information No. 1 made on the 5th September 2016.
The Construction Contract and the Application of the Act
27. The Act in schedule 2 defines a ‘Construction Contract’…
“construction contract” means a contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party.”
28. It is not contested that the contract entered into by the parties is a construction contract within the meaning in the Act.
29. Having reviewed that document1, I accept that the subcontract entered into is a construction contract within the meaning of the Act.
30. Parties to the Contract are Grindley Construction Pty Limited (ABN 42 003 586 687) as Contractor and Tricare (Country) Pty Ltd (ABN 66 008 411 069) as Principal.
31. The application did not contain a copy of the executed contract. I have been provided with a copy in the adjudication response2.
32. In correspondence with the parties on the 6th June 2016; in relation to an extension of time for the adjudication response; I indicated that if the Respondent gave me a copy of the contract in the response then the Claimant would have the opportunity to agree or contest that document in a Claimant’s Reply or alternatively I would ask for further submissions on the matter.
33. Where I am made aware of a jurisdictional issue, I cannot ignore it, lest it have some merit.
34. In that regard I refer the parties to the decision of Hodgson JA in John Holland Pty. Limited v. Roads & Traffic Authority of New South Wales & Ors. [2007] NSWCA 19 at [48]-[49] to which the Claimant refers; albeit to different passages; in its claimant’s reply at [21] (b). Having been made aware of the issue in such a submission, I am satisfied that the matter of my jurisdiction is a matter which crosses the relevance threshold.
35. As the adjudication response contained new reasons, the Claimant could give me a claimant’s reply and thus; as a jurisdictional submission may be made at any time; the Claimant had the opportunity in that reply to question the document provided by the Respondent in the adjudication response. It did not question the document in the reply and hence I am satisfied that the document provided by the Respondent is the contract executed between the parties.
36. The Contract documents3 comprise the whole agreement between the parties.
37. Those documents are listed in order of precedence4:
1 At Annexure A to this decision 2 Adjudication response Folder 1 TAB 2 3 Clause 1.13 of the Formal Instrument of Agreement 4 Clause 1.4 of the Formal Instrument of Agreement
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38. The parties are at odds over one element of the executed contract document; the construction program appended to it.
39. Regardless of the effect or use of a program under the contract; the contract contains an entire agreement clause at 1.13 of the Formal Instrument of Agreement which sits at the top of the order of precedence. Hence any document relating to something discussed or negotiated before execution of the contract and not bound into the contract, does not form part of the contract.
40. The purpose of the order of precedence is to resolve inconsistencies between contract documents in an agreed order.
41. The Annexure Part A to AS2124 which contains at item 26; in reference to clause 35.2; a Date for Practical Completion of the 2nd November 2015; sits above the Annexure Part E which contains what the Respondent refers to as the tender program showing a Date for Practical Completion of the 19th October 2015.
42. Therefore, applying the order of precedence the Date of Practical Completion in the Annexure Part A is to be preferred over that in the program in the Annexure Part E.
43. I deal with issue further under the heading “The Date for Practical Completion”.
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44. My jurisdiction under the Act is to decide those things in s.26(1). I do not have jurisdiction to:
(a) Order specific performance, for example I cannot order the return of bank guarantees, whether my assessment of dates as part of my valuation function might indicate that they should be returned under the contract or not;
(b) Award damages unless the contract provides a mechanism for me to determine both the entitlement to those damages and the quantum of them.
Reference Date
45. Section 12 of the Act provides:
“12 Rights to progress payments
From each reference date under a construction contract, a person is entitled to a progress payment if the person has undertaken to carry out construction work, or supply related goods and services, under the contract.”
46. Section 7 of the Act states…
“7 Object of Act
The object of this Act is to ensure that a person is entitled to receive, and is able to recover, progress payments if the person—
(a) undertakes to carry out construction work under a construction contract; or
(b) undertakes to supply related goods and services under a construction contract.”
47. As evidenced by the submissions, the Claimant has undertaken to perform construction work and supply related goods and services for the Respondent under a construction contract and is thus entitled to recover progress payments.
48. Schedule 2 of the Act provides:
49. “reference date”, under a construction contract, means—
(a) a date stated in, or worked out under, the contract as the date on which a claim for a progress payment may be made for construction work carried out or undertaken to be carried out, or related goods and services supplied or undertaken to be supplied, under the contract; or
(b) if the contract does not provide for the matter—
(i) the last day of the named month in which the construction work was first carried out, or the related goods and services were first supplied, under the contract; and
(ii) the last day of each later named month.”
50. I am satisfied that the definition at (a) applies as the contract does provide for the matter.
51. On the application form5 the Claimant states the reference date for this claim is the 15th April 2016.
52. Under clause 1.1 of the Formal Instrument of Agreement, it is stated that terms in this contract have the same meaning as those in AS2124-1992 as amended:
(a) In AS2124-1992 a ‘day’ is defined as “a calendar day”;
(b) In the Special Conditions of Contract at 1.1; clause 2 of AS2124 is amended to add that a ‘business day’ is defined as having “the meaning in the Acts Interpretations Act 1954 (Qld) but excludes 27-31 December inclusive in each calendar year”;
(c) In the Special Conditions of Contract at 1.3; clause 2 of AS2124 is amended to add that "If the time for giving any notice, issuing any certificate, making any payment or doing any other act required or permitted by the Contract, falls on a day which is not a Business Day, then the time for giving the notice, issuing the certificate, making the payment or doing the other act will be deemed to be on the next Business Day.”
5 And at [48] in the application
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53. The claim was made on Saturday the 30th April 2016 which; whilst not a ‘business day’ as defined in the contract; is never-the-less a ‘day’ on which a claim for payment may be made. Therefore, the first ‘business day’ after that ‘day’ is Tuesday the 3rd May 2016 which is the day the payment claim is deemed to have been made under clause 2 of the contract.
54. I note that in my ‘Indication of Timing’ letter of the 5th June 2016, I indicated these elements of the contract to the parties.
55. I also said in that letter:
“Please note: I am bound to apply the contract and all of what I say below is based upon the copy of a document provided to me in the application which is a copy of AS2124 amended by the Claimant, but it is not the executed contract. As I do not have a copy of the executed contract document, I do not have; or at least have not been able to locate; a completed copy of the Annexure Part A. Anything I say below may be incorrect if the executed contract contains terms different to those in the document I have been given.”
I then said:
“It is uncontroversial that the reference date for this claim is the date for practical completion; however, the date itself is at issue. The Claimant says in the application it occurred on the 3rd March 2016 and the Respondent says in the payment schedule it occurred on the 13th April 2016. Ninety (90) calendar days had not passed after either date, as at the date of the payment claim. I note the trigger in the contract is the issue of the certificate and not the date itself.”
56. Having now received the contract document, it is clear to me that the Date of Practical Completion is not the reference date but that the reference date may be worked out under the contract as a day within 28 days from the date of the issue of the Certificate of Practical Completion. I indicated in my letter that the trigger is the issue of the certificate and not the date of Practical Completion itself.
57. As my letter was sent before date for the adjudication response and the date for the claimant’s reply, both parties have had the opportunity to address the deeming provision and certificate issues.
58. The contract at clause 42.1 as amended by 1.61 of the Special Conditions of Contract says “the Contractor shall only submit payment claims”:
(a) “Prior to the Date of Practical Completion, at the times stated in Annexure Part A;
(b) within 28 days of the issue of a Certificate of Practical Completion; and
(c) in accordance with clause 42.7.”
59. The Annexure Part A at item 35 states that the time for payment claims is “the 30th calendar day of each calendar month, or final calendar day of each calendar month, whichever is earlier.”
60. I am satisfied that (a) does not apply and the reference date for this claim is that date occurring in (b) above; within 28 days of the issue of a Certificate of Practical Completion; as both parties agree a Certificate of Practical Completion was issued by the Superintendent.
61. I note that whilst the parties do not agree on the date of, or date for Practical Completion, the trigger under (b) in the contract is the issue of the certificate, not those dates.
62. That creates somewhat of a disconnect between (a) and (b), as (a) is dependent on the Date of Practical Completion which is in contest between the parties and (b) the date the Certificate of Practical Completion was issued which is a fact, even if the date which it states as the Date of Practical Completion is at issue.
63. The Superintendent issued a Certificate of Practical Completion on the 15th April 2016. Therefore, reference dates occur under the contract, at any time in the 28 calendar days between the 15th April 2016 and the 13th May 2016.
64. I note the words of the contract say “payment claims” (plural) may be made within 28 days of the issue of a Certificate of Practical Completion, but not how many claims may be made in that period. I assume the intention may have been one; however, the contract at 1.61(b) of the Special Conditions of Contract does not use words to the effect of ‘Once within 28 days of the issue of a
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Certificate of Practical Completion’ to identify the existence of a single reference date, it simply says “claims may be made” in relation to (a), (b) and (c).
65. Option (c) is irrelevant here.
66. The contract at (a) specifies the dates on which claims may be made in the Annexure Part A, however (b) is different, it only specifies a period within which claims (plural) may be made.
67. Therefore, I think giving the words in the contract their normal meaning, the inescapable conclusion is that all of the days between the 15th April 2016 and the 13th May 2016 inclusive are reference dates and claims (multiple – one per day perhaps) may be made on some or all of those days.
68. In that circumstance such a claim may have a reference day on the day the claim is made or any other day before the claim date and after the 15th April 2016 where that earlier reference date had not been extinguished. Therefore, conceivably the Claimant’s contention on its QBCC application form that the reference date is the 15th April 2016, is correct, if there are no other claims in that period. The reference date could also be the day it was made, the 30th April 2016 or any day in between which has not been extinguished by an earlier claim.
69. Section 12 of the Act provides a right to make a claim “From each reference date under a construction contract”, it does not allow for that right to extinguish other than in the circumstances in s.17A which do not apply here. Any contention (and there is none here) that the right to make a claim extinguishes after the 28-day period within which any unextinguished reference date(s) are created, would be to seek to contract out of the right to make a claim “from each reference date”.
70. Therefore, the words “within 28 days” for the purposes of the Act must be words which relate to the existence of a reference date; and not a period within which a claim must be made after the reference date has already arisen, a reference date from which a Claimant might then make a claim within a period only limited by s17A and unencumbered by any 28-day period. In other words, the reference date occurs within that 28-day period, it is not a period within which a claim under the Act must be made. A claim may be made “from” any of those reference dates until that right extinguishes under s17A.
71. I have no submission that more than one claim was served in the period 15 April 2016 to 30 April 2016.
72. I am satisfied the reference date “worked out under, the contract as the date on which a claim for a progress payment may be made for construction work carried out or undertaken to be carried out, or related goods and services supplied or undertaken to be supplied, under the contract”6; is any day between the 15th April 2016; the date “of the issue of a Certificate of Practical Completion7” and twenty-eight days later on the 13th May 2016.
73. As this claim was made on the 30th April 2016, then in the absence of any other claim being made on or after the 15th April 2016, I am satisfied that the Claimant’s submission, that the reference date is the 15th April 2016, a date within 28 days; as defined; of the date on which the Superintendent issued a Certificate of Practical Completion, is correct, as would be any other date it stated between the 15th April 2016 and the 13th May 2016, inclusive.
74. I disagree with the Respondent that the reference date is the 13th April 20168; which is the date it says the Superintendent certified as the Date of Practical Completion; that date is irrelevant for the purposes of ‘working out’ the date a payment claim may be made under the contract. The trigger for the start of the 28-day period, on any one of which a reference date occurs and from which a claim may be made, is the date the certificate is issued, which occurred on the 15th April 2016.
75. I note the Respondent’s reference to the decision in John Holland Pty Ltd v Coastal Dredging & Construction Pty Limited & Ors [2012] QCA 1509. I have applied the contract with regard to working out the reference date and am satisfied I comply with that decision.
6 From the definition of ‘reference date’ in schedule 2 of the Act 7 Clause 42.1(b) as amended by the Special Conditions of Contract 8 At [3.1] on page 10 of the response 9 Adjudication Response at Schedule 2 to submissions
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76. Therefore, as the Claimant’s submission is that the reference date from which it relies to make this payment claim is the 15th April 2016, where that date is one of the 28 reference dates available to it between the 15th April 2016 and the 13th May 2016; and where I do not accept the Respondent’s position that the reference date is the 13th April 2016, then I shall accept that submission is correct.
77. I would have accepted any date from the 15th April 2016 until the 3rd May 2016 as a date upon which the Claimant could have relied to make its claim.
78. There is no requirement in the Act for a Claimant to identify the reference date to which a claim relates. The test is, that one must be available to it, for the claim to be valid. I am satisfied that one is.
79. I am satisfied that there are 12 unextinguished reference dates available to it in the 18 calendar day period between the 15th April 2016 and the date the claim was deemed to have been made under the contract on the 3rd May 2016, one of which is the 15th April 2016.
Due Date for Payment
80. The Act at s.15(1) provides for the due date for payment:
“15 Due date for payment
(1) A progress payment under a construction contract becomes payable—
(a) if the contract contains a provision about the matter that is not void under section 16 or under the Queensland Building and Construction Commission Act 1991, section 67U or 67W—on the day on which the payment becomes payable under the provision; or
(b) if the contract does not contain a provision about the matter or contains a provision that is void under section 16 or under the Queensland Building and Construction Commission Act 1991, section 67U or 67W—10 business days after a payment claim for the progress payment is made under part 3.”
Business Days
Reference Dates Available
Friday, 15 April 2016 1Date Certificate of PC
issued
Saturday, 16 April 2016 No 1
Sunday, 17 April 2016 No 2
Monday, 18 April 2016 2 3
Tuesday, 19 April 2016 3 4
Wednesday, 20 April 2016 4 5
Thursday, 21 April 2016 5 6
Friday, 22 April 2016 6 7
Saturday, 23 April 2016 No 8
Sunday, 24 April 2016 No 9
Monday, 25 April 2016 7 10
Tuesday, 26 April 2016 8 11
Wednesday, 27 April 2016 9 12
Thursday, 28 April 2016 10 13
Friday, 29 April 2016 11 14
Saturday, 30 April 2016 No 15 Claim Served
Sunday, 1 May 2016 No 16
Monday, 2 May 2016 Labour Day 17
Tuesday, 3 May 2016 12 18 Deemed date made
Wednesday, 4 May 2016 13 19
Thursday, 5 May 2016 14 20
Friday, 6 May 2016 15 21
Saturday, 7 May 2016 No 22
Sunday, 8 May 2016 No 23
Monday, 9 May 2016 16 24
Tuesday, 10 May 2016 17 25
Wednesday, 11 May 2016 18 26
Thursday, 12 May 2016 19 27
Friday, 13 May 2016 20 28
Date
Calendar Days Comment
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81. The Claimant says in the application form that the due date for payment is the 24th May 2016 and the Respondent says it is the 16th May 2016 in its response10.
82. The Claimant quotes a QBCC licence number of 1088732 in its application form.
83. I am bound by the Act and the parties have had ample opportunity to address the issue, including the applicability of the QBCC Act.
84. I am satisfied that the construction of the Sunnybank Hills RACF Stage 1 at 330 Jackson Road, Sunnybank Hills, Queensland fits the definition of ‘building work’ in Schedule 2 of the QBCC Act
85. I am further satisfied that the contract does not fit the definition of construction management trade contract or subcontract and hence s67U of the QBCC Act does not apply.
86. Section 67W of the QBCC Act says:
“67W Void payment provision in commercial building contract
A provision in a commercial building contract is void to the extent it provides for payment of a progress payment by a contracting party to a contracted party later than 15 business days after submission of a payment claim.”
87. The contract at clause 42 as amended by Special Condition of Contract 1.61(c) says payment must be made; subject to the contract; no later than 15 business days after the Claimant issues a payment claim to the Superintendent. Therefore s.15(1)(a) of the Act applies.
88. This clause is not void under s.67W of the QBCC Act.
89. I disagree with the Respondent that payment should be made within 10 business days11 of issue of a payment claim, the contract says 15 business days.
90. Fifteen business days; as defined; after the deemed date the claim was made (the 3rd May 2016) is the 24th May 2016.
91. I agree with the Claimant on its application form.
92. The Due Date for Payment is the 24th May 2016.
Amount of a Progress Payment
93. Section 13 of the Act provides:
“The amount of a progress payment to which a person is entitled in relation to a construction contract is—
(a) the amount calculated under the contract; or
(b) if the contract does not provide for the matter, the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out, or related goods and services supplied or undertaken to be supplied, by the person, under the contract.”
94. The contract does not provide for the amount of a progress payment therefore s13(b) applies.
Valuation of construction work and related goods and services
95. Section 14 of the Act provides:
“Valuation of construction work and related goods and services
(1) Construction work carried out or undertaken to be carried out under a construction contract is to be valued—
(a) under the contract; or
(b) if the contract does not provide for the matter, having regard to—
(i) the contract price for the work; and
(ii) any other rates or prices stated in the contract; and
10 At [18] on page 104 11 At [18] on page 104 of the adjudication response
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(iii) any variation agreed to by the parties to the contract by which the contract price, or any other rate or price stated in the contract, is to be adjusted by a specific amount; and
(iv) if any of the work is defective, the estimated cost of rectifying the defect.
(2) Related goods and services supplied or undertaken to be supplied under a construction contract are to be valued—
(a) under the terms of the contract; or
(b) if the contract does not provide for the matter, having regard to—
(i) the contract price for the goods and services; and
(ii) any other rates or prices stated in the contract; and
(iii) any variation agreed to by the parties to the contract by which the contract price, or any other rate or price stated in the contract, is to be adjusted by a specific amount; and
(iv) if any of the goods are defective, the estimated cost of rectifying the defect.
(3) For subsection (2)(b), for materials and components that are to form part of any building, structure or work arising from construction work, the only materials and components to be included in the valuation are those that have become or, on payment, will become the property of the party or other person for whom construction work is being carried out.”
96. In clause 42.1, the contract does not specifically deal with how the Superintendent is to make its assessment of the value of contract work completed; it merely says the Superintendent shall show the calculations employed by it in determining the value of work completed.
97. The contract does allow for valuation of things such as liquidated damages at clause 35, delay costs at clause 36 and at clause 40.5 allows for the method of valuing variations to the work.
98. Therefore, I am satisfied that valuation of the originally contracted works is to be made under s.14(1)(b) and s14(2)(b) and the valuation of any variation, liquidated damages and delay costs is to be made under s14(1)(a) and s14(2)(a).
99. I have already said above, under the heading “Scope of this Determination”, that I do not have jurisdiction to order the return of Security held in the form of bank guarantees.
100. Similarly, I have no jurisdiction to determine the Date for Practical Completion, or the Date of Practical Completion.
101. However; where the contract allows for payment of delay costs, or the imposition of liquidated damages and where the valuation of those costs or damages under the contract is to be determined by a calculation involving a number of days by reference to those two dates; then I am satisfied that I may make an assessment of those dates based upon the submissions made to me, as part of the valuation exercise under s14(1)(a). The dates in that circumstance, are merely variables in the contract’s valuation mechanism for those costs or damages.
102. Thus any reference I make in this decision to the Date for Practical Completion or to the Date of Practical Completion are to dates in relation to my valuation exercise under the contract and not to a determination of them under the contract, as I have no jurisdiction to make such a determination.
Interest
103. Section 15 of the Act provides:
“(1) A progress payment under a construction contract becomes payable—
(a) if the contract contains a provision about the matter that is not void under section 16 or under the Queensland Building and Construction Commission Act 1991, section 67U or 67W—on the day on which the payment becomes payable under the provision; or
(b) if the contract does not contain a provision about the matter or contains a provision that is void under section 16 or under the Queensland Building and Construction Commission Act 1991, section 67U or 67W—10 business days after a payment claim for the progress payment is made under part 3.
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(2) Subject to subsection (3), interest for a construction contract is payable on the unpaid amount of a progress payment that has become payable at the greater of the following rates—
(a) the rate prescribed under the Civil Proceedings Act 2011, section 59(3) for a money order debt;
(b) the rate specified under the contract.
(3) For a construction contract to which Queensland Building and Construction Commission Act 1991, section 67P applies because it is a building contract, interest is payable at the penalty rate under that section.”
104. I cannot see a submission on the rate of interest from the Claimant, it merely says interest is payable as I decide.
105. The Respondent submits the rate of interest to be paid shall be calculated under s.15(2) of the Act. I agree with that proposition.
106. It then informs me that the rate of interest on a money order is currently 7.75% and that the rate of interest for overdue payments in the contract Annexure Part A is 6.5%.
107. It makes no submission on why I should use them, which of those two I should use or how I should use them.
108. I am bound by the Act and the parties have had ample opportunity to address the issue, indeed the Respondent quotes the words at the beginning of s.15(2) “Subject to subsection 3” and then ignores them.
109. I have already decided that this is work to which the QBCC Act applies and I am satisfied this contract is a building contract as defined in Schedule 2 and thus s.67AAA of that Act.
110. Therefore; whilst clause 42.9 of the Standard Conditions is unamended by the Special Conditions of Contract and says the rate of interest on overdue payments is the amount in the Annexure12 or if nothing is stated, then 18%; as the contract is one “to which Queensland Building and Construction Commission Act 1991, section 67P applies because it is a building contract, interest is payable at the penalty rate under that section”.
111. The penalty rate under s67P of the QBCC Act is:
“(a) the rate made up of the sum of the following—
(i) 10% a year;
(ii) the rate comprising the annual rate, as published from time to time by the Reserve Bank of
Australia, for 90 day bills; or
(b) if the building contract provides for a higher rate of interest than the rate worked out under paragraph (a)—the higher rate.”
112. The rate currently published by the Reserve Bank of Australia for 90-day bank bills is 1.73%
113. Therefore, the penalty rate under the QBCC Act is 11.73%
114. The Rate in the contract is 6.5%.
115. The rate of interest is therefore the higher figure of 11.73%.
The Amount Submitted for Determination
116. The Claimant seeks adjudication of its payment claim dated the 30th April 2016 for an amount of $1,456,180.09 (Exclusive of GST)
117. The Respondent scheduled an amount of -$861,335.40; but I calculate from its figures an amount of -$861,335.87 exclusive of GST; which is effectively $0.00 leaving an amount in dispute of $2,317,515.97 (Exclusive of GST).
118. My reconciliation of these amounts is shown at Appendix B to this decision.
12 item 39 of the Annexure Part A states the rate to be 6.5%.
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119. There are thirty-nine (39) areas of difference between the parties at the time of the payment schedule which may be summarised thus:
(a) There are 9 items where the difference between the claimed amount and the scheduled amount is $1 or less. Six of these differences were taken to the scheduled amount and 3 were not. Of those that were taken to the scheduled amount ($0.61), 5 relate to variations where the Respondent says it has already paid the amount in claim No.18 (Variations 58, 61, 66, 83 & 97) and one is a small difference (-$0.75) in the amount paid to date. The 3 which are said to be different but then not taken to the scheduled amount ($1.15) are Variations 63, 70 & 86.
I will not address these 9 items further in my decision but shall use the figures put before me and apply those.
(b) There are 9 items totalling $80,599.37 where the Respondent says it has already paid the amount in the previous claim No.18. Four (4) of these are contracted works (Hydraulic Services, Mechanical Services, Electrical Services & Landscaping), 1 is a Provisional Sum (Nurse Call System), 4 are for variations (Variation 28, 90, 100 & 102).
As the amount payable (either positive of negative) is a calculation of the value of work to date less amounts paid to date, where the scheduled amount equals the total claim to date for these items and the amount paid to date is the same (bar a few cents), then effectively these 9 items are not in contest at all; and
(c) There are 21 significant differences:
(i) 18 are disputed variations (Variations 16, 45, 47, 96, 103 to 109 and 112 to 118); and
(ii) 3 are disputed backcharges / set-offs / deductions.
It is these 21 items which framed the dispute between the parties at the time of the payment schedule.
120. The Claimant has conceded eight of the variations in its application. They are variations 96, 103, 104, 105, 106, 107, 108 and 10913. It has also conceded $10,414.00 of the amount claimed for variation 113. It concedes that if it is successful in variations 113 for extension of time (“EOT”) 10 and variation 114 for EOT 15 then variation 16 is valued at Nil.
121. In the adjudication response the Respondent has conceded $37,366.3014 of the rectification costs it seeks for works it says have been completed by others.
122. The Claimant made no further concessions in its claimant’s reply.
123. I will deal with those disputed items under the heading “Matters for Determination”.
The Payment Claim
124. Whilst it refers to the payment claim as one that was “purported” to have been served, the Respondent does not otherwise contest that the payment claim complies with the Act.
125. In Appendix A of this decision; I have determined that the payment claim passes all of the tests to comply with the Act.
126. As the payment claim fulfils all the requirements of the Act and was served in accordance with the Act I decide that it is a valid payment claim under the Act.
The Payment Schedule
127. The Claimant does not contest that the payment schedule complies with the Act and in Appendix A of this decision; I have determined that it passes all of the tests to comply with the Act.
128. As the payment schedule complies with all of the requirements of the Act and was served in accordance with the Act, I decide that it is a valid payment schedule under the Act.
13 Application at [617] 14 Response at 2.7
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The Adjudication Application
129. The Respondent does not contest that the adjudication application complies with the Act and in Appendix A of this decision; I have determined that it passes all of the tests to comply with the Act.
130. As the application fulfils all the requirements of the Act and was served in accordance with the Act I decide that it is a valid adjudication application under the Act.
131. The application consists of two (2) document boxes containing thirteen (13) folders.
The Adjudication Response
132. In Appendix A of this decision I have already decided that a payment schedule was served within the time specified in s.18A and thus as s.24(1) has been complied with, s.24(2) does not preclude an adjudication response.
133. In Appendix A of this decision; I have determined that the adjudication response passes all of the tests to comply with the Act.
134. As the adjudication response fulfils all the requirements of the Act and was served in accordance with the Act I decide that it is a valid adjudication response under the Act.
135. The adjudication response consists of six (6) document boxes containing sixteen (16) folders and a USB stick.
136. With regard to the USB stick, the Respondent says on the covering letter to the response that the files contained thereon are soft copies of the adjudication response submissions. I have taken that to mean soft copies of the hard copy documents in the six boxes of files. I cannot see any other material on the USB which is not such a copy with the exception of the supporting documents to Mr. Payne’s report. I have not checked every part of the 961Mb of files on the USB is word for word the same as the hard copy.
The Claimant’s Reply
137. On the 18th July 2016 I received a letter from Vincent Young on behalf of the Claimant informing me15 that it would be giving me a claimant’s reply under s.24B of the Act and seeking an extension of time within which to do so.
138. I replied that same day16 with regard to timing and also said I agreed the response contained new reasons for withholding payment which were not in the payment schedule and thus the Claimant could give me a reply under s24B. I identified two examples of instances where I was satisfied the Respondent wished to rely on new reasons17.
139. On the afternoon of the 19th July 2016, my Agent received an unsolicited email from the Respondent attaching a three-page letter and three authorities. The letter is attached at Appendix D
140. In that letter the Respondent disagreed that the specific instances where the Claimant said there were new reasons, are new reasons; indeed, it contests that there are any new reasons in its adjudication response; and then asks me to reconsider what I had said in relation to there being new reasons.
141. I replied as shown at Appendix E.
142. I am bound to follow the processes of the Act in allowing submissions and replies to submissions.
143. The Respondent complains in its letter at Appendix D, that it has not been given the opportunity to respond to matters the subject of the Vincent Young letter on behalf of the Claimant of the 18th July 2016 wherein the Claimant advises me it shall be giving me a claimants reply and seeks an extension of time within which to do so.
15 Within the time provided in s.24B(7) 16 In a letter dated 18th July 2016 and headed “REPLY TO CLAIMANT’S NOTIFICATION UNDER SECTION 24B(7)” 17 One of which I am now satisfied is a reference to a submission which may not be properly made, as opposed to a new reason.
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144. I confirm what I said at (1) in my letter at Appendix E.
145. There are specific measures of natural justice required to be given to claimants and respondents during the process of payment claim, payment schedule, adjudication application, adjudication response; and in the case of complex payment claims; a claimant’s reply.
146. In each instance the Act identifies within what period a party has to produce a document in reply, it also identifies what right of reply the other party has to that document; if any at all. Failure to meet those deadlines can severely hamper and in many cases be fatal to a party’s chances of successfully prosecuting its position.
147. In the process outlined in s24B, the Respondent is not mentioned or given any role to play in whether the Claimant may give me a claimant’s reply.
148. Indeed, with respect to whether the Claimant may give me one at all, I’m only given a role by way of the Claimant having to inform me that it will be giving me one outside of a 5- business day period after it receives a copy of the adjudication response, or if it wants an extension of time within which to give me one. That is a notification such that I will be aware of when my decision is due. I am given no right to approve, or disapprove whether or not a claimant may give a claimant’s reply.
149. The parties agree and I concur that the courts have not considered s24B of the Act.
150. Therefore, there are no specific authorities to inform me as to whether there is a residual measure of natural justice the court requires me to give a respondent in the circumstance where I find, or it complains that submissions in a claimant’s reply are not strictly in reply to a new reason.
151. In its letter at Appendix D, the Respondent says there are no new reasons in its adjudication response and thus that there should be no claimant’s reply.
152. That letter was sent before the claimant’s reply was given to me and therefore not a specific complaint on the actual contents of the claimant’s reply. In my letter in reply18 to it I said:
“Whilst there is no legislated process in the Act for such a letter, because the letter deals with my jurisdiction to consider material and the legislated process for a claimant’s reply in the Act, I shall respond.”
153. I am satisfied that a party may make a jurisdictional submission at any time, because without jurisdiction I cannot decide anything in s26(1).19
154. The sentence in italics above alerts the parties that I will accept; and that I will deal with; such unsolicited jurisdictional submissions when I receive them.
155. Therefore, as the Respondent has been given a copy of the claimant’s reply under s24B(6)20; within 2 business days of it having been given to me; it has had the period between when it received that copy and the date of this decision, to make an unsolicited jurisdictional submission on the submissions in the claimant’s reply, as to whether I can have regard to them. It did not.
156. It has also had; and took; the opportunity to make submissions under my Request for Further Submissions No. 1 (“RFFI1”) as to not only what the law is in regard to what is a ‘new reason’ but it took the opportunity; at schedule 1; to make further jurisdictional submissions on the Claimant’s examples of them.
157. The statement I made in my RFFI1 letter that I request “a further submission from the Respondent on paragraphs [10]-[22] inclusive of the claimant’s reply reproduced below and overleaf; and those submissions only, I shall have no regard for any other submission,” only limited the further submission I was seeking. In no way did it limit the Respondent’s ability to make a jurisdictional submission at any time.
158. The Respondent did include such jurisdictional submission on the specifics of the claimant’s reply I received21; and I am satisfied it has not been denied any measure of natural justice to do so.
18 Annexure E 19 [2007] NSWCA 19 at [48]-[49] 20 Refer Appendix C at s24B(6) 21 At Schedule 1 to the Respondents further submission to RFFI1.
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159. This situation is no different to that which existed for all sized claims under the Act prior to its amendment in 2014, in relation to standard claims since, and at all times in NSW from where many of the authorities arise.
160. A Claimant in those circumstances, faced with an adjudication response which it believed went beyond the scope of a payment schedule; whilst not offered a specific opportunity in the legislation to make such a submission could none-the-less make a jurisdictional submission on the issue of s24(4) and the adjudicator could seek further submissions.
161. In that regime it was always for that claimant to take that opportunity to make a jurisdictional submission, there was no residual measure of natural justice that the Act required of me to seek further submissions from a respondent every time I applied s24(4) of the Act, unless I received a jurisdictional submission made by such a claimant and was of a mind to have regard for it.
162. To continually seek further submissions each time a decision was made to apply s24(4) to a standard payment claim or to encourage endless jurisdictional submissions would seem to defeat the purpose of the Act.
163. However, in relation to s24(4) and standard payment claims, we have the benefit of the court authorities which tempers the number and size of any such jurisdictional submissions.
164. In relation to s24B there are none.
165. Hence I have been careful to address each issue on the basis of the measures of natural justice or procedural fairness the Act requires to be given; accepting and mindful that the lack thereof can be brutal in some cases; utilising the principles addressed in the available s24(4) authorities and submissions from the parties on the applicability of them to s24B; to inform a view as to the operation of s24B.
166. The submissions on s24B in this adjudication are significant as the information contained in the claimant’s reply is voluminous and the Respondent says its adjudication response contains no new reasons. Hence the gap between the parties on the applicability of that document to this adjudication is as large as it can be. Therefore, the amount of time to address the s24B issue is significant. The assistance of a court authority on s24B would have obviated much of it. However, sadly, none exists.
167. The Respondent did make such a jurisdictional submission in reply to the Claimant’s notification of giving me a claimant’s reply in its letter at Appendix D, but that was before the claimant’s reply was given to me.
168. It is the claimant’s reply which holds the submissions to which I may have regard in making my decision, not the Claimant’s notification letter of the 18th July 2016.
169. The Respondent’s points in its letter at Appendix D are not submissions as to the specific contents of the claimant’s reply, nor chronologically could they be.
170. Therefore, consistent with the method of dealing with s24(4) under the old Queensland system which continues for standard payment claims in the Act post-2014 and the NSW Act from whence the authorities derive; absent any jurisdictional complaint of the sort to which I refer above; where I am satisfied that a submission in the claimant’s reply is in reply to a new reason, I have not requested any further submission. At (3) in my letter at Appendix E, I said:
“When and if I receive a claimant’s reply, then should I be unsure whether a claimant’s reply submission is, or is not in reply to a new reason, then I shall afford the parties natural justice by seeking further submissions on that issue.”
171. In making my assessments in Appendix C, I have not found myself unsure in that regard; and hence have found no need to request a further submission. My RFFI1 was not on specifics of the claimant’s replies to new reasons, but on what was the law in relation to new reasons.
172. The Claimant has already been afforded the opportunity to make a submission on why each of the things it says is a new reason; is a new reason, in its claimant’s reply and to respond to the Respondent’s legal submissions in RFFI1 on what is a new reason. It has not been denied any measure of natural justice.
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173. As the Respondent says that none of its submissions in the Adjudication Response is a new reason, and where it made additional jurisdictional submissions attached in schedule 1 to its further submissions to RFFI1, on the specific elements of the claimant’s reply and to which I have decided I shall have regard22; then it has not been denied any measure of natural justice.
174. In its further submission to RFFI1 the Respondent was careful to identify its new submissions to RFFI1 and then keep the jurisdictional submissions on the specifics of the claimant’s reply in schedule 1 entirely separate. It makes a complaint in those Schedule 1 submissions that it is denied procedural fairness. I deal with that issue below under the heading “The contents of the claimant’s reply”.
175. I repeat, the Act gives me no specific right to approve of whether the Claimant may give me a claimant’s reply or not. It is only as a matter of practicality that I have read the payment schedule and scanned the submissions in the adjudication response to see if there is but one new reason and that is only because if there were not, then the deadline for my decision is earlier than it might be, if a claimant’s reply may be given.
176. The only trigger for the Claimant being able to give a claimant’s reply is if the adjudication response contains at least one new reason. The claimant’s reply is then strictly limited to replying to that and any other new reason. It is not; as the Respondent correctly points out in its letter of the 19th July 201623 and more generally at [9(b)] of the RFFI1 submission; “an invitation to the Claimant to respond at large to the adjudication response or to remedy deficiencies in its adjudication application.”
177. I note that the new reasons I identified as being the triggers were:
(a) An admission by the Respondent at section 9.4 that its submissions on scheduling and delay were only broadly consistent with its payment schedule. It begged that in the case of any inconsistency, I use the submissions in the adjudication response (those of Mr. Ash) rather than those in the payment schedule (those of Mr. Jeanneret-Gris).
I was satisfied at the time; and having read all of the submissions now and having made the decisions in Appendix C including that with regard to Mr Ash’s report; am satisfied now; that the report of Mr Ash goes well beyond the scope or ambit of the payment schedule reasons given by Mr. Jeanneret-Gris and hence become new reasons for withholding
Mr Ash’s report was not in the payment schedule and therefore the Claimant had a right of reply to it where it contains the reasons for withholding payment based upon its critical path analysis of EOT 70 onwards. That critical path analysis cannot be divorced from the analysis of the delays to that point and hence I have accepted the whole of the report. I deal with that under the heading “Adjudication Response – Expert’s Reports” below.
(b) That the adjudication response submissions on the delay claims were substantially different to that in the payment schedule and indeed substantially more complex, so as to render the adjudication response submissions, new reasons. In that regard I referred to the decision of Palmer J. in Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 generally; and in particular at [76]-[78].
I was satisfied at the time; and am satisfied now having read all of the submissions and made the decisions in Appendix C; including that with regard the Respondents failure to address the critical path in its payment schedule; that the adjudication response submission of the Ash report addresses those critical path assertions in the payment claim; at least with respect to EOT’s in the payment claim after EOT16; for the first time. Thus it became the basis for a new reason.
Mr Ash’s report was not in the payment schedule and therefore the Claimant had a right of reply to it.
An entitlement to an extension of time under clause 35.5(d)(i) of the contract only arises where the delay event effects the critical path.
22 In my letter at Annexure E 23 Appendix D
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178. Those triggers were at the time; and are now; comfort for me in being satisfied that the Claimant had a right to give a claimant’s reply and hence that the deadline for my decision has been affected. That the right has been triggered does not mean I will have regard for all, or any of the claimant’s reply. As I said in my letter of the 19th July 2016:
“I am satisfied there are new reasons in the Adjudication Response and therefore under section 24B(1) a claimant’s reply may be given.
How much of it is considered in making my decision is another matter entirely.
A Claimant who includes significant and costly to produce materials in a claimant’s reply, which are not in reply to a new reason, risks having wasted the cost of those submissions.
It is for the Claimant to comply with section 24B(2) and not for me to direct the Claimant to where it should make those submissions.”
179. I made that warning to the Claimant on the basis that the Respondent had said none of its voluminous adjudication response contained new reasons and therefore the paring exercise to which I refer below would be a significant one should the Claimant make significant submissions in a claimant’s reply which were not in reply to new reasons. It did so and the exercise was significant.
180. The Claimant may neither identify that same reason I identified, or reply to it in its claimant’s reply. I said in my letter of the 19th July 201624, “It is not inconceivable; should the claimant’s reply contain only material which is not in reply to new reasons; that I may not be able to have regard for any of it. I will not know until it is delivered”.
181. I repeat that I am satisfied that a submission as to my jurisdiction may be made at any time, as without jurisdiction I am not the adjudicator who might decide those things in s.26(1). Equally I am satisfied that a submission as to what I can and cannot consider, is one that goes to my jurisdiction to consider those things. Hence I have had regard for the Respondent’s letter of the 19th July 2016 and have responded to it in terms of Appendix E. I apply the same rationale for jurisdictional submissions in the claimants reply.
182. In that letter I said “In the same manner that a payment schedule to a standard payment claim will be pared down by an Adjudicator to remove any new reasons which offend section 24(4), a claimant’s reply will be similarly pared down so that it only contains replies to new reasons which do not offend section 24B(2)”.
183. At Appendix C, I undertake that paring down process with regard to the claimant’s reply given to my Agent on the 25th August 2016.
184. I make a decision on whether each submission in the claimant’s reply is indeed in reply to a new reason for withholding given in the adjudication response or not; and therefore to what I may have regard, as I have no jurisdiction to consider one that is not. or a jurisdictional submission.
185. In making those decisions I have had regard for the specifics of the Respondent’s letter at Appendix D.
186. In Appendix A of this decision; I have determined that the claimant’s reply passes all of the tests to comply with the Act.
187. As the claimant’s reply fulfils all the requirements of the Act and was served in accordance with the Act, I decide that it is a valid claimant’s reply under the Act.
188. The claimant’s reply consists of one (1) document box containing four (4) folders and a USB stick.
RFFI1 – What is a new reason?
189. When I received the claimant reply, it contained a significant number of submissions on what the Claimant alleged to be new reasons. It also contains submissions on what is the law in regard to what constitutes a new reason; in effect jurisdictional submissions on to what I may have regard.
190. As the Respondent had not had the opportunity to address those submissions, I made a my RFFI1 from it as follows:
24 Appendix E
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“Background
In my letter of the 19th July 2016, I said at [3]:
“When and if I receive a claimant’s reply, then should I be unsure whether a claimant’s reply submission is, or is not in reply to a new reason, then I shall afford the parties natural justice by seeking further submissions on that issue.”
In its claimant’s reply, the Claimant makes submissions on its entitlement to respond to new reasons and it is correct in saying the courts have yet to consider s24B of the Act.
My decision on whether I have jurisdiction to have regard to specific submissions in the reply must be based upon the parties’ submissions. The Claimant has made jurisdictional submissions as to what I can consider in its reply. The NSW authorities to which the Claimant refers seem to me to be relevant, however the Respondent has not had the opportunity to consider those and hence I am mindful to allow the Respondent an opportunity to respond to those submissions before I have regard for them in my decision.
Request
I request a further submission from the Respondent on paragraphs [10]-[22] inclusive of the claimant’s reply reproduced below and overleaf; and those submissions only, I shall have no regard for any other submission.”
191. The Respondent made its submission and the Claimant made comment on the Respondent’s submission within the deadlines I set.
192. In its comments on the Respondent’s submission, the Claimant says the Respondents RFFI1 submission goes beyond what I had requested.
193. I agree with that submission.
194. My request was based upon the heading ‘Background’. It was a request to address the Claimant’s submissions on its entitlement to respond to new reasons. It was not an invitation to address the specific new reasons addressed in the claimants reply. My request was limited to paragraphs [10]-[22] of the claimant’s reply.
195. Never-the-less the Respondent did; at schedule 1 in paragraphs [78]-[105] of its submission to RFFI1; make submissions on paragraph 23 onwards in the claimant’s reply.
196. However, having read each of those submissions at [78]-[105] of the Respondent’s submission to RFFI 1, none of them is an attempt to deal with a deficiency in its adjudication response by adding new material; which I note it accuses the Claimant of doing in its claimants reply. Each is solely a submission as to my jurisdiction to have regard for submissions in the claimant’s reply.
197. I have already decided that I cannot ignore a jurisdictional submission once I am aware of it25. In that regard I disagree with the Respondent at [98]-100] of its submission to RFFI1.
198. I have put the parties on notice that I shall do so and of the method I would adopt to pare down the claimant’s reply to only those submissions which are in reply to a new reason26. In this case the Claimant has had the opportunity to comment in its comments on the Respondent’s submission to RFFI1. It chose not to do so, I had alerted it that it could have done so then, or at any time; and hence has not been denied any measure of natural justice.
199. Whilst I agree the Respondent’s submission goes beyond what I asked, [78]-[105] are jurisdictional submissions and I have had regard for them with respect to what I can and cannot consider in the claimant’s reply in my assessment at Appendix C to this decision.
New reasons and the expansion of existing reasons
200. I have already dealt with the contents of the Respondent’s unsolicited letter of the 19th July 2016. That letter dealt with Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 at [76] which I had raised in my letter of the 18th July 2016 in relation to the claimants reply. The Respondent deals again with this issue in its submission to RFFI1.
25 [2007] NSWCA 19 at [48]-[49] 26 Refer my letter at Annexure E
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201. In the claimants reply, the Claimant addresses its entitlement to respond to new reasons at [10]-[22]
202. I have afforded the Respondent the opportunity to respond to those paragraphs in my RFFI1 and the Claimant has taken the opportunity to comment on the Respondent’s submission.
203. I agree with the Respondents submissions at [1]-[10] of its submission to RFFI1.
204. I disagree with the Respondent at [11] because I am satisfied that a jurisdictional submission may be made at any time. I either have jurisdiction or I do not. Other than jurisdictional submissions I agree with the balance of [11].
205. The parties agree the courts in Queensland are yet to deal with the issue of s24B, therefore any analysis of its effect; I think; is necessarily done by reference to the principles the courts have addressed in considering what is a new reason.
206. In my letter of the 19th July 2016 I made the analogy between the way an adjudicator would deal with the ‘adjudication response – claimants reply’ process for a complex claim and the ‘payment schedule – adjudication response’ process for a standard claim.
207. The payment schedule – adjudication response process in Queensland; for all claims up to December 2014 and for standard claims post the 2014 amendments; and that in NSW; from which many of the authorities arise; are essentially the same.
208. Section 24(4) of the Act prior to the December 2014 amendments had the same effect as the current amended s24(4) does for standard payment claims only. The amendment at that time allowed for a further process of claimants reply after the adjudication response for complex payment claims; those over $750,000 (exclusive of GST).
209. The claim the subject of this adjudication is a complex payment claim.
210. The new process for complex claims allows for new reasons to be given for withholding payment in an adjudication response which were not given in the payment schedule and where they are given then s24B gives the right to a Claimant to reply to the new reasons.
211. Section 24(4) of the Act in respect of standard payment claims is almost identical to s20(2A) of the NSW Building and Construction Industry Security of Payment Act 1999. (the “NSW Act”). Neither provision allows a respondent to include ‘new reasons’ for withholding payment in an adjudication response which were not included in a payment schedule.
212. Whilst there is a slight difference in the wording in the legislation, the authorities in each state have essentially followed the same path and in the case of the Queensland Courts on the decisions of their NSW counterparts.
213. These authorities deal with what are the boundaries around what is a reason for withholding payment which does not offend s24(4); and those which do.
214. I agree with the Respondent at [27]-[28] of its submission to RFFI1, all of the authorities are useful.
215. New reasons are defined in the Act at s24B(1):
“24B Reply to new reasons for withholding payment
(1) This section applies if, under section 24(5), the respondent includes in an adjudication response reasons for withholding payment that were not included in the payment schedule when served on the claimant (the new reasons).”
216. It seems to me that the rationale about what is a new reason is the same whether one is looking at a standard or complex claim, it is only the outcome of the existence of one, which differs.
217. In the case of a standard claim, the new reason cannot be considered and in the case of a complex claim then if it is a new reason then a Claimant has a right; should the correct processes be followed; to give the adjudicator a claimant’s reply to it.
218. In s26(2) I am only to have regard to submissions, including relevant documentation, which have been properly made by a claimant or respondent in support of their payment claim or payment schedule respectively.
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219. It is difficult to imagine that a new reason; that is, one included in an adjudication response and which was not contemplated by the payment schedule; could be in support of that payment schedule except in-so-far as in that they both seek to provide a rationale for withholding payment.
220. However, the amended legislation has included s24B without amending s26(2), hence I am satisfied I am able to consider new reasons given in reply to a complex payment claim.
221. I referred the parties to the decision of Palmer J. in Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 in my letter of the 18th July 2016.
222. Multiplex27 at [67] 28states (my emphasis):
“The evident purpose of s.13(1) and (2), s.14(1), (2) and (3), and s.20(2B) is to require the parties to define clearly, expressly and as early as possible what are the issues in dispute between them; the issues so defined are the only issues which the parties are entitled to agitate in their dispute and they are the only issues which the adjudicator is entitled to determine under s.22. It would be entirely inimical to the quick and efficient adjudication of disputes which the scheme of the Act envisages if a respondent were able to reject a payment claim, serve a payment schedule which said nothing except that the claim was rejected, and then “ambush” the claimant by disclosing for the first time in its adjudication response that the reasons for the rejection were founded upon a certain construction of the contractual terms or upon a variety of calculations, valuations and assessments said to be made in accordance with the contractual terms but which the claimant has had no prior opportunity of checking or disputing. In my opinion, the express words of s.14(3) and s.20(2B) are designed to prevent this from happening.”
223. I am satisfied this part of Multiplex is authority for the contention that the respondent to a payment claim must define the issues in dispute in its payment schedule. If it does not; in relation to a complex payment claim in Queensland; then if it raises that issue better defined as a reason for withholding payment in an adjudication response, is a new reason for withholding payment in that adjudication response.
224. The Respondent at [45] in its submission to RFFI1 seems to say as long as the issue has been previously dealt with by way of claims etc. that will be sufficient to notify the Claimant as to its reasons for withholding. I disagree, the payment schedule must still contain a level of particularity sufficient to identify the issue such that the Claimant might be aware that the issue is that which has been previously agitated. The payment schedule cannot be so brief, as to not do so. Certainly it cannot contain nothing about that issue which might indicate to the Claimant that it is an issue it must contest in an application. In that regard I agree with [43] in that same submission.
225. The Respondent refers me29 to the decision of Brereton J. in Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129 at [128]-[133]. I accept that the test shown at [129] therein; albeit referring to the amplification of a payment claim in an application; applies equally to the amplification of a payment schedule into an adjudication response:
“The test is whether the additional material is or is not within the scope or ambit of the payment claim. If it is, then evidentiary and argumentative material to support it can be included in the adjudication application.”
I shall apply that test.
226. However, it is important to note that in Holmwood, the plans at issue were in the hands of Holmwood before the payment claim was made, were referred to in the payment claim and then brought into the application by Halcat. The court found there was no denial of natural justice in that circumstance.
227. The situation faced by me is that the expert reports of which the Claimant complains, have never been in the hands of the Claimant (Grindley) prior to the adjudication response. Therefore, that part of [130] of Holmwood to which the Respondent has directed me, has to be read in terms of the
27 [2003] NSWSC 1140 28 Claimants reply at [16] which incorrectly references from [2004] NSWSC 258, it is from Multiplex at [67], RFFI1 Submission at [41]-[45] 29 At [47] in its RFFI1 submission
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rule above and the other tests from Multiplex above and below here. It will be a question of whether the reports do expand the scope or not.
228. Indeed, the court recognised the difference between the facts in Holmwood to those put to Einstein J.in John Holland Pty Limited v Cardno MBK (NSW) Pty Limited & Ors [2004] NSWSC 25830 where timesheets were offered in an adjudication application which were not referenced in the payment claim. I think this case supports the thrust of Holmwood.
229. The Respondent has also referred me to the decision of MacDougall J. in Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 at [56]-[60]. I think that case supports the contention in Holmwood31 regarding the submissions in an adjudication application needing to be within the scope and ambit of the payment claim. I repeat that I think the same applies to an adjudication response and a payment schedule.
230. That matter was unsuccessfully taken on appeal in The Minister for Commerce (formerly Public Works & Services) v. Contrax Plumbing (NSW) Pty. Ltd. & Ors. [2005] NSWCA 142 in which the Respondent directs me to [24]-[29 & [33]-37]32. The appeal reinforces that an adjudication application could not go beyond the scope or ambit of the payment claim. Again I am satisfied that same circumstance applies to the expansion of a payment schedule in an adjudication response in NSW and in Queensland to a standard payment claim.
231. In Queensland under the regime for complex payment claims, new reasons are allowed. Hence the scope of an adjudication response to an application based upon a complex payment claim, may go beyond that of the payment schedule by introducing new reasons.
232. A submission which is not duly made in NSW, can be a properly made submission in an adjudication response to a complex claim in Queensland.
233. Where the NSW authorities are useful is to show that where an adjudication response does go beyond the scope of; as opposed to supporting; the payment schedule, then that new material is a new reason and is something to which a Claimant may reply in a claimants reply under s24B.
234. I think the discussion on s34 of the NSW Act in Contrax on appeal supports my position on jurisdictional type submissions being made at any time and not limited by s24(4) or s24B.
235. The Respondent refers me to the decision of Macready AJ in Lanskey v Noxequin [2005] NSWSC 963 at [37]. I note that reference and say that it supports the contention in Multiplex33 at [70] with which I deal with below, that a claimant must be able to understand from a payment schedule, at least in broad outline, what is the issue between it and the respondent.
236. I also note the reference to the decision of MacDougall J. in Veolia Water Solutions v Kruger Engineering [2007] NSWSC 46 at [70]-[73] which brings together the decisions of Holmwood and John Holland34 together with that of Hodgson JA35 in Coordinated Construction Co. Pty. Ltd. v. Climatech (Canberra) Pty. Ltd. & Ors. [2005] NSWCA 22 at [24] in relation to expansion of a payment claim in an application.
237. In Multiplex at [68], (my emphasis):
“68 Section 14(3) requires that if the respondent to a payment claim has “any reason” for “withholding payment”, it must indicate that reason in the payment schedule. To construe the phrase “withholding payment” as meaning “withholding payment only by reason of a set-off or cross claim” is to put a gloss on the words which their plain meaning cannot justify. The phrase, in the context of the subsection as a whole, simply means “withholding payment of all or any part of the claimed amount in the payment claim”. If the respondent has any reason whatsoever for withholding payment of all or any part of the payment claim, s.14(3) requires that that reason be indicated in the payment schedule and s.20(2B) prevents the respondent from relying in its adjudication response upon any reason not indicated in the payment schedule. Correspondingly,
30 Page 15 of the RFFI1 submission 31 [2005] NSWSC 1129 32 At [49] in its submission to RFFI1 33 [2003] NSWSC 1140 34 [2004] NSWSC 258 35 With whom Basten JA agreed
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s.22(d) requires the adjudicator to have regard only to those submissions which have been “duly made” by the respondent in support of the payment schedule, that is, made in support of a reason for withholding payment which has been indicated in the payment schedule in accordance with s.14(3)”
238. I am satisfied this part of Multiplex is authority for the contention that the respondent to a payment claim must indicate any reason for withholding payment in the payment schedule. If it does not sufficiently indicate it in the payment schedule in response to a complex payment claim in Queensland; then if it raises that reason for withholding payment of a claim in an adjudication response, it is a new reason for withholding payment.
239. In Multiplex at [69]-[70]36 (my emphasis):
“69 A subsidiary argument which Mr Rudge appeared to advance in his oral submissions was that Multiplex had given a sufficient reason in its Payment Schedule for withholding payment of the claim in respect of Item 8 simply by stating that the claim was “rejected”; Multiplex had thereby complied with the requirements of s.14(3) and was permitted to amplify that reason in its Adjudication Response by giving particulars of valuations and calculations on the basis of which the claim had been rejected.
70 I am unable to accept this submission. For a respondent merely to state in its payment schedule that a claim is rejected is no more informative than to say merely that payment of the claim is “withheld”: the result is stated but not the reason for arriving at the result. Section 14(3) requires that reasons for withholding payment of a claim be indicated in the payment schedule with sufficient particularity to enable the claimant to understand, at least in broad outline, what is the issue between it and the respondent. This understanding is necessary so that the claimant may decide whether to pursue the claim and may know what is the nature of the respondent’s case which it will have to meet if it decides to pursue the claim by referring it to adjudication.”
240. I am satisfied this part of Multiplex37 is authority for the contention that the respondent to a payment claim must indicate the reason for withholding payment with sufficient particularity to apprise the other party of its meaning and if it does not, then in NSW and in regard to a Queensland standard payment claim, it shall not be able to amplify that reason in a later submission. If it does not apprise the other party of its meaning in its payment schedule; in relation to a complex payment claim in Queensland; then if it does expand on it in an adjudication response such that it is recognisably a reason for withholding payment of a claim in that adjudication response, it is a new reason for withholding payment.
241. I agree with the Respondent at [37] in its RFFI1 submission that the statement that reasons may be considered new if valuations, calculations etc. are produced to support a deduction in the adjudication response. is too broad. It will be a matter of extent which will hinge on a number of things not least of which is whether absent the new information, the Claimant was aware of what the payment schedule meant. Those things are dealt with in Multiplex.
242. In Multiplex at [76]38 (my emphasis):
“A payment claim and a payment schedule are, in many cases, given and received by parties who are experienced in the building industry and are familiar with the particular building contract, the history of construction of the project and the broad issues which have produced the dispute as to the claimant’s payment claim. A payment claim and a payment schedule must be produced quickly; much that is contained therein in an abbreviated form which would be meaningless to the uninformed reader will be understood readily by the parties themselves. A payment claim and a payment schedule should not, therefore, be required to be as precise and as particularised as a pleading in the Supreme Court. Nevertheless, precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute.”
243. I am satisfied this part of Multiplex is authority for the position that if the parties to a construction contract are experienced in the building industry; and in this case I am satisfied they are; then the reasons a respondent gives, may be significantly more abbreviated in a payment schedule, as long
36 Claimants reply at [15], RFFI1 Submission at [36]-[40] 37 [2003] NSWSC 1140 38 Claimants reply at [14], RFFI1 Submission at [30]-[35]
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as I am satisfied the claimant is aware of its meaning. In relation to a complex payment claim in Queensland; where I am not satisfied the claimant is aware of its meaning from the payment schedule; then if the respondent expands on that abbreviated reason in its adjudication response such that I am satisfied the claimant is now aware of its meaning and it is recognisably a reason for withholding payment of a claim in that adjudication response, that is a new reason for withholding payment.
244. The Respondent makes submissions that it gave a significant payment schedule. That is not in dispute. However, the size of it is not an indicator that each of the reasons for withholding were sufficiently particularised to alert the Claimant as to their meaning. In that regard I accept the basic tenet of the Claimant’s comments on the Respondents submission to RFFI1 at [7]-[8]39.
245. In Multiplex at [77]40 (my emphasis):
“77 A respondent to a payment claim cannot always content itself with cryptic or vague statements in its payment schedule as to its reasons for withholding payment on the assumption that the claimant will know what issue is sought to be raised. Sometimes the issue is so straightforward or has been so expansively agitated in prior correspondence that the briefest reference in the payment schedule will suffice to identify it clearly. More often than not, however, parties to a building dispute see the issues only from their own viewpoint: they may not be equally in possession of all of the facts and they may not equally appreciate the significance of what facts are known to them. This will be so especially where, for instance, the contract is for the construction of a dwelling house and the parties are the owner and a small builder. In such cases, the parties are liable to misunderstand the issues between them unless those issues emerge with sufficient clarity from the payment schedule read in conjunction with the payment claim.”
246. I am satisfied this part of Multiplex is authority for the position that I must be satisfied that the Claimant has been informed by the payment schedule of the reason for withholding payment which may be demonstrated by showing the matter is straightforward or has been expansively agitated in prior correspondence. Where I am not satisfied the Claimant has been informed by the payment schedule and where the matter is better particularised in an adjudication response so that I am satisfied the claimant is informed by that adjudication response, then that is a new reason given in the adjudication response.
247. In Multiplex a NSW decision at [78]41 (my emphasis):
“78 Section 14(3) of the Act, in requiring a respondent to “indicate” its reasons for withholding payment, does not require that a payment schedule give full particulars of those reasons. The use of the word “indicate” rather than “state”, “specify” or “set out”, conveys an impression that some want of precision and particularity is permissible as long as the essence of “the reason” for withholding payment is made known sufficiently to enable the claimant to make a decision whether or not to pursue the claim and to understand the nature of the case it will have to meet in an adjudication.”
248. I note that the Act in Queensland uses the word “state” rather than “indicate”. Whilst Multiplex says that use of the word ‘state’ might infer a greater standard of precision may be required than the use of the word ‘indicate’ as is used in the NSW legislation, I don’t think it is of any importance here as I am satisfied that the parties are experienced in the construction industry, used to giving and receiving payment claims and payment schedules and intimately involved in this contract, the project and the issues involved. That is not to say that individual reasons have not been expansively agitated between them, merely that I think a lesser level of particularity will adequately ‘state’ the Respondent’s position such that the Claimant is informed of what it means.
249. I am satisfied this part of Multiplex is authority for the position that I must be satisfied that the Claimant has been informed by the reason given sufficiently to be able to understand the nature of the case opposing it at adjudication. Where I am not satisfied the Claimant has been informed by the payment schedule and where the matter is better particularised in an adjudication response so that I am satisfied the claimant is informed by that adjudication response, then that is a new reason given in the adjudication response.
39 of the Claimants comments on the Respondents further submission to RFFI1 40 Claimants reply at [14], RFFI1 Submission at [30]-[35] 41 RFFI1 Submission at [31]
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250. The Respondent also deals with Multiplex at [79]-[80].42 I am satisfied those passages in Multiplex when applied to the particular circumstances in the relationship between Multiplex and Lahey demonstrate the application of the principles I have outlined above. In Appendix C, I shall apply those same principles to the circumstances of each of the reasons for withholding given in the payment schedule in determining whether an element of the claimant’s reply is in reply to a new reason given for the first time in the adjudication response or a reason already stated in the payment schedule.
251. The Respondent refers me to the decision of Daubney J. in Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd & Ors [2011] QSC 293 at [29]-[33] which the Respondent says; and I am satisfied; is authority for the contention that “a claimant or respondent under BCIPA is entitled to include in its adjudication submissions documents or matters within the scope of those matters duly raised in a valid payment claim or payment schedule. Amplification of those matters is not considered to be raising a new issue.”43
252. In that decision an adjudicators decision was set aside:
(a) Firstly, because that adjudicator had not considered some spreadsheets given in an adjudication response that had not been given with the payment schedule. It was conceded in that case that the spreadsheets were not a new reason which had not been included in the payment schedule, but they were explanatory of a reason already given and therefore were submissions made in support of the payment schedule. In not considering them the adjudicator did not consider them a submission duly made; and
(b) Secondly; because in excluding the spreadsheets, the adjudicator failed to give the respondent the opportunity to make submissions on whether indeed they should be excluded, or not and therefore denied the respondent natural justice.
253. The second of those caused me to pause and consider whether I would deny either party natural justice, should I consider, or not consider part of the claimant’s reply.
254. The Respondent says there are no new reasons. I have told it44 of the process I would follow in relation to paring down the claimant’s reply should it contain submissions not in reply to a new reason. I alerted it that it may make jurisdictional submissions at any time which it had done by that stage. I gave it the opportunity in RFFI1 to make a submission on what was a new reason and it took the opportunity to give me jurisdictional submissions on the specifics of the claimant’s reply; which were outside of what I had requested in RFFI145 and I have considered them. All of the Respondent’s submissions are being considered and I have made it aware that it could make further jurisdictional submissions on the contents of the claimant’s reply or any other matter, at any time. I am satisfied it has not been denied any measure of natural justice.
255. It is not the Respondent’s submissions on which I make a decision whether to consider, or not in Appendix C, but the Claimants. The Claimant has had the opportunity in its notification to me that it would give me a claimant’s reply, in the claimant’s reply and in its comments on the Respondent’s submission to RFFI1 to say why its submissions should be considered and what is the law with respect to new reasons. It has not been denied any measure of natural justice.
256. I note the Respondents reference to Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129 and I am satisfied it is authority for the contention that any new material in an application must be within the ambit or scope of the payment claim. I think that is consistent with Syntech.
257. The Respondent also refers me to the decision of Hammershlag J. in Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941 at [57]-[62], referred to in Syntech.
258. In that case an expert report was provided in the adjudication response to support a reason for withholding in the payment schedule which alleged some tiles were defective.
259. The adjudicator’s decision was set aside for three reasons:
42 RFFI1 Submission at [31] 43 RFFI1 Submission at [14] 44 In my letter of the 19th July 2016 45 In Schedule 1 of the Respondents further submission to RFFI1.
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(a) Because where there was nothing in the decision to indicate that the report was anything but directly in support of the reason given in the payment schedule; and
(b) There was nothing in the adjudicators decision which indicated that the adjudicator had made a determination to exclude the report on the basis that it was not duly made (properly made in Queensland) and therefore where no such determination had been made then the adjudicator denied the respondent in that matter, natural justice; and
(c) Where no determination had been made that the submission was not properly made then the adjudicator also failed to consider those things in Qld s26(2).
260. That decision is also consistent with Holmwood46.
261. It is open to me to determine whether a submission in the adjudication response is not in support of, or in the scope of, a reason already given in the payment schedule. It would not be a properly made submission if this were a standard claim47. However, in the circumstance where this is a complex claim, then I am satisfied that it is a new reason for withholding.
262. In this respect I sympathise with the Respondents RFFI1 submission at [20].
263. I repeat what I said in my letter of the 19th July 2016, “I will only misconduct myself should I consider something I should not have considered, or not consider something I should have considered.” In Appendix C I make a decision on the contents of the claimants reply.
264. A reason for withholding may be worded as simply as ‘I am withholding payment because of X’.
265. The extent of the new material and whether it is something which could have been contemplated at the time the application was made is what I shall consider in terms of the authorities including Multiplex48 above, in determining whether it is a new reason.
266. Where significant additional material which could not have been contemplated by the Claimant at the time it assessed the payment schedule and chose whether to make an application; or not; is included in the adjudication response, then I am satisfied that the reason becomes ‘I am withholding payment because of X and here is a report / calculation / discussion containing material which you could not have contemplated at the time of the payment schedule, such that you could assess whether; or not; to choose to make an application’. That is: I am satisfied it becomes or creates a new reason because it is beyond what could have been contemplated at the time of the application, one to which the Claimant may reply in a claimant’s reply under s24B. The rules in Multiplex and other authorities above identify whether that is in fact the case.
267. I agree with the Respondents RFFI1 submissions at [30]-[32], particularly [32]. I accept that the facts and circumstances in Multiplex are different to those before me, however the principles in Multiplex and rules derived from it have stood the test of time and I shall apply them.
268. I accept what the Respondent says at [35] in its submission to RFFI1, however there are two elements. Firstly, the Claimant has an onus to prove its entitlement and quantum; then should it do so, the Respondent has an evidentiary onus to support its proposed deductions.
269. The Claimant refers me49 to the decision of MacDougall J in Broad Construction Services (NSW) Pty Limited v Michael Vadasz [2008] NSWSC 1057 at [30], however that passage is a comment by the court on what the adjudicator had said on that matter and was not something the court decided, albeit that the adjudicators decision was upheld. To that extent I agree with the Respondent50 when it says the Claimant has not accurately summarised the decision in Broad.
270. I prefer the passage quoted by the Respondent of part of [36] of that decision together with the balance of [36] and [37] not directly quoited by it:
“36 Accordingly, there could be no denial of natural justice if it were correct to regard the Douglas Partners’ report of 24 April 2008 as something going beyond the reasons for non-payment advanced in the payment schedule. That, however, is a question of fact: the second aspect
46 [2005] NSWSC 1129 47 Or at all in NSW 48 [2003] NSWSC 1140 49 Claimant’s reply at [17] 50 Submission to RFFI1 at [55]
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of the issue which, as I have said, I do not propose to consider. It is sufficient to proceed on the assumption, that I have said I will make, that the report in question was relevant to the arguments advanced by Broad, so that if the adjudicator were required to consider it and failed to do so, there would have been a significant denial of natural justice.
37 The immediate obstacle to Broad’s position is the point established by the authorities to which I have referred: in particular, John Holland. That point is, of course, that it is a matter for the adjudicator to decide, in terms of s 22(2)(d), whether a submission has been “duly made” in support of a payment schedule. It is not a matter for the Court to determine on the basis of some objective test. Thus, unless that decision is to be regarded as incorrect or distinguishable, it governs the outcome of these proceedings.”
271. I am satisfied that Broad51 is authority for the contention that it will be a matter of whether the information provided in the adjudication response is within the ambit or scope of the payment schedule which will determine if the submission is duly made (properly made in Queensland) in terms of a standard payment claim.
272. I think the amendment to the Queensland legislation allowing ‘new reasons’ to be given in an adjudication response where the payment claim is a ‘complex’ payment claim, means that those ‘new reasons’ are properly made submissions. As s24B limits submissions in a claimant’s reply to those in reply to those new reasons, then it follows then that a submission in claimant’s reply which is not in reply to a new reason is not ‘properly made’ in support of the payment claim.
273. If the material provided in the adjudication response is not within the ambit or scope of an existing reason for withholding in a payment schedule (which did not contain that material), it changes the existing reason to a new reason for withholding which relies on that material.
274. Broad seems consistent with Holmwood52. The decision on whether it is within the ambit or scope of the payment schedule; the court says; is one for me to make. This is position supported by Basten JA. in John Holland Pty Limited v Roads and Traffic Authority of New South Wales and Ors [2007] NSWCA 19 at [71]53 and Syntech.54
275. I note in passing; but do not use in making my decision, as it was not put by, or put to the parties; that the decision in Broad was approved of and followed; in respect to whether the decision is one for the adjudicator to make; in the decision of Daubney J. in Richard Kirk Architect Pty Ltd v Australian Broadcasting Corporation & Ors [2012] QSC 177 at [40], of which I am aware, as I was the third respondent.
276. I disagree with the Claimant at [18] in its claimant’s reply. The Act provides for measures of natural justice which are to be given, they are not open, but limited by those measures. They are clear in the legislation, as are the authorities above. The right to provide a response to an expert report in a claimant’s reply is not an open one. It only arises under s.24B where that report is provided for the first time in an adjudication response and then only where it goes beyond the scope and ambit of the payment schedule, such that it becomes part of a new reason.
277. In that respect at Appendix C to this decision, I make decisions on whether the statutory declarations of Curtis, Smith, Swinnerton and Kirk-Lauritsen provided to me in the claimant’s reply; of which the Respondent complains at [82](c), [90](c) and [91]-96] of its submission to RFFI1; are properly made submissions. They will only be considered where I am satisfied that they are in support of a reply to material in the adjudication response which is beyond the scope or ambit of the payment schedule and thus become new reasons for withholding.
278. With regard to the Respondents submission to RFFI1 at [59]-[64], I don’t disagree.
279. With regard to the Respondents submission to RFFI1 at [65] I say:
(a) Multiplex55 may be distinguishable in fact, but the rules which have been drawn from it and used for quite some years, are quite clear.
51 [2008] NSWSC 1057 52 [2005] NSWSC 1129 53 Claimant’s reply at [21] (b) 54 Claimant’s Reply at 21] (d) 55 [2003] NSWSC 1140
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With regard to the length of the payment schedule, that is not the issue, it is the contents of it that matters, I make a decision at Appendix C on the specifics of the claimant’s reply. I will say that of the 67 pages of submissions, once the now uncontested variations are stripped away and the cover sheet and jurisdictional submission, the seven time-based cost submissions for v113-v118 are somewhat repetitive. Hence the size is not indicative of its content;
(b)-(f) I agree, but say each are decided on the facts;
(f) The decision in Trysams is one where the adjudicators decision was overturned because there was no evidence he had turned his mind to whether the report was or was not in support of the payment schedule. I am specifically asked to turn my mind to that question and do so in Appendix C.
280. With regard to the Respondents submission to RFFI1 at [67] I agree with (a) but say the principles remain, I make decisions on (b)-(d) in Appendix C and agree with (e).
281. I note the Respondent’s points in [69]-[75] of its RFFI1 submissions and say that I have made a decision on whether the claimant’s reply submissions are properly made and thus whether I have jurisdiction to consider them in Appendix C. I have done so in good faith, and on the basis of the submissions made to me, in the circumstance where the courts in Queensland have yet to consider the jurisdictional issues arising from the operation of s24B of the Act.
282. To date the authorities to which I have been directed have only dealt with what is now the process for standard claims only in Queensland; and all sized claims in NSW, which are essentially the equivalent of standard claims in Queensland.
283. They have dealt with whether a reason for withholding addressed in; or supporting information provided with; an adjudication response goes beyond the reasons for withholding payment given in a payment schedule such that they might offend s.24(4) of the Act or s.20(2B) of the NSW Act and be a submission ‘not properly made’.
284. Under that standard claim regime, a new reason was automatically excluded as a submission not properly made in support of the payment schedule and a supporting document could not be a properly made submission where it went beyond the scope or ambit of the payment schedule. The courts decided they are decisions for the adjudicator.
285. A completely new reason is relatively easy to identify, whether supporting information is provided which goes beyond the scope or ambit of the payment schedule such that it changes an existing reason into a new reason is a matter which can be settled on tests in the authorities. Whether a claimant’s reply submission will be accepted is tightly fixed by s24B. That submission must be in reply to a new reason. As soon as that submission goes beyond the scope or ambit of a reply to a new reason, then it becomes a submission not properly made.
286. With regard to [7]-[14] of the Claimants comments on the Respondents submission to RFFI1, all of those issues will be a matter of fact in assessing whether submissions in the claimant’s reply are in reply to a new reason.
287. With regard to the Claimants comments at [15]-[29] to the Respondents submission to RFFI1, I say that each of the matters raised, turns on whether the material given supports the payment schedule. The rules provided in the authorities discussed above and in Multiplex in particular; I think; give good guidance as to whether they are, or are not and I have applied them in Appendix C.
288. With regard to the Claimants comments at [30]-[31] to the Respondents submission to RFFI1, I disagree. Those authorities in the absence of any in Queensland on s24B are persuasive as to how the courts might treat s24B. That is not to say that I agree with the Respondent’s reading of those cases, particularly when one reads the whole case to get the context of the excerpts; as opposed to just reading the quoted excerpts in isolation, but I can follow it.
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Adjudication Response – Statutory Declarations
289. The Claimant complains56 that the statutory declarations of Jeanneret-Gris, Plascott, Kaggelis, Roberts, Gentile and Abdy are supplied in support of new reasons.
290. It is important to note here that the Claimant’s compliant is that the statutory declarations are in support of new reasons. The Claimant’s complaint is not that they contain new reasons.
291. Where I decide in Appendix C that an element of the claimant’s reply is in reply to a new reason in the adjudication response, or go beyond the scope and ambit of the payment schedule such that they become new reasons in the adjudication response, then I shall also accept submissions in the claimant’s reply on those elements of these statutory declarations that support the new reasons, are properly made submissions.
292. Where I have no complaint from the Claimant that the statutory declarations contain new reasons, but are only in support of new reasons, then I am satisfied that the balance of each statutory declaration are also properly made submissions in support of its existing reasons in the payment schedule and by definition in support of it.
293. In other words; because of how the Claimant has made its complaint; I shall consider the statutory declarations in full.
294. The situation would have been different if the Claimant had argued; successfully; that they contained new reasons as opposed to saying they were in support of new reasons.
Adjudication Response – Expert’s Reports
295. I am satisfied from the submissions that each of the experts used by the parties, namely Messrs Ash of TBH, Heazlewood of TPP, Payne of Robert Bird Group, Gellatly of MBM and McKerrell of McKerrell Architects are experts in their respective fields.
296. I accept submissions from the parties in those respective fields of expertise.
297. I accept submissions from the parties that the experts have been given instructions on what to report and I shall have regard for those instructions, where I am satisfied the reports are properly made submissions.
298. I note the Respondents assertions at section 16 of its adjudication response submissions that:
(a) The Claimants assertions are not sworn; and that
(b) The report of TPP is not an independent one.
299. With regard to the sworn evidence, there are elements of the claimant’s reply to which I may have regard as they are in reply to new reasons. They include sworn statements from Messrs. Curtis, Smith, Swinnerton and Kirk-Lauritsen which are in support of those elements of the claimant’s reply to which I may have regard.
300. The Claimant engaged TPP to provide delay reporting during the project, one assumes because it was concerned about delay on the project and that it might be held accountable for that delay, when it held a view; at least from the submissions I have; that it was the Respondent who was delaying the project.
301. There is no indication that any of TPP’s reporting was other than independent, the reports were issued to the Claimant who then attached them to its claims to the Respondent. There is no evidence that TPP did not merely start that independent task earlier than the Respondent engaged its experts, TBH. In that regard I refer to my decision below on whether the payment schedule adequately addressed; or addressed at all; the issue of critical path in relation to EOT’s after EOT16 and thus whether the Claimant could reply to it in its claimant’s reply. Mr Ash of TBH was not engaged at the time of the payment schedule.
302. I have not been supplied with any evidence that the experts; including TPP; have prepared their reports on any other basis than their honestly-held, professional opinions.
56 At [34]-[35] of the claimant’s reply
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303. In that same vein, in section 6 of its adjudication response, the Respondent deals with the functions of the Superintendent, Mr Jeanneret-Gris and says that he undertook the valuation task given to him under the contract seriously and that he performed it impartially and honestly. I have not been supplied with any evidence that he did not perform his task seriously, impartially and honestly. I note that under the contract he was under no obligation to apply himself to that task impartially although in some cases the opinion he forms may need to be reasonable57.
304. The Claimant complains that the expert reports of Ash, Payne and McKerrell are comprised “almost entirely of new reasons for withholding payment.”58
305. That the expert reports contain or are comprised of new reasons is a very different complaint to the complaint made by the Claimant that the statutory declarations are in support of new reasons made under the heading “Adjudication Response – Statutory Declarations” above.
306. Where the complaint is that they contain or are comprised of new reasons, then I need to address them in turn to determine if that is the case or not, and thus if the Claimant may address them in its claimant’s reply or not.
307. Whilst I accept a jurisdictional submission may be made that it is the case they contain, or are comprised of new reasons; that is not to say I agree with the submission. I may not consider all of them contain new reasons and therefore some of the Claimant’s submissions in its claimant’s reply may not be properly made submissions.
308. I have read the expert report of Timothy Ash of TBH (Delay Analysis/Programming) and say:
(a) The report is in reply to a Time Planning & Programming Pty Ltd (“TPP”) report of Nathan Heazlewood dated the 31st May 2016 which was prepared for, and included in, the adjudication application.
(b) The Heazlewood report of the 31st May 2016 says it is the last in a series of reports prepared by TPP on the delays on this project dated the 24th April59, 10th June and 15th June 2015 and the 18th April 2016 and provided by him to the Claimant.
(c) At [60] in the application, the Claimant says two reports were prepared by TPP for it, dated the 10th June 2015 and the 29th April 2016. I have been given copies of both of those reports.60
(d) The payment claim; and subsequently the payment schedule; refer to the TPP report dated 29th April 201661.
(e) I don’t know if the 18th April 2016 report exists or has been incorrectly labelled 18th instead of the 29th April 2016.
(f) I am satisfied that at the time the Respondent prepared its payment schedule, that it had a copy of the 29th April 2016 Heazlewood report.
(g) The Heazlewood report of the 29th April 2016 dealt with the critical path of the works and how individual delay events effect that critical path.
(h) In the payment schedule the only statement in each of the 7 time related claims relating to the critical path is “The Principal submits that the Contractor was not critically delayed by a delay giving rise to an entitlement to an EOT under GC35.5(a) or (b)”. It does not otherwise deal with what the delay is, or what the effect on the critical path is, it merely makes the statement with no supporting information. Yet clause 35.5(d)(i) of the contract expressly provides that an EOT claim can only be successful where the Superintendent holds a reasonable opinion that the delay event effects the critical path.
(i) I accept that there had been correspondence before the payment claim in relation to the delays and that the Superintendents assessments of previous delay claims (up to EOT 16) had addressed individual items on the program and whether movement in them affected
57 For example, in clause 35.5 paragraph 3 58 At [27] in the claimant’s reply 59 At Tab AC-67 in folder 3 of 4 of the claimant’s reply 60 At Vol B, Tabs B1 & B2 of the application 61 At Vol B, Tab B2 of the application
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the critical path, however the payment schedule should at least refer to that correspondence or information in relation to the critical path. It does not do so at all and there has been no assessment prior to the time of the payment schedule, or in the payment schedule in relation to critical path for EOT70 onwards. The reason given in the payment schedule is too brief. It must at least allude to any previous contest on the issue. In the case or EOT up to EOT16 that existed and there is no reference and in relation to EOT70 onwards, there has been no contest and therefore there is nothing to which to refer back.
(j) To that end, I note the Claimant’s complaint at [26] of its claimant’s reply.
(k) The TPP report in the application and dated the 31st May 2016, brings together the previous work of Heazlewood on the critical path and makes further assessment of it.
(l) The TBH report of Ash is a reply; made for the first time in the adjudication response; to the work already done by Heazlewood on the critical path, work which was in the hands of the Respondent at the time of its payment schedule.
(m) Thus the criticisms of the TPP report contained in that TBH report and which are relied upon by the Respondent, are new reasons for withholding contained in the adjudication response. In effect the Respondent is saying for the first time in its response, we are withholding payment because our expert says the TPP report’s critical path analysis is wrong, therefore there is no critical delay and this is why.
(n) Therefore, I am satisfied that any submission in the claimant’s reply which replies to the TBH report supplied by the Respondent in its adjudication response, is a properly made submission. The TPP report by Mr Heazlewood is such a document.
(o) I note it is not altogether unsurprising that a Respondent faced with a claim based upon the premise that critical activities had been delayed, might seek to refer to the delays as concurrent and entirely avoid using the word critical. However, the claims are made on the basis they are critical and haven’t been replied to in that manner until the Ash report.
309. I have read the expert report of Thomas McKerrell of McKerrell Architects (Architecture) and say:
(a) The payment schedule makes no mention at all that the lack of architectural impact from the façade amendments, means that there is no delay.
(b) I am satisfied that as McKerrell’s report is not in support of the payment schedule; and therefore becomes a new reason for withholding given for the first time in the adjudication response; then it is something to which the Claimant may reply in its claimant’s reply.
(c) Therefore, I am satisfied that any submission in the claimant’s reply which replies to the McKerrell report, is a properly made submission and I shall have regard for it.
310. I have read the expert report of Stephen Payne of Robert Bird Group Pty Ltd (Engineering) and say:
(a) Whilst it is described as a 16-page report by the Claimant, it is in substance a two paragraph report at 4.2.
(b) The payment schedule makes no mention at all that the lack of structural impact from the façade amendments, means that there is no delay.
(c) I am satisfied that as Payne’s report is not in support of the payment schedule; and therefore becomes a new reason for withholding given for the first time in the adjudication response; then it is something to which the Claimant may reply in its claimant’s reply.
(d) Therefore, I am satisfied that any submission in the claimant’s reply which replies to the Payne report, is a properly made submission and I shall have regard for it.
311. Therefore, I disagree with the Respondent at [78]-[82] of its submission to RFFI1.
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The contents of the claimant’s reply
312. From the submissions made by the parties on the available authorities, the questions I shall ask as to whether submissions in the claimant’s reply are properly made submissions; or not; are:
Q Question Arising Test
Basic Tests
1 Is the submission a jurisdictional submission?
If Yes, then it may be made.
2 Is there a reason given in the Payment Schedule on this matter at all?
If No, then it is a new reason and the Claimant may reply
3 Is the submission in reply to the Adjudication Response?
If No, then it is not a properly made submission
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
4 at [67]
Was the issue in dispute defined in the payment schedule?
If No, then any further information constitutes a new reason and the Claimant may reply
5 at [68]-[70]
Is the reason for withholding stated (Qld) with sufficient particularity in the payment schedule to enable the Claimant to understand in broad outline what is the issue?
If No, then the information constitutes a new reason62 and the Claimant may reply
6 at [76]
Are the parties experienced in the construction industry and used to giving and receiving payment claims and payment schedules?
If No, then a greater level of particularity is required and the Claimant may reply
7 at [76]
Are the parties familiar with the contract and history of the project and the broad issues which have produced the dispute?
If No, then a greater level of particularity is required and the Claimant may reply
8 at [76]
Am I satisfied the abbreviated reason given in the payment schedule is understood by the Claimant and does it sufficiently apprise the Claimant as to its meaning?
If No, then the information constitutes a new reason and the Claimant may reply
9 at [77]
Has the issue been expansively agitated between the parties such that I am satisfied the Claimant understands its meaning?
If No, then the information constitutes a new reason and the Claimant may reply
10 at [78]
Am I satisfied the Claimant was sufficiently informed as to the case opposing it in adjudication?
If No, then the information constitutes a new reason and the Claimant may reply
Tests from Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129
62 A position supported by Lanskey v Noxequin [2005] NSWSC 963 at [37]
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11 at [129]
Is the additional material in the adjudication response within the scope or ambit, and in support of the payment schedule?
If No, then the information constitutes a new reason63 and the Claimant may reply
313. I am satisfied that the answer to both questions 6 & 7 are yes. I have not addressed them further in Appendix C.
314. Some of my assessment in Appendix C is based upon what I have said above under the sub-heading, “Adjudication Response –Expert’s Reports”.
315. In my assessment in Appendix C, I have found that there are submissions in the claimant’s reply to which I shall have no regard and where supporting information is provided to support one of those submissions, I shall have no regard for that supporting information either.
316. The supporting information is one element which deserves further explanation to Appendix C. The Respondent complains in its reply to my RFFI1 that it is being ambushed by the material in the claimant’s reply and is denied procedural fairness in being unable to reply to; inter alia; the statements of Curtis, Smith, Swinnerton and Kirk-Lauritsen given in that claimant’s reply.
317. I disagree. The Act provides for a Claimant faced with new reasons in an adjudication response to reply to them in a claimant’s reply.
318. I have made a decision above on the Experts Reports and I am only having regard for the other supporting information to the extent it is referred to in support of a Claimant’s submission in reply to what I have identified as a new reason in the adjudication response. To the extent that the statements are part of the reply to the new reason, I will accept them.
319. I have used the parties’ submissions; including the Respondent’s; to determine what is the law as to how I should do that and I have used the Respondent’s submissions in its Schedule 1 to its further submission to RFFI1 in relation to specific elements of the claimant’s reply.
320. Therefore in essence the Respondent’s compliant is that the right to a claimant’s reply in the Act is unfair.
321. I can’t assist it in that regard.
322. There is no right of reply to the claimant’s reply. I have pared the claimant’s reply down to only being in reply to new reasons given for the first time in the Adjudication Response and nothing else, the Act doesn’t allow for a further submission in that circumstance.
323. Those are the measures of natural justice the Act requires to be given.
324. If I had not so pared down the claimant’s reply and was of a mind to use that material, then I would have requested a further submission on it. But I have pared down the claimant’s reply in that manner and therefore I am only having regard to submissions properly made in it.
325. I am satisfied the Respondent has not been denied any measure of procedural fairness.
Jurisdictional Issue - Claims made after Reference Date
326. The Respondent says the claims for Variations 112 to Variation 118 were all made after the reference date and that the Act requires that I value the payment claim as at the reference date.
63 A position in my view supported by John Holland Pty Limited v Cardno MBK (NSW) Pty Limited & Ors [2004] NSWSC 258; Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 at [56]-[60]; The Minister for Commerce (formerly Public Works & Services) v. Contrax Plumbing (NSW) Pty. Ltd. & Ors. [2005] NSWCA 142 at [24]-[29 & [33]-37]; Veolia Water Solutions v Kruger Engineering [2007] NSWSC 46; Coordinated Construction Co. Pty. Ltd. v. Climatech (Canberra) Pty. Ltd. & Ors. [2005] NSWCA 22 at [24]; Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd & Ors [2011] QSC 293 at [29]-[33]; Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941 at [57]-[62]; Broad Construction Services (NSW) Pty Limited v Michael Vadasz [2008] NSWSC 1057 at [30] & [36]; John Holland Pty Limited v Roads and Traffic Authority of New South Wales and Ors [2007] NSWCA 19 at [71]; and Cylde Bergmann v Valley Power [2011] NSWSC 1039 at [13]
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327. Firstly, I have already decided that the reference date for this claim put forward by the Claimant; the 15th April 2015; is one of 12 available reference dates between the 15th April 2016 and the 3rd May 201664.
328. I have also said above that there is no requirement for a claimant to state a reference date on a payment claim or in its application. One must merely exist in order for it to be entitled to one under s12 of the Act. In that regard I accept the Respondents reference to Lean Fields Developments Pty Ltd v E & I Global Solutions (Aust) Pty Ltd & Anor [2014] QSC 293 at [48].65
329. The Act does not say that where multiple reference dates are available to a claimant, that it must use the first to have occurred, or the last to have arisen, or any of those in between, one must merely exist.
330. Therefore; even if what I say below is incorrect and the entitlement to a claimed amount must have arisen on or before the reference date of the claim in which that claimed amount appears; as I am satisfied that the date on which the claim was deemed to have been made, the 3rd May 2016 is an available reference date, then the claims are not made before the latest reference date available to the Claimant.
331. In its response the Respondent relies on the decision in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2012] QSC 346.66
332. The passages quoted in that decision refer to uncontested submissions on claims where the entitlement arose after the reference date, submissions made by BM Alliance Coal Operations (“BMA”).
333. The adjudicators decision was overturned firstly because he determined the matter on a basis which had not been put by either party. By not offering BMA the opportunity to make a submission on the basis upon which he made his decision, he denied BMA natural justice. At [49] Justice Applegarth said:
“The adjudicator did not have the claim put to him on that basis, and he did not determine it on that basis.”
And at [52]:
“In carrying out the functions entrusted to him or her, an adjudicator must consider the submissions that have been made” …
“if the adjudicator was minded to assess that part of the claim on a different basis, natural justice would have required him to accord BMA the opportunity to respond”
334. BMA’s case on this point was not based upon that an entitlement to claim had not arisen before the reference date.
335. Secondly it was overturned because the adjudicator did not make his assessment of either entitlement or quantum with reference to the contract and therefore exceeded his jurisdiction. At [56]:
“By including sums which, as at the relevant date, BGC had no entitlement to be paid, and for which BGC had not shown an entitlement to be paid, the adjudicator ignored a limit on his jurisdiction and exceeded his jurisdiction.” …
“In failing to identify and find a legal source for that entitlement the adjudicator made a jurisdictional error. The legislation requires the source of an entitlement to be paid to be found. In failing to consider and find the source of the entitlement, the adjudicator failed to take into account a matter he was required to take into account and thereby fell into jurisdictional error.”
336. It was not overturned because the entitlement to the amounts claimed did not arise until after the reference date; that issue was not in contest; but that the adjudicator had not identified what contractual basis allowed for them to be paid.
64 The date the claim is deemed to have been made under the contract. 65 In the response at page 15 66 at [ 37]-[39], [42]-[46], 51] and [56]-[57]
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337. The Respondent at page 15 of the adjudication response submits that matter on appeal supports its position67; that is not the case. On appeal the parties did not contest that the entitlement to be paid had not arisen before the reference date.
338. In the decision in the first instance, the first underlined passage in [37] starts “it is said to be”. I note it is not ‘said to be’ by the court, but by BMA in its submissions.
339. I cannot find in any part of that decision where the court agrees that the law is that an entitlement under the contract must have arisen before, or by a reference date, for a claim to be made for that entitlement in a payment claim made ‘from’ that reference date.
340. I cannot find a location where the court or BMA in its submissions; as the plaintiff in that case; refers to an authority which might support the contention that an entitlement must have arisen under the contract before a reference date for a claim for that entitlement to be included in a payment claim made ‘from’ that reference date.
341. In both the decision in the first instance which says (my emphasis):
“That he Act confers a right to a progress payment based only on contractual entitlements which arise on or before the reference date” and “BGC does not contest the” …” proposition”; and the decision on appeal which says (my emphasis):
“The primary judge found that the adjudicator had made a jurisdictional error in allowing BGC‘s claim for termination costs in the sum of $4,345,377.42. The Act gave BGC a right to progress payments based only on contractual entitlements which accrued on or before the reference date. It was found that the adjudicator had erred because an entitlement to payment of the sums claimed could not have arisen on or before 1 January 2012, the relevant reference date. On appeal, BGC did not contest these findings.”
… the courts place a rider on each decision. The issue the Respondent in the matter before me relies upon, was not in contest. The rider leads me to believe that the decisions would have or may have been different, had the issue of whether a contractual entitlement had to have arisen before the reference date been contested, in either.
342. I say that because the Respondent’s statement on page 15 of the response that “The law in Queensland is clearly that a claimant must establish an entitlement to payment has accrued on or before the reference date” does not ring true in relation to either of the BMA references containing the rider mentioned above, or the words of sections 12 and 14 of the Act.
343. Sections 12 and 14 include the word “undertaken to be carried out” and ‘undertaken to be supplied”. Hence the Act contemplates that supply which may not have yet started, or work which may not have been undertaken as yet, might be payable if the contract provides that an entitlement has arisen. Section 12 says when an entitlement to a progress payment arises; “from each reference date”; it does not say what must be contained in the progress payment, that is left to the operation of the contract.
344. Indeed, in BMA at the first instance, the Respondent refers me to para [56] wherein Appelgarth J. refers to part of the decision of Brereton J. in Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSW 320 at [43]. The whole of [43] states (my emphasis):
“The Act does not create a right to remuneration for construction work – that right is created by the construction contract. What the Act does is to create and regulate a right to obtain a progress payment. It is inherent in the concept of a progress payment that it be a payment on account of the amount ultimately due. The contract provides the starting point for the determination of rights under the Act [see, eg, s 9(b), s 10(1)(a), s 11(1)(a), s 22 (2)(b)]. The purpose of s 34 is to prohibit the exclusion or modification of the right to receive the contractual remuneration by progress payments; it does not prohibit the exclusion or modification of the contractual remuneration simpliciter. An agreement between the parties to a construction contract that some “extras” or “variations” will not entitle the builder to additional remuneration, or that a specified sum will be accepted for such works, forms part of the contractual regime according to which their rights under the Act as well as at law are regulated, and is not inconsistent with the rights given by the Act to claim a progress payment.”
67 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors [2013] QCA 394 at [49]
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345. This reference; given to me in part by the Respondent; is important:
(a) It says that the parties may not limit; by virtue of s.34 of the NSW Act, to which s.99 of the Act is identical; the right to a progress payment.
(b) Once the right to when a progress claim might be made has arisen, then contents of the claim is an entirely separate matter;
(c) It says that the parties may make an agreement “which forms part of the contractual regime to which their rights under the Act as well as the law are regulated” to limit what is in that progress payment. Ergo, where the contention is that an entitlement must have accrued before the reference date, that contention is on the basis that under the Act the parties are free to limit that the entitlement must have arisen before the reference date, under their construction contract, before it may be part of a progress payment. It is not the Act which limits the entitlement, but the terms of the contract.
346. I was initially concerned with the words “The Act gave BGC a right to progress payments based only on contractual entitlements which accrued on or before the reference date” at [49]in the Appeal decision, however I am comforted that the rider to which I refer above is located at the bottom of that paragraph.
347. I am certain that the rider Applegarth J. and subsequently Muir JA; with whom Holmes JA and A Lyons JA agreed; placed on their respective decisions; that BCG did not contest the ‘entitlement before reference date’ issue; was placed in those decisions on the basis that it was an issue upon which the parties could make an agreement. BCG could have contested it and chose not to.
348. I therefore distinguish the current situation, where the matter is contested, from that in the BMA authorities.
349. I am satisfied from the Respondent’s own submissions that there is no requirement under the law in Queensland for a claimed entitlement to have arisen before the reference date ‘from’ which a claim arises, such that the claimed quantum might be included in a payment claim ‘from’ that reference date. The corollary of that position is that, if there is no contractual agreement to so limit the contents of a payment claim, then there is no limit on the contents. There was an assumption of such an agreement in the BMA cases where BCG did not contest the issue.
350. The Respondent says I should disallow the claims for Variation 112 and Variation 115 to Variation 118 inclusive because they were made after the reference date, on the basis that is the law.
351. I am satisfied it is not the law, but something the parties may have agreed upon.
352. On the Respondent’s own submissions, I am satisfied that it must show a contractual requirement that the Claimant should have issued them before the reference date.
353. I shall have regard to those things in s26(2) of the Act to see if such an agreement has been made in any specific case.
354. I note the statement made by the Respondent at 4.5 in its response that it does not press the jurisdictional submission in relation to EOT 10 (Variation 113) and EOT15 (Variation 114).
355. For reasons already given, I don’t think the date of individual claims is relevant to the Respondent’s ‘Jurisdictional Submission’. If the amendments were made prior to the date of a claim which has a live reference date, then the claims shall be assessed in terms of the contract.
356. In any event I don’t think a jurisdictional submission can be quarantined to part of a claim. I either have jurisdiction or I don’t.
357. In this case I am satisfied this isn’t a matter of jurisdiction but one of the terms of the contract and shall be decided on the terms of the contract.
Matters for Determination
358. The amounts for determination are contested by the parties are shown in Appendix B to this decision.
359. Each amount referred to below is exclusive of GST unless noted otherwise.
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360. The elements of the payment claim may be put into three categories identified in the summary in Appendix B to this decision as original subcontract works and provisional sums, variations and backcharges - setoff. – deductions.
361. I think the order in which the Claimant has dealt with the issues at [3] in its adjudication application submissions is relevant to the order in which I must decide them. I will adopt that same progression through them.
362. The basis upon which this payment claim was made and in which the payment schedule replies is that the payment due to the contractor is one that calculated by taking the value of works completed to date, 68 and deducting any amounts which may be withheld under the contract and then deducting any payments made to that date for that work as varied.
363. There are elements of that equation which are agreed, hence I have dealt with those first and taken them to collection and then dealt with those in dispute.
364. I note that the amount paid to date is not in contest in the application albeit that there is a very small difference between the amount in the payment claim and that in the payments schedule. Hence I have adopted the payment schedule amount.
365. There are some very minor differences in amounts for some variations between the payment claim and the payment schedule of between one cent and $1. I have not addressed them, as the scheduled amount for those items is not contested.
366. A large number of the variations are uncontested, some of those which were contested in the payment schedule have been conceded by the Claimant in its adjudication application either in full or in part.
367. Of those variations which remain in contest in this adjudication, three relate to additional works and the balance are time related acceleration and delay cost claims. The Claimant concedes that if it is successful in variations 113 for EOT 10 and 114 for EOT 15 then variation 16 is valued at Nil.
Original Subcontract Works & Provisional Sums
368. The parties agree on the value of this element of the work.
TO COLLECTION $21,566,315.00
Uncontested Variations
369. Variations 1 to 15 are uncontested. TO COLLECTION $ 16,950.19
370. Variations 17 to 44 are uncontested. TO COLLECTION $ 506,043.52
371. Variation 46 is uncontested. TO COLLECTION $ 4,457.35
372. Variation 48 to 95 are uncontested. TO COLLECTION $ 713,886.43
373. Variations 97 to 102 are uncontested. TO COLLECTION $ 14,868.95
374. Variations 110 and 111 are uncontested. TO COLLECTION -$ 55,000.00
375. The Claimant has conceded variations 96, 103, 104, 105, 106, 107, 108 and 109 at [617] of its application submissions. TO COLLECTION $ 0.00
The Date for Practical Completion
376. I have already dealt with the issue of the Date for Practical Completion (“Date for PC”) in the schedule bound into the contract document in the Annexure Part E and the Date for PC noted in the Annexure Part A, under the heading “The Construction Contract and the Application of the Act”.
377. The date in the Annexure Part A prevails under the order of precedence in the Formal Instrument of Agreement. In that regard I accept the Respondent makes a submission69 that the wrong program was bound into Annexure Part E. The program bound into the Annexure Part E is
68 Including both the originally contracted works and any variations to it. 69 At the bottom of page 28 of the adjudication response and in the statutory declaration of Mr. Jeanneret-Gris
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consistent with the date crossed out, replaced with the 2nd November 2015 and initialled by the parties at item 26 of the Annexure Part A. I deal with that issue under the heading “The role of the construction program under the contract” below.
378. At the date the contract was executed the Date for PC was the 2nd November 2015.
379. The Claimant contends that it has valid extension of time claims under the contract such that the revised Date for PC is the 16th March 2016.
380. The Respondent says the Date for PC has not changed from that in the executed contract. It says that whilst EOT’s have been granted, those EOT’s have not exceeded the amount of float allowed in the contract, beyond which an amendment to the Date for PC might be made.
381. It is uncontroversial that the contract provides for the Date for PC to be amended subject to clause 35.10 inserted in the Annexure Part B which says:
“35.1 0 Float
The Parties agree that the first 10 Business Days, in the aggregate, of extensions of time granted under the Contract will not:
(a) result in any extension to the Date for Practical Completion; or
(b) result in any payment for delay or disruption under clause 36 of this Contract."
382. The Claimant has previously sought; and been granted; EOT’s under the contract in EOT claims 1 to 8 amounting to 10 business days. Therefore, the entire amount of float allowed under clause 35.10 has been exhausted and any further EOT I may decide should have been allowed70, will affect the Date for PC for the purpose of my valuation.
383. The Claimant has made further EOT claims and those which it presses here are EOT9, 10, 14, 15, 16, 70, 81, 82, 83, 91, 103 and 10471, which it says72 are relevant to this application and when applied in the manner it proposes, revise the Date for PC to its proposed date of the 16th March 2016.
Counting of days
384. A Business Day is defined in the contract as having:
“the meaning given in the Acts Interpretations Act 1954 (Qid) but excludes 27-31 December inclusive in each calendar year”.
385. The definition of Business Day in the Acts Interpretations Act 1954 (Qid) is found at Schedule 1 therein:
“business day means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done”
386. A Business Day as defined in Schedule 2 of the Act is:
“business day does not include—
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; or
(c) any day occurring within any of the following periods—
(i) 22 to 24 December;
(ii) 27 to 31 December;
70 As part of the valuation exercise only 71 Adjudication application at [58] 72 Application at [58]
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(iii) 2 to 10 January.”
387. Therefore, a business day which is operable for the counting of days under the contract includes the 22nd to 24th December and 2nd to 10th January in any year, but are not business days for counting of days under the Act.
The role of the construction program under the contract
388. The parties fundamentally disagree on the role of the construction program under the contract.
389. Clause 33 of the contract deals with the progress and programming of the works.
390. Clause 33.2 of the standard AS2124 contract was replaced in its entirety by Annexure Part B at Special Condition 1.49 with the following, I have added paragraph numbers in bold; e.g. 1); for ease of identification:
“33.2 Construction Program
1) For the purposes of Clause 33 a 'Construction Program' is a statement in writing showing the dates by which, or the times within which, the various stages or parts of the work under the Contract are to be executed.
2) The Construction Program may be used by the Contractor as an aid in managing the Works and by the Superintendent for the purposes of certifying a claim for an extension of time under Clause 35.5. The Construction Program does not form part of the Contract and will not affect the rights of the parties under Clause 33.
3) The Contractor must furnish to the Superintendent a Construction Program within 10 Business Days after the date for possession of the Site as set out in Annexure Part A.
4) Unless otherwise directed by the Superintendent the Construction Program must show:
(a) the sequence of work;
(b) critical paths of activities related to the work;
(c) allowances for holidays;
(d) activity inter-relationships;
(e) external dependencies including provision of access, document approvals and work by others;
(f) indicate the program dates for commencement and completion of each trade in each major section of the Works; and
(g) show the Date for Practical Completion,
and must otherwise comply with this Contract and any direction of the Superintendent.
5) The Contractor must revise the Construction Program as required by the progress of the work. The Contractor must submit revisions with each progress claim which identify changes since the previous version and show the estimated percentage of completion for each item of work.
6) The Superintendent may at any time, direct the Contractor to furnish to the Superintendent an amended Construction Program within the time and in the form directed by the Superintendent.
7) The Contractor must not, without reasonable cause, depart from a Construction Program.
8) The furnishing of a Construction program or of a further Construction Program will not relieve the Contractor of any obligations under the Contract including the obligation to not, without reasonable cause, depart from an earlier Construction Program.
9) The Superintendent may make more than one direction for the provision of a Construction Program pursuant to this Clause 33.2. The Contractor must comply with each such direction in accordance with the Contract.
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10) The Contractor must ensure that all of its subcontractors and suppliers are fully aware of the Construction Program.
11) In addition to the Construction Programs which the Contractor must provide under this Clause, the Contractor must provide fortnightly programs to the Superintendent showing the various stages or parts of the work under the Contract to be executed or completed in the following fortnight. These fortnightly programs must be updated weekly and provided to the Superintendent each week."
391. The Claimant has made submissions at [67]-[70] of its adjudication application on the role the program has under the contract. The Respondent addresses these things at 6.5 of its adjudication response.
392. In short, I agree with the Claimants submissions on how the program is used in the contract, I think the Respondent does misconstrue the contract, however the whilst I believe the Claimant construes it correctly, it then proceeds to apply it in a haphazard manner in the EOT claims.
393. I don’t agree with the Claimant’s complaints over the Respondent allegedly inventing categories of programs. I think the Respondent is only giving them names to identify its position on the contract, one with which I disagree. There can also be different types of programs around a construction site which look at various ways to deal with issues including suspension, disruption or delay but there will only ever be one contract program. That is the program referred to in the contract as ‘the program’.
394. Whilst I agree with the Respondent where it says clause 33.2 is a facilitative provision73, I disagree where it says the overriding obligation of the parties is to perform the works in accordance with its Baseline Contract Construction Program or the Revised Contract Construction Program.
395. I agree in particular with the Claimant’s comment74 that the program is “a dynamic and evolving document” which will change throughout the course of the project. The construction program initially bound into the contract; or if there had been none, that given to the Respondent by the Claimant under clause 33.2 para 3); will change over time as the work progresses regardless of whether the Respondent has issued any EOT’s.
396. That there would be a construction program which is current at any given point in time is specifically contemplated by clause 35.5 para 9) which I discuss below under the heading “The method of revising the Date for PC under the contract”. That paragraph is in a clause significantly amended by the Annexure Part B Special Conditions. The words “current construction program” were put in that clause either by the Respondent in developing the contract, or by the parties in negotiating it. It is not a concept foreign to the contract and is consistent with the Claimant’s submission.
397. The Claimants expert Mr Heazlewood uses this basis for his assessments in his report of the 31st May 2016 in his assessment of the Superintendent’s assessment s of EOT’s and I agree with him75 in that regard.
398. There is an interplay between para 9) and para10) of clause 35.5 which contemplates that where the Superintendent is of the view (para 9)) that the Contractor has not maintained progress with the construction program (as defined in clause 33) it may still otherwise have a right to an EOT (para 10)). If I were to accept the Respondent’s position76 that would not be the case.
Indeed, if I were to accept the Respondent’s position77, then if the Claimant were delayed by the Respondent after any delay for which the Claimant were responsible; even if that delay was complete; that is, that there was no concurrency; the Claimant would be unable to claim a delay because; as the Respondent says in its previous assessments; the previous critical activity is not complete.
It wouldn’t matter if there was or was not any concurrency.
73 Second last and last paragraph of 6.5 on page 33 of the response. 74 Application at [68] 75 at [193]-[194] 76 At 6.5 in the adjudication response. 77 Adjudication response at 9.4
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As soon as there was but one prior culpable delay which albeit complete and which had not been recouped by acceleration, then under the Respondent’s construction of the contract, it would be able to delay the Claimant as much as it liked because on the Baseline Program the tasks on the critical path would always remain late, but were not shown to be so on the Baseline Program.
The purpose of the construction program is to manage the works. That would be impossible if the dates on it bore no resemblance to the actual progress.
None of that alters the Claimant’s responsibility to meet the Date for PC as amended by valid EOT’s.
I am satisfied that the construction program in this contract is one that moves with the works. Delays are measured from when the Claimant proposes in that program to undertake an item of work.
That the Claimant might miss the Date for PC and incur Liquidated Damages is an entirely separate matter in this contract.
I prefer the Claimant’s construction of this provision.
399. Indeed, the requirement to show the Date for PC on the construction program in para 4) is one that will indicate whether the contractor will meet the Date for PC or not78, and if not, then it alerts the Superintendent to that circumstance, such that a direction to accelerate or other measures might be contemplated including perhaps, those in clause 44.
400. In this case the parties are in dispute over the Date for PC and hence the Date for PC shown on the Claimant’s programs could well be different to the original Date for PC plus any certified EOT’s.
401. In particular I am satisfied that clause 33.2 of the contract gives neither the Superintendent or the Respondent a right of approval or veto over a construction program and nor, I note; does clause 35.5 para 9), it only gives a right to order acceleration. Clause 8.4 of the contract refers to what happens should the Superintendent have a right of approval, but does not invest that right of approval in the Superintendent. Equally it gives the Superintendent the right to notify the Claimant if the documents (programs) are not suitable79, but only where the contract has already provided that the Claimant must obtain the Superintendent’s direction that they are suitable80. I have been drawn to no such clause in the contract which says the Claimant must seek such a direction.
402. Yes, under clause 33.1 the Respondent has a right to direct the Claimant in what order to perform the work.
403. Yes, the Respondent has a right to instruct the Claimant to suspend the works under clause 34.
404. However, neither is a right of veto or approval over the construction program and in both cases there is potentially a time and cost impact to the Respondent for varying the manner, or time within which the Claimant seeks to undertake its works.
405. If no such direction is given, then the Claimant shall proceed to undertake the works on the original construction program, as amended by it from time to time for reasonable cause. That is entirely consistent with the Claimant’s position of which I have approved above.
406. In that regard I agree with the Claimants submissions as to the treatment of delay as being prospective. A delay is one which under clause 35.5 para 3) where the Superintendent holds a view that the contractor is, or will be delayed, not one solely where it has been delayed and an EOT already certified.81
407. Clause 33.2 does say the Superintendent must be given a copy of any program and that the Superintendent may request one, it does not say the Superintendent or the Respondent must or may approve any program. I note that a direction to provide such a program was given on the 15th October 2015.82
78 That is that there is a delta between the prospective Date of PC and the Date for PC as amended. 79 At clause 8.4(d) 80 At Clause 8.4(c) 81 I deal with my right to stand in the shoes of the Superintendent later in this decision. 82 At Tab B3 of the Application
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408. The Respondent says the program bound into the executed contract document was bound in there in error.
409. The program is bound into the contract at Annexure Part E and labelled as “construction program (version 1) dated 1 August 2014 as attached”.
410. Mr Jeanneret-Gris says there was an agreement that the construction program provided by Grindley to Tricare on or about the 6th October 2014 should replace the tender program bound into the executed contract.
411. At Tab B11 of the application is a copy of the Claimant’s program dated 25th September 2014. It does not have a revision number but would sensibly seem to be Revision 2. This program is consistent with Mr Jeanneret-Gris’ statement. At [104] of the application, the Claimant seems to concede it is to be a contract document. It shows a Date for PC of the 2nd November 2015 consistent with the Date for PC in the Annexure Part A.
412. It would seem that para 3) was not complied with, as the 25th September 2014 is later than 10 business days after the 5th September 2014 execution date, however there is no contract term I have been drawn to which deals with an outcome for a failure to comply with that 10 business days and therefore damages could be the only outcome; and neither entitlement to, nor calculation of quantum is mentioned in the contract. I do not have jurisdiction over damages in that event.
413. I don’t think it matters whether Rev 1 was bound into the document in error, or not, or if there was any agreement to replace it with Rev 2, because the Claimant issued a new program Rev 3 again consistent with the Date for PC stated in the Annexure Part A of the 2nd November 2015 and then continued to issue programs thereafter. Importantly it is the Date for PC which is a contract requirement and not any individual line item contained in those programs. I have no submission that the alteration from Rev 1 to Rev 2 was not revised for reasonable cause83.
414. Rev 1 of the program is bound into the contract and the program Rev 3 is found at Tab B12 of the application. It is used by the Respondent for the assessment of EOT 9-16, therefore clearly it had been issued to the Respondent. The Program Rev 3 shows that same Date for PC of the 2nd November 2015. Where it does so one can assume that at least with regard to Rev 3, the Respondent agrees any changes have been made for reasonable cause under clause 33.2 para 7).
415. That the Claimant might issue Rev 3 and programs thereafter, is contemplated by clause 33.2 para 5).
416. I repeat, I agree with the Claimant’s submissions on how the program is used in the contract, I think the Respondent fundamentally misconstrues the contract.
417. The Respondent further refers me to the definition of ‘Additional Documents” in clause 2 of the contract as amended which says:
“Additional Documents' means the additional documents supplied by the Principal to the Contractor relating to the Site and the Works which must be complied with by the Contractor and are listed at Annexure Part E”.
418. One thing strikes me as immediately apparent with respect to that definition. There are two types of documents which might be listed at the Annexure Part E. Firstly Additional Documents, which have passed form the Principal to the Contractor and then secondly any other documents which have passed from the Contractor to the Principal. The contract at clause 8 specifically identifies that they are treated differently and Annexure E is consistent with that position.
419. There are no documents listed at Annexure Part E which were “supplied by the Principal to the Contractor”.
420. The “construction program (version 1) dated 1 August 2014 as attached” was; and indeed the later programs were and are to be supplied under the contract at clause 33.2; by the Contractor to the Principal84 and therefore fail the definition to be an Additional Document.
421. Where the programs given by the Contractor to the Principal fail the definition, I don’t think there is any obligation for it to be “complied with”.
83 Clause 33.2 para 5), para 7) and para 8) 84 Mr Jeanneret-Gris’ statement says this at [116]
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422. The Claimant says it is under no obligation to comply with it because of its assessment of the operation of the contract and I have already agreed with that above.
423. However, on face value I also think it has no obligation because that program fails the definition to be an Additional Document and it is only Additional Documents with which the Claimant must comply.
424. That the initial construction program; no matter what version it was; would, where there was reasonable cause to do so85; be amended from time to time to a later version reflecting the progress of the works, is entirely consistent with the Claimant’s position. That Rev 3 was issued in December is entirely consistent with that position. That the Respondent had used that Rev 3 program to assess EOT’s 09 to 16 is entirely consistent with that position.
425. The Respondent seeks to have the rider in para 2), “The Construction Program does not form part of the Contract and will not affect the rights of the parties under Clause 33” only apply to those programs it calls “alternative programs”86 but not to ‘the construction program’ which it terms the “Baseline Contract Construction Program” and any amendments to it as a result of EOT’s it approves, the “Revised Contract Construction Program”. No reading I make of the contract document leads to that conclusion. The rider applies to any construction program.
426. I am satisfied that no construction program forms part of the contract.
427. The Respondent further directs me to clauses 3.5 and 3.6 (a)–(c) of the contract inserted by the special conditions in the Annexure Part B (My emphasis).
“3.5 Contractor's obligations
The Contractor:
(a) will be solely responsible for the management, construction and completion of the works under the Contract in accordance with the Contract; and
(b) must ensure that the Works progress to Practical Completion by the Date for Practical Completion;
(c) is responsible for the timely progression, evaluation and monitoring of the progress of the Works including, without limitation the proper sequencing and timely management of all activities, supplies, materials and resources to coincide with the requirements of the Construction Program (as defined in Clause 33.2);
(d) must fulfil all Legislative Requirements;
(e) must comply with all Government Approvals; and
(f) perform the Works to the standard expected of a competent and skilled contractor performing works in the nature of the Works”
3.6 Contractor's warranties Without limiting the generality of Clause 3.4 the Contractor warrants that:
(a) it has carefully considered the Additional Documents, the Drawings, Government Approvals and all other documents and information of any type supplied by or for the Principal;
(b) the Additional Documents, the Drawings and all other documents and information of any type supplied by the Principal or its consultants are proper, adequate and suitable for the purposes for which the Works are intended;
(c) it will complete the Works in accordance with all Additional Documents, the Drawings, Government Approvals and all other documents and information of any type supplied by the Principal or its consultants in a manner and to a quality commensurate with the purpose of the Works;”
428. Importantly it is only in 3.6(a) where by the use of the words “or for the Principal” where one might construe clause 3.6 as perhaps applying to any document which passes from the Claimant to
85 Consistent with clause 33.2 paragraphs 7) and 8) 86 On page 30 of the adjudication response
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the Respondent. Subclauses 3.6(b) and3.6 (c) apply only to documents which pass from the Respondent to the Claimant.
429. The Respondent says that by 3.5 and 3.6, the Claimant agreed to be bound by the baseline program87; which it said should have been bound into the executed contract document; and to complete the works in accordance with that baseline program.
430. I don’t accept that argument, it ignores:
(a) that there is no program which is a contract document to which the Claimant is bound; and
(b) that the timing commitments made in clauses 3.5 and 3.6 are not commitments to meet dates in a program. The only commitment is to meet the Date for PC as amended from time to time.
431. In clause 3.5 there are two commitments as to timing:
(a) At (b) the Claimant commits to “ensure that the Works progress to Practical Completion by the Date for Practical Completion”. It commits to the Date for PC in the contract; of the 2nd November 2015; which may change from time to time and is in contest between the parties here. It is not a commitment to comply with the individual task dates in the Respondent’s Baseline Program;
(b) At (c) the “timely progression, evaluation and monitoring of the progress of the Works including, without limitation the proper sequencing and timely management of all activities, supplies, materials and resources to coincide with the requirements of the Construction Program (as defined in Clause 33.2)”.
This a very broad commitment to progress the works, to evaluate and monitor the sequencing to coincide with the requirements of the construction program defined in clause 33.2. I agree with the Claimant’s submission that the construction program in clause 33.2 is one which may change from time to time. The commitments made in clause 33.2:
(i) At para 1) is that the program will be in writing and will show dates by which the stages or parts of the work will be executed. That is not a commitment to meet those dates or those in the Respondent’s Baseline Program, but to the contents of the program and any updated program it issues;
(ii) At para 2) there are no commitments, it merely says for what purpose the program may (not must) be used by each party;
(iii) At para 3) is to when the program must be given, which is not a commitment to meet any dates in the Respondent’s Baseline Program;
(iv) At para 4) is to what must be in that program, which is not a commitment to meet any dates in the Respondent’s Baseline Program;
(v) At para 5) is that the Contractor must revise the program and submit that revised program to the Superintendent, which is not a commitment to meet any dates in the Respondent’s Baseline Program;
(vi) At para 6) is that the Contractor must; when directed; give the Superintendent a program, when and in the form requested, which is not a commitment to meet any dates in the Respondent’s Baseline Program;
(vii) At para 7) is that the Contractor must have reasonable cause to depart from the program, which is a commitment to not depart from the program which is current at that time without reasonable cause, and which is not a commitment to meet any dates in the Respondent’s Baseline Program. Importantly it is not even a commitment to meet dates amended by approved EOT’s, only that its reasons for departing from the dates it gives from time to time are reasonable, which is entirely consistent with the Claimant’s position on use of the program. The Claimant could
87 That which is dated 25th September 2014 at Tab B12 of the application.
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have reasonable cause to depart from a program without ever having an entitlement to an EOT;
(viii) At para 8) is that giving an updated program does not relieve the contractor from any of the contract obligations; for example, to meet the Date for PC as amended; or to depart from a previous program where it did not have reasonable cause, which is not a commitment to meet any dates in the Respondent’s Baseline Program;
(ix) At para 9) is that the Contractor must comply with a direction; which is a repeat of clause 23.6 of the contract and not a commitment to meet any dates in the Respondent’s Baseline Program;
(x) At para 10) is that the Contractors subcontractors and suppliers are fully aware of the construction program, which is not a commitment to meet any dates in the Respondent’s Baseline Program; and
(xi) At para 11) is that the contractor must provide fortnightly look-ahead programs updated weekly and give them to the Superintendent on a weekly basis; which is not a commitment to meet any dates in the Respondent’s Baseline Program.
432. Therefore, none of the requirements of the Construction Program (as defined in Clause 33.2) are commitments to meet any dates in the Respondent’s Baseline Program. They are commitments as to when the construction program shall be issued, what a construction program shall contain and that the Claimant shall not depart from the current construction program without reasonable cause. The only date the Claimant has committed to meet is the Date for PC.
433. I am satisfied that none of the commitments in clause 3.5 lead to a conclusion that the Claimant had agreed to be bound by “construction program (version 1) dated 1 August 2014 as attached” or Version 2 of the program dated the 25th September 2016.
434. Clause 3.6(a) applies because it includes documents “supplied by or for the Principal” but that only says the Claimant has “carefully considered” the documents. Clearly it had considered the “construction program (version 1) dated 1 August 2014 as attached” and Rev 2: it prepared them. That is not a commitment to meet any dates in the Respondent’s Baseline Program or any program merely to have “carefully considered” the program.
435. Clause 3.6(b) and (c) don’t apply as they only relate to things supplied by the Principal or its consultants. The program “construction program (version 1) dated 1 August 2014 as attached” and all later versions are supplied by the Claimant to the Respondent. Therefore, they are not a commitment to meet any dates in the Respondent’s Baseline Program.
436. I note Mr Jeanneret-Gris’88 submissions on these clauses89 and am not swayed from this view.
437. Under the heading “The Construction Contract and the Application of the Act” above, I said I have no jurisdiction to award damages unless there is a contractual provision dealing with entitlement and quantum.
438. Even if the Claimant had failed to do the things in clauses 3.5 and 3.6 above, the Respondent’s remedy is either damages or to take the steps in clause 44 through to finality, not merely issue notices to show cause. It has not. Hence there is no effect on my decision other than perhaps that the dispute documents might assist me to form a view as to who might, or might not be responsible for a delay.
439. I further deal with this issue below under the heading “The notices to show cause”.
440. I am satisfied from the submissions of the parties that:
(a) Where the construction programs given by the Claimant to the Respondent have been revised for reasonable cause, then that revised construction program is the program which may be used by the Claimant and the Respondent for the purposes in Clause 33.2 Para 2);
88 At [122]-[126] of his statutory declaration. 89 Referred to in the adjudication response at 9.4
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(b) The Claimant has not committed to meet the program or the dates in the program the Respondent refers to as its Baseline Contract Construction Program as amended from time to time and only by approved EOT’s; to form what the Respondent calls the Revised Contract Construction Program: and
(c) The only date the Claimant has committed to meet under the contract is the Date for PC which may be amended from time to time.
441. I am satisfied that the construction program which may be used under clause 33.2 para 2) is one that is amended by the Claimant; from time to time, for reasonable cause; from the Revision 3 program issued on or about the 22nd December 2014 which is a variant of the original contract program bound in the contract document, which was subsequently amended by agreement to Revision 2 on or about the date of execution.
442. I am satisfied that the use of the word “may” is consistent with the program not being a contract document.
443. Clause 35.5 para 13(d)(i) is not a commitment to meet this construction program, it is a requirement that any EOT claim must include submissions with may or may not; in the reasonable opinion of the Superintendent; demonstrate any delay is on the critical path on that construction program. This is consistent with the Claimants submissions.
444. With regard to the last paragraph of 6.5 and the second last paragraph of 6.6 of the response, I disagree with the Respondent that under the Claimant’s interpretation of the contract it could be awarded an EOT for its own culpable delay. I disagree, clause 35.5 para 5) ensures that cannot happen. I deal with clause 35.5 below under the heading “The method of revising the Date for PC under the contract”.
445. The Respondent’s position; in the last paragraph of 6.5 of the response; could lead to equally unattractive outcomes.
(a) For example; should the Respondent suspend works where there was but one very minor but concurrent delay at the time of the suspension, where the suspension meant the concurrent delay could not be rectified, then the Claimant could conceivably be liable for liquidated damages (“LD’s”) for; or close to; the period of the suspension.
(b) It wouldn’t have a right to an EOT under clause 34.4 because there was a concurrent and incomplete delay. LD’s are unlimited under this contract.
(c) The words “to the extent that” in clause 35.5 para 5) wouldn’t save the Claimant as the extent would be 100%.
(d) It is only where the contract is dynamic, in that the program against which time is counted is changed from time to time; from the original and for reasonable cause; where delay is treated prospectively, and where it is not necessary for a delayed task be completed before the delay ends (in a finish-start relationship), that the unattractive outcome would not occur.
(e) In other words, under the Claimant’s interpretation, with which I agree.
The notices to show cause
446. The Respondent has issued two show cause notices.
447. The first90 under clause 44.2 is dated the 3rd September 2015 and alleges the Claimant has breached clause 33.1 in that it failed to proceed with the work under the Contract with due expedition and without delay.
448. At page 29 of the adjudication response, the Respondent refers me to paragraph 1 of Clause 33.1 of the standard AS2124 contract which is unchanged by Annexure Part B in the Special Conditions:
“33.1 Rate of Progress
The Contractor shall proceed with the work under the Contract with due expedition and without delay.”
90 At Tab B1 of the application
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449. Failure to proceed with due expedition and without delay, in breach of clause 33.1, is specifically named as a substantial breach of the contract at clause 44.2.
450. The Claimant says this is in effect a notice to accelerate.91 It contests that it was not proceeding with the work under the Contract with due expedition and without delay.
451. It says it did accelerate and that is demonstrated in the “9-Sep-15 Tricare Delay Mitigation Program Rev A”.
452. The second92 show cause notice is also under clause 44.2 and dated the 24th March 2016 and also alleges inter alia, that the Claimant has breached clause 33.1 in that it failed to proceed with the work under the Contract with due expedition and without delay. That notice also alleges breaches with respect to:
(a) a failure to use the materials or standards of workmanship required by the Contract, in breach of clause 30.1;
(b) a failure to comply with a direction of the Superintendent under clause 30.3, in breach of clause 23; and
(c) a failure to perform the Works to the standard expected of a competent and skilled contractor performing works in the nature of the Works in breach of clause 3.5(f).
The Claimant says this was in effect a notice to address defects.93In each case the Claimant has disputed the notice.
453. The contractual remedies available under clause 44.4 where the Respondent believes the Claimant has failed to show reasonable cause are to either take that element of the work out of the hands of the Claimant or to terminate the contract. In neither case has either option occurred.
454. Therefore, the effect of the notices94 for this adjudication is limited to there being evidence of a significant dispute over the claims and of the Claimants reply to those disputes, which are; in part95; the subject of this adjudication application.
455. As the contract remedies in clause 44.4 have not been activated, there is no legislated effect,96 or contractual effect on entitlement and quantum, which may have been the case had they been activated.
The method for revising the Date for PC under the contract
456. The method by which the Date for PC may be changed is found in clause 35.5 of the contract as amended in the Annexure Part B – Special Conditions. I have added paragraph numbers in bold; e.g. 4); for ease of identification:
“35.5 Extension of Time for Practical Completion
1) When it becomes evident to the Contractor that anything, including an act or omission of the Principal, the Superintendent or the Principal's employees, consultants, other contractors or agents, may delay the work under the Contract, the Contractor must promptly notify the Superintendent in writing with details of the possible delay (including the likely duration of the delay) and the cause.
2) When it becomes evident to the Principal that anything which the Principal is obliged to do or provide under the Contract may be delayed, the Principal will give notice to the Superintendent who will notify the Contractor in writing of the extent of the likely delay.
3) If in the reasonable opinion of the Superintendent, the Contractor is or will be delayed in reaching Practical Completion by a cause described in the next paragraph and, within 5 Business Days from the day the event first occurs, gives the Superintendent a written notification of the
91 Application at [25]. 92 At Tab G32 of the application 93 Application at [27] 94 And for the notice to provide a program on the 15th October 2015 95 Some EOT claims are after the date of the last notice 96 For example, s17A(3)
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delay and, within 10 Business Days after the delay first occurs, gives the Superintendent a written claim (including all reasonably necessary supporting documentation to enable the Superintendent to assess the claim) for an extension of time for Practical Completion setting out the facts on which the claim is based, the Contractor will, subject to the operation of clause 35.10 (which may, where an extension of time is granted, cause the Date for Practical Completion to not be adjusted), be entitled to an extension of time. The Contractor will not be entitled to any extension of time should it fail to provide the notices required under, and within the time specified in, this Clause 35.5.
4) The causes are:
(a) events occurring on or before the Date for Practical Completion which are beyond the reasonable control of the Contractor including but not limited to:
(i) industrial conditions, such as strikes, labour disturbances, disputes or lockouts except where such industrial conditions are unique to the Contractor or the Site;
(ii) inclement weather conditions which differ from those conditions which should reasonably have been anticipated at the Site by an experienced and competent Contractor.
(b) any of the following events whether occurring before, on or after the Date for Practical Completion:
(i) delay caused by:
(A) the Principal; or
(B) the Superintendent,
(ii) variations directed under Clause 40;
(iii) changes in the Government Approvals after the date of the Contract which could not have been anticipated by an experienced and competent Contractor;
(iv) claims referred to in Clause 17.1(v)
(v) a substantial breach of the Contract by the Principal;
(vi) any other cause which is expressly stated in the Contract to be a cause for extension of time for Practical Completion.
5) Where more than one event causes concurrent delays and the cause of at least one of those events, but not all of them, is not a cause referred to in the preceding paragraph, then to the extent that the delays are concurrent, the Contractor is not entitled to an extension of time for Practical Completion.
6) With any claim for an extension of time or as soon as practicable thereafter, the Contractor must give the Superintendent written notice of the number of days extension claimed. If a delay event is ongoing, the Contractor must provide written updates to the Superintendent every 5 Business Days.
7) If the Contractor is entitled to an extension of time to the date for Practical Completion the Superintendent will, within 15 Business Days after receipt of the notice of the number of days extension claimed, grant a reasonable extension of time. If within 15 Business Days the Superintendent does not grant the full extension of time claimed, the Superintendent will, before the expiration of the 15 Business Days, give the Contractor notice in writing of the reason.
8) In determining a reasonable extension of time for an event causing delay, the Superintendent will have regard to whether the Contractor has taken all reasonable steps to preclude the occurrence of the cause and minimise the consequences of the delay.
9) The Contractor will not be entitled to any payment arising from the gaining of an extension of time over and above any payment to which he is entitled under the Contract for the event that has caused such extension of time. If the Superintendent forms the view that the Contractor has not maintained progress in accordance with the current Construction Program (as defined in Clause 33 of this Contract) the Superintendent may direct the Contractor to increase its labour force, equipment, hours of work, shifts or make other special expediting arrangements to bring the work back on schedule and maintain progress in accordance with the current Construction Program.
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10) The Contractor will not be entitled to any additional payment as a result of complying with this direction unless the Contractor would otherwise have been entitled to claim an extension of time for Practical Completion in which case, subject to the requirements of Clauses 23 and 40, to the extent that the direction causes the Contractor to incur more or less cost than otherwise would have been incurred, the difference will be valued under Clause 40.5.
11) Notwithstanding that the Contractor is not entitled to an extension of time, the Superintendent has discretion to and may, from time to time before the issue of the Final Certificate, by notice in writing to the Contractor, extend the time for Practical Completion for any reason, however the Superintendent may not, without the prior written consent of the Principal, exercise this discretion for the benefit of the Contractor in any circumstances whatsoever.
12) A delay by the Principal or the failure of the Superintendent to grant a reasonable extension of time or to grant an extension of time within 15 Business Days will not cause the Date for Practical Completion to be set at large.
13) The Contractor will only be entitled Clause to an extension of time for Practical Completion pursuant to this clause if:
(c) the cause of the delay is a cause listed in the fourth paragraph of this Clause; and
(d) the Contractor:
(i) has demonstrated the activities delayed are on the critical path in the Construction Program referred to in Clause 33.2;
(ii) has complied strictly with this Clause 35.5 and in particular has given the claims and notices required by this Clause strictly in the manner and within the times stipulated; and
(iii) has taken all proper and reasonable steps necessary and within its control both to preclude the occurrence of the cause of the delay and to avoid or minimise the consequences of the cause of delay."
457. It is uncontroversial that the effect of any EOT’s issued under clause 35.5 shall be subject to clause 35.10 inserted in the Annexure Part B which says:
“35.10 Float
The Parties agree that the first 10 Business Days, in the aggregate, of extensions of time granted under the Contract will not:
(a) result in any extension to the Date for Practical Completion; or
(b) result in any payment for delay or disruption under clause 36 of this Contract."
458. The Claimant has previously sought and been granted EOT’s under the contract in EOT claims 1 to 8 amounting to 10 business days. Therefore, the entire amount of float allowed under clause 35.10 has been exhausted and any further EOT I may decide should have been allowed97, will affect the Date for Practical Completion for the purpose of valuation.
459. I have already said above under the heading “The role of the construction program under the contract” that I agree with the Claimant’s submission that the process for EOT’s is a prospective one because under para 3) of clause 35.5, a claim may be made where the Superintendent is of the view that the “Contractor is or will be delayed in reaching Practical Completion by a cause described in” clause 35.5 para 4). (My emphasis)
460. I don’t think the Respondent adequately addressed this submission in its response either at 6.5 or 9.
461. I am satisfied that whilst there is a difference between the triggers for the written notifications to be given under clause 35.5 they all point to the prospective nature of the delay notification process; for both what the Respondent calls the ‘Notice of Possible Delay’ and the ‘Delay Notice’ (My Emphasis):
(a) para 1) – “When it becomes evident to the Contractor that anything, including an act or omission of the Principal, the Superintendent or the Principal's employees, consultants, other contractors or agents, may delay the work under the Contract,”
97 As part of the valuation exercise.
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(b) para 2) – “When it becomes evident to the Principal that anything which the Principal is obliged to do or provide under the Contract may be delayed”; and
(c) para 3) – “If in the reasonable opinion of the Superintendent, the Contractor is or will be delayed by a cause described in” para 4) then:
(i) a notice of the delay is required to be given by the Contractor within 5 Business Days from the day the event first occurs; and
(ii) a written claim is to be given by the Contract within 10 Business Days after the delay first occurs,
This wording is proof of the prospective nature of the notices and also; because the delay may continue far past 10 Business Days after the delay occurs; the prospective nature of the claim.
462. As the heart of the dispute between the parties is found in the operation of this provision:98
(a) in particular the provisions relating to the timing for notification of delays and notifications of claims; and
(b) as the clause has been heavily amended from that in the standard AS2124 contract, and
(c) as I had located at the top of page 38 of the response that the Respondent asserted that:
“Grindley does not become entitled to an EOT for any failure by the Superintendent to provide reasons as outlined above”;
where I am certain that the contract is silent on what happens if the Superintendent fails to issue reasons within the contracted 15 business day period or at all.
Then in order to understand the parties’ submissions on the heavily amended words of the clause and to identify the contractual outcomes for failure to comply with the contract99, where the contract is central to my jurisdiction, I have mapped the process of clause 35.5 at Appendix F to this decision.
463. Having undertaken that task, it is clear that the Claimant’s assessment of what it must do at [142] of the application, does not give a full picture of its obligations.
464. I accept the Respondent’s submission in the second last paragraph of 6.6, but repeat what I said earlier, that I think clause 35.5 para 5) adequately deals with the issue of the Claimant never being entitled to an EOT for its own culpable delays. Otherwise; having undertaken the mapping of the clause and subject to what I say below; I don’t take issue with what the Respondent says in 6.6 of the response.
465. The Claimant says100 the Respondent and its lawyers have no understanding of the operation of clause 35 in its submissions on the individual EOT’s.
466. There are some parts of clause 35.5 which do not provide for an outcome for failure to comply and others where there is no fixed objective measure of compliance. They include; with my comments on how I propose to deal with them; inter alia:
467. Whether something has become evident in para 1) & 2), may only be determined subjectively from the submissions;
(a) There is no definition of ‘promptly’ in para 1), hence that timing will be a matter of judgment based on the circumstances;
(b) There is no outcome for the Respondent’s failure to notify under para 2), however equally there is no time limit within which it must give that notice; it might give it now or at some time in the future; nor must it be given in writing, hence such notification may actually have been given verbally in a meeting or by telephone and whether or not that occurred will be a matter of judgement from the submissions and the supporting information;
98 and those in clauses 40.1 and 46 99 Which is at the core of the Respondents reasons for withholding payment. 100 Application at [31]
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(c) There is no definition in clause 2 as amended by the Annexure Part B of a “delay event” which is referred to in para 3) the contract only deals with the cause of the delay event, although I note that in para 8) the contract refers to “an event causing delay”.
The issue here is that the start of the 5 business days for notification under para 3) is triggered by the delay event first occurring; whereas the trigger for the commencement of the 10 days within which the Claimant must give the claim under para 3), is when the delay first occurs.
That delay event may not be at the commencement of the delay, but an event which precipitates delay in the future; consistent with para 8).
For example, putting aside whether the Claimant is factually correct or not:
The Claimant alleges it attended a meeting on the 28th January 2016 wherein it was told verbally that the Respondent would be proceeding with design changes and that the Respondent would issue a stop work notice on that element of the work ‘tomorrow’ i.e. the 29th January 2016. A verbal notice is acceptable under para 2) when given by the Superintendent to the Claimant. Under clause 23.6 that verbal direction should; where reasonably practicable; be confirmed in writing. That is a requirement of the Superintendent, not of the Claimant. The Claimant is still required to comply with the verbal direction. However, that stop work notice was not issued until the 2nd February 2016 and the Claimant had informed the Respondent that it would continue work until it received a notice to stop. Thus the delay event is the verbal notification given on the 28th January and the first time the delay occurred was on the 2nd February or sometime thereafter.
Therefore; assuming the Claimant is factually correct; the 28th January 2016 is when the 5 business days started for the notification period under para 3), but the delay did not occur for the first time until the 2nd February 2016 which is when the 10 business day period for a claim to be made under para 3) commenced.
The Respondent uses the words in the contract101, but doesn’t otherwise address them in terms of the submissions until it deals with specific EOT’s. The Claimant doesn’t address them as an issue in the general contract submissions in its application but then does so when it makes specific submissions on the dates it gave notices in EOT8 onwards.
Whether notices were or were not given can only be assessed in each case against the documents that relate to them in the submissions.
(d) Under para 6) the Claimant must give the Superintendent written updates of delays every 5 business days, however it does not expressly say every 5 business days after what milestone or event those updates shall commence.
It may be 5 business days after the delay event occurred, or it may be 5 business days after the delay first occurs. One can only assume it is within 5 business days of the first notification under para 3).
I am satisfied that a claim for the number of days of EOT, may be made with the EOT claim (para 3)) or as soon as practicable thereafter (para 6)), which covers the circumstance where a delay is on-going. In that regard I note the Claimants reference102 to BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2007] VSC 409 at [73]-[75] where the term “as soon as practicable thereafter” was determined to mean a number of days “sufficiently ascertainable by a process that made the quantifications (of the days of delay reliable”.
However, the contract is silent on when an assessment of that ongoing delay might be made, if at all.
One can only then assume that a para 7) assessment applies to an update in para 6). There is no express term which covers that circumstance.
101 At 6.6 of the response 102 Application at [443]
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The Claimant says it has made such updates in terms of its EOT Register issued to the Respondent every 5 business days. I deal with that issue under the heading “The Claimant’s use of the EOT register for Notification”.
(e) As mentioned above, I disagree with the Respondents submission on page 38 of its response on the outcome of the Superintendents failure to provide reasons or to do so in time in para 7). There is no express outcome in the contract and it certainly does not say; as the Respondent asserts103; that the failure to provide an assessment does not mean the Claimant becomes entitled to an EOT, it is silent on the matter.
Adjudicator standing in shoes of the Superintendent
468. I have already decided under the heading “Valuation of construction work and related goods and services” that I am to value the construction work and related goods and services under the provisions of the contract because the contract provides for the matter.
469. I said in that same section “where the contract allows for payment of delay costs, or the imposition of liquidated damages and where the valuation of those costs or damages under the contract is to be determined by a calculation involving a number of days by reference to those two dates; then I am satisfied that I may make an assessment of those dates based upon the submissions made to me, as part of the valuation exercise under s14(1)(a). The dates in that circumstance, are merely variables in the contract’s valuation mechanism for those costs or damages.”
470. I am satisfied I may stand in the shoes of the Superintendent in assessing the variable ‘time’ which will lead to an assessment of dates both for PC and of PC for the purpose of the valuation I undertake under the contract in line with s.14 of the Act.
471. In this regard I note and agree with the Claimant’s submissions at [508] in the application in relation to the decision of McMurdo J. in Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58 with which I shall deal later under the heading “No grant of an EOT by the Superintendent”.
Approval of Shop Drawings
472. In his statement, Mr Jeanneret-Gris104 accepts that there is a need for the engineer to approve structural steel shop drawings.
473. He says that there was no need to re-issue engineering drawings for that purpose but that the architectural drawings would suffice.\
474. What that ignores is that the Respondent was responsible for design and therefore contractually it was bound to supply the information regardless of whether it believed the Claimant could work from the other information provided.
Extension of time claims
475. I have already addressed that the parties do not contest the 10-day float in clause 35.10 of the contract nor do they contest that EOT1 to EOT8 have been approved such that as at the approval of EOT8, the whole of the float had been consumed and that the Date for PC remained at the 2nd November 2016105.
476. The parties each have time experts reports. On the one hand the Claimant has been using the reporting of Mr. Heazlewood of TBH and the Respondent provides the report of Mr. Ash of TPP.
477. Each is critical of the other and I think the chronology of:
(a) when EOT claims have been made by the Claimant;
(b) when assessments of the claims are made by the Respondent;
(c) when show cause notices are issued;
(d) when adjudication documents have been issued; and
103 Below (b) on page 38 of the Response submissions 104 At [168] 105 Adjudication response at 9.1
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(e) when expert reports are issued;
are perhaps relevant to the criticisms made of the other expert in those reports. That chronology is shown below.
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478. I deal with the issue of the Claimant alleging that its issuing of regular EOT Registers to the Respondent complies with the requirements for notification and claims under clause 35.5 later under the heading “The Claimant’s use of the EOT register for Notification”.
479. Having reviewed the contract at Appendix F, I am satisfied that the initial notification in para 1), the notice in para 3), the claim in para 3) and updates under para 6) of clause 35.5 of the contract, may be the same document where they otherwise comply with all of the requirements of the contract.
480. What the contract requires is timing and content.
481. Where; mindful that the trigger for each of the notices and claim is a different thing; a document is issued to the Superintendent within the timing for both notices and claim and contains the details required for both, then absent an express provision which says they must be separate, then I am satisfied they can be in the same document. I am referred to the decision of Pagone J. in BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2007] VSC 409 under the heading “EOT10 & EOT15 External Façade Amendments” which supports that position.
482. The Respondent has allowed EOT 9 where this is the case.
483. The Respondent makes a general submission106 that the failure by the Claimant to issue a notice strictly in accordance with the contract means the Claimant has no entitlement to an EOT. It refers me to the decision of Cole J. in Turner Corp Limited (Receiver & Manager Appointed) v Austotel Pty Ltd (1997) 13 BCL 378 at [12]:
“If the Builder, having a right to claim an extension of time fails to do so, it cannot claim that the act of prevention which would have entitled it to an extension of time for Practical Completion resulted in its inability to complete by that time. A party to a contract cannot rely upon preventing conduct of the other party where it failed to exercise a contractual right which would have negated the effect of that preventing conduct”.
484. I accept that submission and shall follow it subject to submissions below particularly those to EOT10 & EOT15, all of which I think are consistent.
The Claimant’s use of the NOD and EOT Register for Notification
485. Up to and including the issue of EOT16, the Claimant has issued formalised individual notices of delay and of EOT claims. Thereafter it relies on the weekly issue of its “NOD and EOT Register” as its conformance with the notification and claim requirements of clause 35.5 of the contract.
486. The Respondent says:107
“Grindley has on some occasions recorded details about alleged delays in a delay register. However, it is not clear from the delay register whether the information recorded is simply intended as a notice of delay or a delay claim or both. It cannot be said that Grindley has strictly complied with GC 35.5. Strict compliance is required to avoid the kind of confusion and uncertainty over the status of claims made by Grindley that is evident from Grindley’s use of the delay register in this matter. TriCare has consistently required Grindley to serve notices and claims in accordance with GC 35.5 but other than its EOT Claims 1 - 16 Grindley has chosen not to do so.
In respect of other claims (EOT 10 and 15) Grindley has served notices but has served crucial notices outside of the timeframes required in the Contract (see below in respect of the notices required under GC 46.1)”
487. I agree with the Respondent that strict compliance is required, but think it misinterprets what those strict requirements are.
488. The Respondent submits it has a right to say in what format the notices and claims must be given to it. I can see no such right in the contract.
489. I deal with this in more individual detail under the heading “EOT10 & EOT15 – External Façade Amendments” below. I am satisfied, in terms of the parties’ submissions and the authorities quoted
106 Adjudication Response at 107 At 9.2 in the adjudication response
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to me there, that those things with which the Claimant must strictly comply are:
(a) With respect to a notification under para 1) of clause 35.5:
(i) When it becomes evident to it that anything may delay the work, it must issue a notice to the Superintendent;
(ii) The notice must contain details of the possible delay (including the likely duration of the delay) and the cause.
(iii) I am further satisfied that:
(A) There is no strict timeframe for the giving of that notice, merely that it be done ‘promptly’;
(B) There is no strict contract requirement as to the format of that notice; merely that the Superintendent is aware of what it has received and informed by the notice of the things in (ii) above.
(b) With respect to a notification under para 3) of clause 35.5:
(i) It must give the Superintendent notification of the delay within 5 business days from the day the event first occurs;
(ii) I am further satisfied that:
(A) There is no requirement as to the content of that notice other than to inform the Superintendent of the delays existence and; inter alia;
a) It is not required to prove that the cause is one in para 4), that is a ‘reasonable opinion’ the Superintendent must hold;
b) It is not required to give a duration;
(B) There is no strict contract requirement as to the format of that notice; merely that the Superintendent is aware of what it has received and informed by the notice, of the delay;
(c) With respect to a claim under para 3) of clause 35.5:
(i) It must give the Superintendent a claim within 10 business days of the day the delay first occurs;
(ii) That claim must set out the facts on which the claim is based;
(iii) I am further satisfied that
(A) Everything else noted in para 1) to para 13) of clause 35.5 of the contract is something which the Superintendent must do or consider as part of its assessment. Certainly if the claim does not address those issues then the claim may be validly rejected. But acceptance or rejection of the claim is a matter for the Superintendent. None of those other things are strictly required of the Claimant; As long as the claim includes those things in (i) and (ii) above it is a valid claim;
(B) There is no contract requirement as to the format of that notice; merely that the Superintendent is aware of what it has received and is informed by the notice, of those things in (i) and (ii) above;
(C) There is no strict contract requirement that the Claimant must state the duration of the delay. Under para 7):
a) If it does give the duration on the claim, then the Superintendent must assess the claim within 15 business days;
b) If it does not give a duration, then the Superintendent is under no obligation to do so within 15 business days until one is given within reasonable time.
c) Specifically, I don’t think this provision stops a claimant from
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issuing one duration in the claim in Para 3) and then where a delay is continuing then perhaps multiple notices under para 7), such that the Superintendent may be required to make multiple assessments. I think this is the case with the claim made for EOT10 and then a claim made for EOT15 where that delay continued past the 10th June 2015. I don’t think para 7) means that only one assessment will be made once the delay is complete. There is no express provision which says that.
490. Where there is no contractual format for any of the notices or claims under clause 35.5, then I am satisfied that where the ‘NOD and EOT Register’:
(a) Is given to the Superintendent attached to its regular; it seems weekly; emails; which contain the words “Please find attached Notices of Delay Claims for your action. This document contains all known outstanding items at today’s date requiring resolution”, or similar;
(b) States at the top of the Register the words:
“NOTICES OF DELAY CLAIMS FOR EOT’s
We enclose our notice(s) of Delay and claim(s) for EOT for clause 35.5 of the contract”; and
(c) Has been issued within the strict timeframes in clause 35.5; and
(d) Contains the information required for a particular type of notice or claim under clause 35.5;
Then:
(e) the Superintendent / Respondent is aware of what it is receiving; and
(f) the notice / claim is valid under clause 35.5 of the contract.
491. I deal with those strict compliance issues in relation to each EOT claim below, but say it seems an efficient way of ensuring contract compliance to issue such a register.
492. The Respondent says in its payment schedule that the EOT register was issued sporadically. However, it hasn’t directed me to where it was not issued in all cases necessary to defeat all of specific EOT claims. I say all of because I am satisfied that up until it does not issue one then the claim is still live under clause 35.5 para 6).
493. The Claimant says throughout its documents that the EOT register was issued every week in relation to its delay claims in this adjudication. I have not been drawn to spe4cific instances of where that has not occurred.
Architectural and Structural Engineering Expert Reports
494. I have read the report of Mr McKerrell108 and accept his assessment that:
(a) the work involved in the amended design is less than what would have been expected in the original design as whilst there was a greater amount of FC sheeting above the glazing, the construction was far simpler than the raked design; and
(b) the amended design of the roof trusses to allow for the extension of the bottom chord and stiffening of the chord would not have delayed the manufacture of the trusses; and
(c) there was no adverse effect on the glazing suites and windows.
495. Whilst I accept these things, I don’t think they assist is resolving this dispute because I don’t think it is the time to undertake the work which is central to this dispute but the interrelationship of tasks and the alleged delay caused by instructions to alter the work. Those things are independent of the amount of additional or lesser work to undertake the actual tasks.
496. I note the statement of Mr Gentile109 does not disagree in any material way with this report.
108 At Tab 11 of Volume 16 of the adjudication response
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497. I have read the report of Mr. Payne and accept his conclusion110 that:
“As the decorative PFC barge/fascia board was not providing support to the roof trusses, its removal would not have an impact on the structural design of the roof trusses.”
498. Whilst I accept this finding, I don’t think it assists in resolving this dispute because I don’t whether there was a change or if it is an insignificant or significant change which is central to this dispute but the interrelationship of tasks and the alleged delay caused by instructions to alter the work. Those things are independent of the amount of additional or lesser work to undertake the actual task of truss installation.
499. With regard to both of these reports, I disagree with the Respondent at 12.2 of the response111 that these reports show the façade amendments could not have delayed the project. They report on the technical / visual effect of the changes in their areas oi expertise only.
Delay Expert Reports
500. Chronologically;
(a) In its adjudication application, the Claimant provides a report by Mr. Heazlewood of TPP entitled “Report on Delays and EOT’s” (the “TPP report”) of the 31st May 2016112;
(b) In its adjudication response, the Respondent provides a report entitled “Report in reply to TPP Delay and EoT’s”, of Mr. Ash of TBH, (the “Ash report”) of the 12th July 2016113; and
(c) In the claimant’s reply, the Claimant provides Mr. Heazlewood’s report entitled “Reply to TBH Report 24 August 2016” in reply to Mr. Ash’s report (the “TPP2 report”) of the 24th August 2016114.
501. There are several specific disagreements between the experts which are central to this dispute.
The Program
502. I have already decided under the heading “Adjudication Response – Expert’s Reports” that the TPP2 report by Mr Heazlewood is a properly made submission in the claimant’s reply.
503. Similarly, under the heading “The role of the construction program under the contract”, I agree with the Claimant’s submission that the process for EOT’s is a prospective one because under para 3) of clause 35.5, a claim may be made where the Superintendent is of the view that the “Contractor is or will be delayed in reaching Practical Completion by a cause described in” clause 35.5 para 4).
504. The TPP report is consistent with that proposition. I don’t think the Ash report is consistent with that position, or at least some of its assessments are not. In that regard I think there is some inconsistency between the Respondent’s adjudication response submissions and the way Mr Ash then addresses the issue in his report.
505. In short, I accept the Claimant’s position that under this contract as amended in the Annexure Part B, at clause 35.5, any assessment of an EOT must be made against the “current construction program” referred to in para 9) of clause 35.5 of the contract and not some historical document which may have little or no relationship to the work actually occurring from time to time.
506. I am satisfied that the construction program which may be used under clause 33.2 para 2) is one that is amended by the Claimant; from time to time, for reasonable cause; from the Revision 3 program issued on or about the 22nd December 2014 which is a variant of the original contract program bound in the contract document, which was subsequently amended by agreement to Revision 2 on or about the date of execution.
109 At Folder 15 of the adjudication response 110 At 5.0 in Tab 10 of Volume 16 of the adjudication response 111 At the top of page 90 112 At Tab A6 of the application 113 At Tab 9 of Volume 16 of the adjudication response 114 At Tab J of Volume 1 of 4 of the claimant’s reply
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Other criticisms by Mr. Ash
507. Whilst I have used and developed programs regularly over a period of 30 years, I do not claim to be an expert. I am provided with that expertise by the parties, in Mr Heazlewood for the Claimant and Mr. Ash for the Respondent. I have already decided above that I accept they are experts in this field.
508. Therefore, subject to some specific points where one party or the other has conceded a position in those reports, I am left with the task of preferring the report of one parties’ expert over the other on particular facts which shall decide the various EOTs.
509. The Claimant asserts that the façade works are on the critical path albeit that it admits; as I deal with below under the heading “EOT10 & EOT15 – External Façade Amendments”; that this only occurs on the 10th June 2015115. It says that date is why it only issued its EOT claim at that point which is consistent with the assessment of EOT’s against the ‘current construction program’ discussed above. That admission however has a significant effect on quantum of the overall EOT10 & EOT15 claims.
510. The Respondent says the façade works are not on the critical path at all, but that it is the internal works on the critical path. In what I will accept is an alternative submission, it refers me to that admission by the Claimant on the 10th June 2015 date.
511. Mr Ash says that there is an incorrect link between the structural steel and roofing activities to the façade installation which derives a false critical path.
512. Whilst Mr Ash refers to this as an incorrect link116, from the submissions from the parties I don’t think this is an incorrect link, but merely a change made by the Claimant when it asked TPP to develop the acceleration program of the 22nd October 2015117.
513. Mr Ash is critical of the finish to start link between the removal of the scaffold and the commencement of the external works.
514. He says that in his experience the external works can commence before the scaffold is removed.118 He does not address whether it was possible to remove the scaffold on this particular project before the external works could commence.
515. From the program, that external work was the driveway. It is a matter of fact on this project as to whether the scaffold was in a location where the driveway was located and thus whether it could be removed.
516. This is important as it seems from each of the programs that the scaffold was required for both the steelwork, the trusses, the roofing and the facade. Therefore, a delay to any one of them effects the removal of the scaffold and subsequently if the finish to start link between the scaffold removal and the external works commencement is a valid link then there will subsequently be a delay to the external works.
517. The link which Mr Ash says is incorrect, is a link which I think remains between the trusses and the facade; as the facade is attached to the bottom chord of the trusses; it is just that after the Claimant removed the finish to start link, there remained an element of the truss work which must be complete before some of the facade work might commence. The facade is attached to it.
518. In other words, the facade work could not commence before the truss work had commenced – it was attached to the trusses and therefore must occur after at least a portion of the truss work was in place. Therefore, there remained a start to delayed start link, where there is a link between the end of the facade works and the removal of the scaffold. I don’t accept there is a similar link between the roofing and the facade. I think they are independent tasks, but the end of each may drive the removal of the scaffold.
519. I think this is at the heart of the admission by the Claimant of the 10th June 2015 date being when the facade work became critical.
115 At [196] of the application 116 At [11] in his report 117 At Appendix D of the Ash Report 118 At [114] in his report
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520. Mr Ash has not shown; in terms of the program; why the link between the end of the scaffolding and the beginning of the driveway was not critical, he makes a statement that it is not - in his experience. He needed to do that in terms of the tasks of work on this project, not his experience on most projects. That is not a criticism of his comment, merely that I say his comment does not assist to resolve this issue.
521. If he had done so, then I would have agreed that the critical path passed through the roofing into the internal works. The building would have been watertight after the roofing was complete allowing internal fitout work to commence whilst the external works continued independently. Although I also think that is not necessarily a finish to start relationship. Where the roofing was finished in some places, or even mostly completed, then some of the fitout could have commenced in those areas.
522. Where he has not proved why that link should not be there on this project; then it seems to me that the critical path passes through the steel work and trusses; where the facade may start after a part of the trusses were in place which is consistent with the removal of the finish-start link in the acceleration program; then to the remaining cladding; where the facade and the roofing are dependent on the trusses but the roofing takes less time than it does to complete the facade; then through the removal of the scaffold and thence to the external works.
523. What strikes me firstly is that the finish to start link between the structural steel and the facade work is shown on both the 1st August 2014 program bound into the contract and the 25th September 2014 program.
524. The first of those two is what the Respondent terms the ‘tender program’ and the second of them I think is agreed as the contract program.
525. In other words; whilst the program does not form part of the contract; this is part of the information upon which the Respondent appointed the Claimant to undertake the work.
526. I also note that if I had accepted the Respondent’s submission that the Claimant was required to comply with the contract program in the Annexure Part E; albeit where it is not part of the contract; which I don’t; then it would have been required to comply with the finish to start nature of the Structural Steel / Roof Trusses and the Windows and Façade treatment relationship shown as critical thereon.
527. That is one of the inconsistencies I find between Mr Ash’s report and the Respondent’s adjudication response submissions.
528. Mr Ash says the programs provided by the Claimant are too high level for delay analysis. Whether that is the case or not; and I suspect he is correct; again, until the acceleration program was directed by the Superintendent in October 2015, the Respondent had considered them adequate to engage the Claimant and for 12 months of construction work.
529. The Respondent’s staff; from their statutory declarations; are experienced in the construction industry. If they did not consider the timing of the works which was demonstrated on those programs was adequate, then I think they might have asked for more detail far earlier and indeed in assessing the Claimant’s tender before the Claimant was appointed.
530. At 7.3 of the Ash report, Mr Ash refers to a statement at [114] of the application wherein the Claimant says:
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531. I deal with the specifics below under the heading “EOT10 & EOT15 – External Façade Amendments”.
532. Mr Ash says those paragraphs are contrary.
533. I disagree.
534. A link in a program can cause tasks to be critical for many reasons which depend entirely on the interrelationship between other tasks at a particular point in time, which is another reason why I approve of the Claimants ‘current construction program’ assessment of EOT’s argument. The TPP2 report addresses this at 2(a). I think the parties otherwise agree that is the case.
535. The Ash report is named as in reply to the TPP report. Therefore, it is not surprising that it focusses on the assessment of Mr Heazlewood rather than on his own assessment. The TPP2 report in turn is in reply to the Ash report.
536. Thus firstly, I am satisfied where the TPP2 report does not take the Ash report to task it agrees with the Ash Report and conversely where it does take the Ash report to task then I should compare each of the submissions.
537. Secondly the TPP2 report says that “TBH does not produce any programming analysis to support its views”.119 I agree with that statement; it concentrates on historical events rather than those contemporary to the event itself which is what clause 33.2 suggests should be done. That is not to say the Respondent’s data or comments are incorrect, but they stray from the method suggested in the contract. Indeed, I think it noteworthy that I say Mr Kaggelis’s statement120 on dates has been most useful.
538. Where it does not produce alternative programming assessment, then I must in the absence of any, accept that of Mr. Heazlewood. There is no other way of assessing what Mr Ash says in terms of the current program.
539. That is not to say I don’t accept anything of what the Ash report says, merely that I don’t have any programming assessment to compare. Indeed, much of the logic behind Mr Ash’s submissions make sense to me. But he hasn’t applied it to the contemporary programs.
540. My jurisdiction lies in the contract and the Act. Whilst the contract only says ‘may’ at clause 33.2 para 2), the method employed by Mr. Ash looks at items in isolation and not at the change they make to the contract program logic which may show that activities are in fact delayed. I note he makes that criticism of the TPP report but I think it also applies to the Ash report.
541. This is a circumstance where regardless of the use of the word ‘may’, I think it is vital that the logic be shown on the current contract program.
542. One stark difference between the parties’ submissions and the expert reports is that it is the Claimant’s position that there is no concurrent delay in EOT10 because of the cause of the truss and thence roofing and facade delays - it says it is the Respondent who has caused them.
543. The Ash report assumes the concurrent delay is the caused by the Claimant.
544. That is unsurprising given the parties dispute the reason for the steel and roof delays.
545. Hence there is a delta between the two assessments which could only be resolved by reference to the Respondents submissions on whether the delay was or was not the Claimant’s delay and then applying them in terms of the contract.
119 Claimant’s reply in Tab J at 2(b) 120 Tab JKS in folder 13 of the response
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546. The Ash report says at various places throughout the document that TPP agree that the internal works are the critical path of the project. I am satisfied that TPP do not agree.
547. The Ash report says a delay must be shown to be on the critical path at the start of the delay, during the delay and at the end of the delay as a matter of its contract interpretation of clause 35.5 para 13(d)(i),
548. I disagree. The clause says the contractor must demonstrate the activities delayed are on the critical path on the construction program.
(a) Firstly, I have already decided that the program referred to in clause 33.2 is the current construction program contemporary to the events;
(b) Secondly, the clause only says they must be on the critical path, not when. If they are not at some earlier time then that will limit the quantum of any EOT, which I think is the case in EOT 10 where the Claimant has admitted it does not become critical until the 10th June 2015. As soon as it becomes critical, it is on the critical path as defined in clause 35.5 para 13(d)(i).
549. My alternative is to accept the TPP report.
550. Whilst the contract at clause 33.2 para 2) uses the word “may’ use the contract program (which I accept is the current construction program) I am satisfied having reviewed the two reports that Mr Heazlewood’s report assesses the activities contemporary to the events in the manner the contract suggests is the manner in which they should be assessed, against that contract program.
551. Both parties refer to the Society of Construction Law Delay and Disruption Protocol. The Ash report refers to a newer consultation draft wherein it deals with delay assessment well after the event. Otherwise the parties do not disagree that the protocol is relevant.
552. The TPP reports use the Time Impact Analysis Method whereas the Ash report is retrospective. I have already approved of the use of a prospective method of assessment. That is particularly so where claims are to be made within 10 business days of the delay first occurring where the delay may last considerably longer than that 10 business day period.
553. I have already said I believe the contract allows for multiple notification of the quantum of a delay up to the date of that notification whether that be under para 3) or para 7) of clause 35.5 and then multiple assessments. Indeed, a contractor might make but one claim which does not give any duration and then provide that duration after completion of the delay, assuming it gave all of the 5 day updates. That is the only circumstance where the EOT claim might be retrospective.
554. One element of Mr Heazlewood’s report with which I don’t agree is his use of the CFMEU RDO’s. There is no contract provision which deals with these. The definition of business day is clear in the contract.
555. I prefer the assessment of Mr Heazlewood, subject to the admission of the 10th June 2015 date with respect to EOT10 and no allowance being made for CFMEU RDO’s.
556. That is not to say that I don’t agree with the assessment in the Ash report on dates; they agree in the most part with the statement of Mr Kaggelis; in many cases I do so and disagree on dates the TPP report uses, it is just that the assessment of Mr Heazlewood is closer to what I believe is the contract process.
557. I deal with the specifics of each EOT below.
558. I have not addressed the alternative delay analysis as those delays are not pressed in this adjudication.
Concurrency
559. I have already decided above that the contract adequately deals with any concurrency at para 5) of clause 35.5.
560. I am satisfied that whilst it is not a requirement of the contract that a claim for EOT should contain an assessment of concurrency, any claim which fails to address it may fail in the ‘reasonable
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opinion’ of the Superintendent121 contemplated in clause 35.5 para 3) as it does not supply the things the Superintendent deems reasonably necessary for him/her to assess the claim.
561. The Ash report says the TPP report fails to address concurrency.
562. In reading the submissions before the Claimant’s reply had arrived, it occurred to me that Mr. Ash was wrong in that assessment.
563. The TPP2 report says it has applied concurrency in a prospective manner and that the Ash report misconstrues the calculation tables A & B in the TPP report. I have reviewed the calculations in each report and they accord with the statements of Mr. Heazlewood in the TPP2 report.
564. I am satisfied the TPP report has taken account of any concurrency.
565. I note that the only one of the delays where concurrency is an issue is EOT10. The TPP2 report says; and I accept; that concurrency has been applied. But that concurrency does not take account of the Respondent’s alleged steel and roof concurrency
566. The Respondent alleges; and the Ash report assumes; that the delay to the steel framing and roofing is a concurrent Claimant caused delay122 which covers the whole of the delay period and hence; it says; the Claimant has no entitlement to an EOT under para 5) of clause 35.5.
567. The Claimant says the whole of the delays are caused by the Respondent.
568. I will deal with that below in my assessment of EOT10 and EOT15.
Mitigation
569. The Ash report also alleges the TPP report fails to properly allow for mitigation.
570. Under clause 35.5 para 8), in determining any reasonable EOT, the Superintendent123 “will have regard to whether the Contractor has taken all reasonable steps to preclude the occurrence of the cause and minimise the consequences of the delay”
571. Hence mitigation does not affect the Claimants right to make a claim, but it may affect the quantum of the EOT should it fail to undertake those step in mitigation.
572. The TPP2 report gives a clear indication of how the Ash report and I must admit, I had initially misconstrued its calculations.
573. I am satisfied the TPP report does allow for mitigation.
Date compliance of notices under clause 35.5
574. The Respondent makes a general compliant that the Claimant has not complied with the strict time regimes for notification and claims under clause 35.5 of the contract.
575. I have assessed each of the claims relevant to this adjudication at Appendix G to this decision.
EOT9 – Inclement weather 30/4/15, 1/5/15, 4/5/15
576. After having submitted a notification of delay on the 1st May 2015, on the 14th May 2015 the Claimant made a notification of and claim for EOT9 for inclement weather on the named dates124.
577. In its assessment dated the 16th July 2015, the Superintendent denied the claim125. Of the six activities identified as delayed in the Claimants claim, the Respondent says the delay to two of them comes after the date when that task should have been completed, it says one is not shown on the program at all, another is not on the critical path and in respect of the other two it says the preceding critical task had yet to be completed and therefore no delay can be claimed against these tasks.
578. The payment schedule understandably does not address EOT9 as the Claimant says it does not lead to compensable delays and thus to a claim for a payment of that compensation.
121 Or the Adjudicator standing in the shoes of the Superintendent 122 One that does not appear in para 4) of clause 35.5 123 Or the Adjudicator standing in the shoes of the Superintendent 124 Application Tab C9.1 125 Application Tab C9.2
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579. In the adjudication response, the Respondent does not address this EOT but in the report of Ash at section 6126 and identified at [42] of the claimant’s reply, Ash says this EOT is valid.
580. The claim seems to comply with clause 35.5 of the contract.
581. Where the only submission by the Respondent is where it supplies the Ash report127 which disagrees with the delayed activities assessment by the Superintendent above and agrees with the Claimant’s position on quantum, I accept EOT9 is valid and that the quantum of it is agreed at 3 days, of which none are compensable.
EOT10 & EOT15 – External Façade Amendments
582. The root cause of EOT10 and EOT15 are the same issue. EOT15 is a continuation of EOT10 from when the EOT10 claim is due under the contract (10 business days after the day the delay first occurs) and the end of that same delay when variation 16 is issued – when the design change is formally made.
583. EOT 10 is for a delay the Claimant says was caused by the Respondent stopping the façade works to enable the Respondent to undertake a redesign which; it says; in turn delayed the project. Its claim for the delay costs is variation 113 and is addressed in the payment schedule under that heading.
584. The Respondent says that whilst it accepts the façade works were delayed, it says the critical path did not run through the façade works128 but through the roofing works which it says were delayed entirely by the Claimant and therefore the façade amendments did not delay the date for PC.
585. The Claimant says it submitted a notification of this delay129 on the 9th February 2015130
586. The Respondent says131:
“In January 2015, TriCare informed MPN that it was considering simplifying the façade of the building. TriCare explained that the original façade of the building was too complex and that it hoped to realise time and construction cost savings if a simpler design was adopted.
Throughout January 2015, TriCare and Grindley considered simplifying the façade design by: (a) deleting the decorative eaves non-structural PFC’s (F1); and (b) deleting the non-structural ‘A’ frame vertical fins. The decorative non-structural eaves PFC’s (F1) and the non-structural ‘A’ frame vertical fins steel work did not contribute to support of either: (c) primary structural elements – the design for which MPN was responsible; or (d) the secondary structural elements, roof trusses and internal wall-supports and external wall framing– the design scope of which Grindley was responsible.”
587. Having read the statement of Roberts, whilst I accept that the main structural elements of the work were MPN’s responsibility, I am not convinced that the simplification would not cause the Claimant more issues where the shop drawings were so advanced. Simply because the change may have simplified the construction does not say that it is not a significant change in terms of changing already existent drawings.
588. The parties agree a meeting was held on the 28th January 2015.132 Minutes of the meeting were sent to the Respondent on the 31st January 2015 and a further meeting was held on the 2nd February 2015133.
589. In those minutes at 4.7.4 the Claimant uses the words “Tricare noted proposed client driven structure and façade design changes which have been underway behind the scenes with definitely
126 At Folder 16 of the adjudication response 127 Which ignores the contractual entitlement issue in its assessment of this quantum 128 Adjudication response at 9.5 129 Which it calls Notification of Delay #8 130 Application Tab C10.1 131 Adjudication response at 9.6 132 Application at [167] and Plascott’s statutory declaration at [19]-[22]. 133 Adjudication response at 9.6 and Plascott’s statutory declaration at [23]-[24].
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be proceeding”
590. The first meeting was the first time it could have been evident to the Claimant that the work may be delayed and therefore triggers para 1) of clause 35.5 of the contract. I don’t think the previous discussions clear the hurdle in para 1) as the Claimant could never know exactly what the Respondent might choose to do until the Respondent made a decision to do so. In other words, I don’t think the word ‘may’ in para 1) extends to the Claimant being required to guess each option the Respondent might take and issuing endless notices on the basis of supposition.
591. The Claimant gave the Superintendent the minutes of the 28th January 2015 meeting on the 31st January 2015 which showed a delay and a likely duration, therefore it complied with the notification requirements of para 1) by doing so ’promptly’.
592. It could also be said the verbal instruction from the Respondent to the Claimant on the 28th January is a notification under para2) such that no para 1) notice was required to be given by the Claimant. I prefer the para 2) route as the design is something the Respondent must provide. In that regard I agree with the Claimant at [175] in the application.
593. The Respondent gave the Claimant formal notification to stop work on that element of the work on the 2nd February 2015.134 I am satisfied this is the delaying event in para 3) of clause 35.5 and the 2nd February is the first occurrence of the delay event.
594. I am also satisfied this is a delay covered by para 4) of clause 35.5 at (b)(i):
“(i) delay caused by:
(A) the Principal; or”
595. The parties accept the email from Plascott, the Principal’s Representative, at 4:58pm on the 2nd February 2015135 is a direction to stop the work in this area; from that time until “we have approved a final set of drawings”.
596. The Claimant gave a notice of delay under para 3) on the 9th February 2015 and therefore complied with the 5 business day notification period in para 3) of clause 35.5 after the delaying event first occurs. It also gave the Superintendent updates on the delay.136
597. The parties disagree on what the words of clause 35.5 mean regarding by when the Claimant must give a claim for an EOT.
598. Clause 35.5 requires at para 3) that such a claim be made within 10 business days after the delay first occurs.
599. The Claim says137 the direction given by the Respondent impacts:
Structural Steel / Roof Trusses Roofing Windows and Façade treatments Strip Scaffold Prototype room & Ensuite Ground Floor Linings onwards First Floor Service Rough-In onwards Commercial Spaces External Works Practical Completion
600. The works on the email from Plascott on the 2nd February 2015138 are relevant.
601. He does not say any particular elements of the work must stop, but that (my emphasis):
134 Para 2 on page 58 of the adjudication response and Plascott’s statutory declaration at [19]-[22]. 135 At Tab C10.9 of the application 136 At [183] in the application & See the heading “The Claimant’s use of the EOT register for Notification” 137 Application Tab 10.2 138 At Tab C10.9 of the application
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“We also confirm that all construction activity that relates directly to theses proposed changes is to cease until we have approved a final set of drawings confirming the design change.”
602. What then directly related to the proposed changes?
603. I am satisfied from the construction program contemporary to that time; which is the “Contract Program Rev 7 – 31st January 2015”139; that the following named tasks did not follow the facade and therefore would not be affected by a delay to it:
Prototype Room & Ensuite Ground Floor Linings onwards First Floor Service Rough-In onwards Commercial Spaces
604. I am satisfied from the construction program contemporary to that time; which is the “Contract Program Rev 7 – 31st January 2015”140; that the following named tasks follow the facade and therefore will be affected by a delay to it:
Strip Scaffold External Works Practical Completion
605. Therefore, as PC is one of those things delayed, the delay is a critical delay.
606. I have already decided above that the roof works may be delayed by the steel work and trusses and that the facade may also be delayed by both, but independently of the roof. Whilst both run into the removal of the scaffolding, because the facade (part of Windows and Façade treatments) is a much longer task it is what is critical. Therefore, I don’t think the instruction given was to cease the roofing works. In that regard I disagree with the Claimant141.
607. The Ash report spends some time on the issue of the steelwork and trusses being already delayed by the Claimant. The meeting minutes142 show two things:
(a) That this work was done well after it was meant to have occurred; and
(b) That it was not stopped by the 2nd February direction, but may have been affected by the direction.
608. Who however was responsible for that delay? Under the contract that is the key element of concurrency disentitlement.
609. Simply because no EOT notification or claim has been made; and I don’t know if one has or has not; or an EOT granted or not; it would seem not; for the steel work and trusses; does not mean that the cause of that delay might not be one named in para 4) of clause 35.5.
610. Where it is named in para 4) then under para 5) of clause 35.5, it will not automatically disentitle the Claimant to an EOT for concurrency with the facade delay.
611. I note that I have already accepted I can have regard for those elements of the supporting information in the claimants reply which relate to the new reasons and have detailed those in Appendix C. I said under the heading “The contents of the claimant’s reply” that I would have regard to the statements to the extent they reply to the new reasons.
612. Those new reasons include the arguments around the critical path the Respondent raises for the first time in its adjudication response. I think that extends to whether the concurrent delays Mr Curtis deals with in his statement143 are on the critical path. Thus his submissions on them144 in his statement are properly made submissions. To be precise I am satisfied that inter alia paragraphs [14]-[114] and documents referenced in those paragraphs, are properly made submissions.
139 At Tab B8 in my copy of the application – incorrectly noted at [109] of the application as at Tab B7 140 At Tab B8 in my copy of the application – incorrectly noted at [109] of the application as at Tab B7 141 At [113] of the application. 142 At [130] in the Ash report 143 Tab AC of Folder 1 of 4 of the claimant’s reply 144 At (a) and (b) of his statement
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613. What Mr Curtis deals with is previous delays to the works on site including the steel work and truss shop drawing processes.
614. I have read his statement and cross-checked it with the other submissions, particularly the statements of Mr Jeanneret-Gris, Mr Abdy and Mr Roberts; to which he refers or which are relevant to what he says; and say:
(a) I am satisfied the Notice of Delay #8 does refer to missing “For construction documentation”;
(b) I am satisfied that the Claimant was not responsible for design;
(c) With regard to (d) to (o) below I refer to the statement of Mr. Curtis at [14]-[20];
(d) That by the 14th January 2015, the Claimant had issued a full set of phases 1 to 3 shop drawings;
(e) That at 3:13pm on the 14th January 2014 Mr Hamrey of the Claimant sent Mr Roberts, Lingard, Sellin and Gentile (the Respondent’s consultants) an email containing RFI 57 requesting further information for shop drawings for Phase 3;
(f) That at 4:59pm on the 16th January 2015, Mr Lingard of the Respondents consultant MPN Consulting sent Mr Hamrey of the Claimant & Mr Roberts, Sellin and Gentile (the Respondent’s consultants) an email attaching the Phase 3 review 1 part 1 document. In that email he says “All of the trusses and quite a number of the facia frames have the diagonal lacing orientation incorrect. It would be in the interests of all if these could be rectified across the project and new drawings for phase 1 and 2 be re-submitted prior to our review”;
(g) That at 4:59pm on the 16th January 2015, Mr Lingard of the Respondents consultant MPN Consulting sent Mr Hamrey of the Claimant& Mr Roberts, Sellin and Gentile (the Respondent’s consultants) an email attaching the Phase 3 review 1 part 2 document. In that email he makes no comments;
(h) That at 5:01pm on the 16th January 2015, Mr Lingard sent Messrs. Hamrey, Roberts, Sellin and Gentile an email, which attaches the Phase 3 drawings review 1 part 3 document. In that email he makes no other comment;
(i) That on the 31st January the Respondent notified the Claimant that the design would be changing;
(j) That on the 2nd February 2015, the facade design was changed which showed changes to the detail of the roof trusses and to the steel work;
(k) That at 8:59am on the 12th February 2015145, Mr Hamrey sent Messrs Roberts, Lingard, Sellin and Gentile an email attaching Revision 1 of the amended shop drawings for Phase 3 based upon the amended design;
(l) That at 8:52am on the 23rd February 2015, Mr Hamrey sent Messrs Roberts, Lingard, Sellin and Gentile an email attaching Revision 2 of the amended shop drawings for Phase 3 based upon the amended design;
(m) That at 4:42pm on the 24th February 2015, Mr Hamrey sent Messrs Roberts, Lingard, Sellin and Gentile an email attaching Revision 3 of the amended shop drawings for Phase 3 based upon the amended design.
(n) That at 9:11am on the 25th February 2015, Mr Lingard sent Messrs Hamrey, Sellin and Gentile an email indicating final approval of shop drawings after amendments by the Respondents consultants was made.
(o) That approved shop drawings were required before fabrication of the structural steel could commence.
(p) That the design which the Claimant was to construct was never completed ‘for construction’ but that the Claimant was forced to construct on the basis hand written notes
145 Tab AC3 of Folder 1 of 4 of the claimant’s reply
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of amendments to plans rather than ‘issued for construction’ drawings. In that respect Mr Jeanneret-Gris agrees at [127] of his chronology;
615. On the program dated the 25th September 2015146, the steel work /roof trusses were to be undertaken between the 18th February 2015 and the 17th March 2015.
616. However, the program most contemporary to the design change is Rev 7 dated the 31st January 2015147. On that program the structural steel /roof trusses were to be done between the 3rd March and the 30th March 2015
617. Notably the program Rev 7 shows a date for PC of the 2nd November 2015 which is compliant with the contract date in the Annexure Part A. In other words, whilst the dates had slipped for the steel works for what the Claimant says are delays caused by the Respondent, the balance of its schedule had compressed.
618. I am satisfied that the Claimant produced its first revision of shop drawings prior to the 14th January 2015 which is a month and a half before the date it was to commence the physical construction of the steel works on the 3rd March 2015, I accept that is reasonable.
619. The Claimant had not revised those shop drawings in the 8 business days from the 16th January 2015 to the 31st January 2015 when the first meeting took place and it was advised of the impending change. Given the discussions the Respondent says were continuing over January, I don’t’ think that is unreasonable. I note the Claimant said it would not change without a direction to do so which it received in the email of the 2nd February 2015.
620. The Claimant then produced amended shop drawings (Rev 1) based upon the amended design it was given late on the 2nd February 2015. In this regard there is clear correspondence in the email from Hamrey to Messrs Roberts, Lingard, Sellin and Gentile at 8:59am on the 12th February 2015 that the Rev 1 drawings are as a result of the design change.148
621. There is no correspondence which refutes that is the cause for the change. I accept that Mr Jeanneret-Gris says the subject was covered in the 2nd February 2015 meeting where the Claimant; and by that time its subcontractor; were told there was no impact. I can’t accept that where new drawings were issued on the basis that there had been changes and no comment was raised on that issue.
622. Equally Mr Jeanneret-Gris at [116](d) of his statement refers to a quote for “installation of light steel framing fascia upstands in lieu of Structural Steel”. That certainly sounds like a change to the structural steel. At [157] he refers to annotated structural steel shop drawings, I font know why the structural steel shop drawings might show changes where there was no change to the structural steel. I repeat that I accept the changes in the façade variation may be minor but they are changes and may affect time not in construction but in getting the documentation to the stage where that more simple construction might occur.
623. The Claimant returned its Rev 1 of the shop drawings on the amended design within 6 business days. I believe that is reasonable.
624. Those drawings went through a further 2 iterations until Rev 3 was approved on the 25th February, that does not strike me as unreasonable.
625. I accept that the Respondent’s consultants have returned the revisions it received in each case, within 2 days which is reasonable.
626. The period between the design change and the approval of the shop drawings based upon the amended design is 2nd Feb to 25th Feb or 17 business days.
627. Where the contemporary date for commencement on site under the program Rev 7 of the 31st January 2015 is the 3rd March 2015, then the fabrication of at least some of the members would have had to occur before that date to allow the work to commence.
628. That would only be after a minimum 17 business day shop drawing approval regime, the Claimant had allowed a month and a half as at the 14th January 2015 which includes that 17-day period and
146 Which I accept the Claimant has conceded is a contract document at [104] of the application 147 At Tab B8 of the application 148 At Tab AC3 of Folder 1 of 4 of the claimant’s reply
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the amount of time it needed to fabricate those first elements of the steel work. This assessment is based upon the actual allowance contemporary with the change which I am satisfied is in line with the contract. Thus if that 17-day period (just over 3 weeks) is taken from the month and a half period leaves an approximately 3-week period from approval of the shop drawings through to commencement on site.
629. Where the approval of shop drawings occurred on the 25th February then one would expect that no construction would occur on site until mid-March which is after the contract date of the 3rd March 2015 a delay of approximately 2 weeks.
630. When one considers that the bulk of the drafting had been done prior to that 17-day period because the design change was not large; then the issue of shop drawings a month and a half before the work was to commence, seems reasonable. That is what the Claimant did some time before the 14th January 2015 where the work was to commence on the 3rd March 2015
631. The inescapable conclusion; based only upon the dates of events shown on documents in the hands of both parties and the notation on the 12th February Hamrey email that the design change was the cause of the change to the structural steel; and disregarding any actual argument made by Mr Curtis in his statement; is that the steel work was delayed by the Respondent amending the design.
632. In the statement of Mr Jeanneret-Gris at [78] he provides a section of the Claimant’s site minutes of the first meeting on the 28th January 2015.
633. At [79] he identifies several things he takes from those minutes. I am of the opinion that none of those things hurts the Claimant’s position. He says ay [82] that it was clear that the Claimant was behind because it had yet to engage an installation sub-contractor. I disagree on the basis of the Rev 7 program it had a month to do so before the 3rd March 2015.
634. But he also leaves out some things that are clearly written there one of which is the potential period of delay for elements of updating plans etc. The periods stated in those minutes for new structural steel shop drawings is 2 weeks, shop drawing reviews and approvals including amendments 2 weeks and fabrication and delivery to site of steel estimated at 3 weeks. That period tallies with what was planned as at 14 January as evidenced in the program, Rev 7 as at the 31st January 2015.
635. Those minutes were sent to the Respondent in an email from Mr. Lowe of the Claimant to Mr Jeanneret-Gris at 3:34pm on the 31st January 2015.
636. They are a contemporary record of proceedings, the only contemporary record of those proceedings and were sent in a most timely fashion to the Superintendent Mr Jeanneret-Gris and to others, including the Principal’s Representative Mr Plascott.
637. He seems to be suggesting some 7 months later, that the notes thereon are not contemporary but for the purposes of pushing the Claimant’s case in this adjudication. He says at the meeting on the 2nd February that all of these things were discussed149, but there so record.
638. I note that he says the Claimant was told there would be no delay does not mean where was no dely.
639. Mr Jeanneret-Gris says at [80] that the notes on the Claimant’s minutes of that meeting are “curiously self-serving and unreliable”.
640. That statement does not help the Respondent’s position and is repeated at [132].
641. If Mr Jeanneret-Gris had issue with those minutes when they were issued; then he has not directed me to any correspondence where he says so, or to a note in following minutes where he raised that the previous minutes were not a true and accurate record of proceedings. Nor has Messrs Plascott or Kaggelis.
642. I prefer the contemporary record.
643. It is unsurprising that the minutes might be self-serving. When they were written, the Claimant; at least on the basis of the statement of Mr Curtis; was by this stage concerned that it was not receiving the support It believed it should get in relation to engineering details and was carefully
149 At [374] of the Jeanneret Gris statement in Folder 2 of the adjudication response
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minuting the conversations in those meetings. It was concerned. I repeat, if the minutes were incorrect then there should also be contemporary records of where that is contested by Mr Jeanneret-Gris.
644. From the submissions made to me I am satisfied that the delay to the structural steel which is at least in part concurrent with the delay to the facade was caused by the Respondent’s direction on the 2nd February 2015 and hence is not subject to the exclusion in para 5) of clause 35.5 as it is a cause named in para 4) of clause 35.5 of the contract.
645. A different situation applies to the Trusses. The change to the trusses is clear on the drawings. The bottom chord is affected. That may not cause a great deal of change to the actual work and I have accepted the Respondent’s expert reports of Messrs Payne and McKerrell. Indeed, I accept the work itself may actually be easier. However, the changes to shop drawings and the time it takes to undertake those changes, would have a time effect.
646. I accept Mr Curtis’ contention that the shop drawings for the amended trusses, when based upon approved engineering drawings, could occur in tandem with those for the steel and that where that was not the case then as one sat upon the other then the truss drawings would have to wait until after the steel drawings were approved and issued.
647. With respect to the accuracy of the information the Respondent was giving the Claimant with which to work, I note the comments by Mr Jeanneret-Gris in his statement at [375] to [377] where he says not all the detail was there but that was ok because it might actually make the work easier. I say the Claimant was contracted to perform work designed by the Respondent, not something else.
648. In that circumstance and where the cause of the delay is the Respondent’s direction on the 2nd February 2015, then it is a cause named in para 4) of clause 35.5 and therefore does not disentitle under the concurrency rule in para 5).
649. I don’t think this is at odds with Mr McKerrell’s statement which relates to the work itself. His statement does not account for the working drawing circumstance.
650. The Claimant says that no delay occurs until the critical path is affected. It says150 the facade activity was still in float when the direction was given to stop work. It says the critical path was not affected on it until the 10th June 2015 and that therefore it was only required to issue the clause 35.5 para 3) claim within 10 business days of the 10th June 2015. It made its claim on the 10th June 2015 which is the day TPP provided the Claimant with its report.
651. Conversely, the Respondent says the delay first occurred when it gave the direction to stop work on that element of the works, which was the 2nd February 2015. Therefore, the Claimant was required to issue its claim by the 12th February 2015. (Note - I think that calculated date is flawed as it is 10 calendar days and not 10 business days after the 2nd February 2015 and I think the date to which the Respondent refers should be the 16th February 2016) Notably the Respondent refers151 to the words on the Notification of Delay #8 given by the Claimant on the 9th February:
“Date Delay Commenced: Monday 2nd February 2015”
652. It says by these words the Claimant accepted the delay commenced at that date.
653. The Claimant addresses this in its claimant’s reply152 wherein it says at [260]-[261]:
“260. Further, Grindley submits that it is wrong of the Respondent to extrapolate a single word from a notice as an excuse to reject an entire EOT claim. On a construction project, contract notices and claims must be produced quickly and much of the content that is contained therein is in an abbreviated form. It is unduly critical of the Respondent to expect a contracts administrator to use overly technical legal and contractual terms such as “delay event first occurring” or “the delay occurring.
261. As set out in the case of Etlis, the Court held that where claims and notices pass between parties engaged under a construction contract a “non-technical” approach should be adopted and
150 At [196] of the application 151 At page 61 of the adjudication response 152 At [256]-[267]
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the primary purpose of any notification will be to provide objective evidence to facilitate contract administration and avoid disputes”
654. In reading the submissions and before reading the claimant’s reply, I had come to a similar preliminary view.
655. Whilst the contract requires strict compliance with the notice provisions of clause 35.5 and what those notices must say, any further information contained therein is not part of that ‘strict compliance’ regime.
656. Notice of Delay #8 (“NOD#8”) is given to comply with clause 35.5 para 3). Such a notice is required to inform the Superintendent that the contractor is or will be delayed, that is all. It is not required to prove that the cause is one in para 4), that is a task for the Superintendent, nor is it required to give a duration, just to notify. Notice of Delay #8 does what it has to do under clause 35.5 para 3) regardless of the words “Date Delay Commenced: Monday 2nd February 2015”.
657. I have reviewed those previously approved para 3) delay notifications at Tab C9 of the application. They are all ‘inclement weather and recovery’ or ‘wet weather and effects’ delay notifications. A wet weather and effects delay is different to a delay which might be notified and then the delay happens sometime later, because in that case the delay event is the rain, which is also the beginning of the occurrence of the delay where everything is stopped on site. Therefore, on those notices the “Date Delay Commenced” was the day of the rain and the day the delaying event first occurs.
658. The format which has been used for NOD #8 and other similar notices shows the Claimant is merely guilty of cutting and pasting a previous notice for use in this notice. The last line of the notice refers to it being an inclement weather and recovery notice, which it clearly is not but it is a delay notice.
659. It has referred me to the decision of Handley JA. in Etlis v New Age Constructions (NSW) Pty Ltd & Anor [2005] NSWCA 165 at paragraphs [37]–[41]:
“37 The oral evidence referred to in paras 8-10 of these reasons fully supports the referee’s findings referred to in para 13. The knowledge that the parties had of the need for hand excavation, and the delay that this would cause did not dispense with the need for the builder to give an appropriate notification in writing to the proprietors.
38 Where to the knowledge of both parties the proprietors already have the information that cl 6 requires the builder to communicate the notification need not set this out at length. In those circumstances the primary purpose of any written notification will be to provide objective evidence to facilitate contract administration and avoid disputes.
39 The relevant question is whether the letter of 16 September would convey to a reasonable recipient, with this background knowledge, that the building work would be delayed because of the cable. There is no difficulty in so construing this letter. A non-technical approach to its construction is supported by Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 774 where Lord Hoffmann said that the clause in issue “does not require the tenant to use any particular form of words”. This can be said of cl 6. At 767-8 Lord Steyn said:
“The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood [them] … the notices must be construed taking into account the relevant objective contextual scene … The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in.”
40 In its Notice of Contention the builder only relied on its letter of 4 September as a compliance with cl 6 but Mr Bailey relied in oral argument on the letter of 16 September (T 57(16), 58(25, 45), 59(21) and 60(40)). No objection was taken that this was outside the Notice of Contention and if it had been the Court would either have allowed an amendment or brushed aside the objection. The Court is entitled to hold that the letter of 16 September was a sufficient compliance with cl 6.
41 The question of whether the letter of 4 September was also a sufficient compliance is not so clear. The words which could notify a recipient that the cable would cause delay are “Extra costs” and “labour”. Both parties knew that the extra costs were for doing the work by hand over a
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longer period. In my opinion this letter construed in the light of the known background information also satisfied cl 6. The letters of 3 and 4 September also evidenced a waiver of any further compliance with cl 6. The proprietor’s request for a quote was a step in contract administration that would normally follow notification of a variation under cl 6. The request dispensed with the notification step and the builder’s reliance on the request was evident. I would therefore reject these grounds of appeal and uphold extension of time claim 5 as allowed by the referee and the Judge.”
660. I note that Etlis153 is entirely consistent with the principles in Multiplex154, to which I have been referred in my assessment of the breadth of the claimant’s reply. Those things the notice of delay must strictly do under clause 35.5 of the contract; it has done. Anything else is a matter of whether the Respondent knew what it was getting and of its contents. Where the end of the notice says a claim shall follow, then I’m satisfied that the Respondent did know what it was getting.
661. I don’t think the Respondents submission; albeit to EOT91155; changes that situation, this contract requires strict compliance as to the giving of the notices, but it uses words such as reasonably, necessary, proper and reasonable to describe the contents at least of the claim which the Superintendent might consider necessary to approve it. Where it does use those words, I think Etlis applies and it will be a matter of whether the Respondent knew what it was getting after the strict compliance conditions on things like timing had been met. If it knew what it was getting, then as long as the notice in whatever format it is given is timely, then I think it has strictly complied.
662. Thus I don’t think the Claimant is approbating and reprobating. It is merely guilty of cutting and pasting from a previous notice. The notification contains more information than it need have and some of that additional information is plainly incorrect. It doesn’t alter that the notice does what it has to do under the contract. Where it calls itself a notice, then I don’t think the Respondent can say it isn’t such a notice.
663. Therefore, I don’t think the words “Date Delay Commenced: Monday 2nd February 2015” have any meaning on that notice. That is merely the day the Claimant became potentially delayed.
664. The Claimant’s argument; which is in essence that the words “after the delay first occurs” in para 3) of clause 35.5; should be read as meaning, after a delay which effects the Date of PC first occurs, has merit. The purpose of the EOT claims in clause 35.5 is to alter the Date for PC if necessary.
665. Both parties tell me that a delay on an individual task may become critical when the float disappears and I concur with that position.
666. In that regard, I agree with the Respondent when it says156:
“Grindley’s argument that the activity was in float until 10 June 2015 effectively concedes that the activity was not on the critical path at any time before 10 June 2015 (critical activities have no float by definition) but it does not follow that the activity was not in delay. A non critical activity may nevertheless be delayed even though the delay to that activity does not delay the Project as a whole.”
667. This determines two things:
(a) Firstly, that the disentitling provision at para 13(d)(i) of clause 35.5 should be read as to say that the delayed activity must be on the critical path after the delay is accounted for. To do otherwise would be to say that a long delay(s) to a task(s) which is/are not on the critical path prior to accounting for them, which moves it (them) onto the critical path will have no effect on the Date for PC. I can’t accept that contention. I repeat the purpose of an EOT claim is to move the Date for PC if necessary. Where a delayed activity moves the critical path then it moves the Date for PC. The contract at para 5) of clause 35.5 contemplates this by using the words “to the extent that”.
(b) Secondly, that I will accept the Claimant’s admission that the façade works were not on
153 [2005] NSWCA 165 154 [2003] NSWSC 1140 155 At 9.9 of the adjudication response 156 On page 61 of the adjudication response
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the critical path prior to the 10th June 2015.
668. I am satisfied that the way the parties have operated the contract is that a formal notification under para 1) of clause 35.5 is for any delay which may affect the progress of the works, all other movement in tasks are captured by the Claimant issuing programs from time to time. From the expert reports and EOT numbering, there are over 100 EOT claims made by Grindley, many of them were concurrent157 and it is only those which effected the critical path that have been pressed in this claim.
669. The Claimant only presses those named at [58] in its application.
670. I accept the Respondent’s position regarding the 10th June 2015 date concession above158.
671. In that circumstance the trigger for the 10 business days under para 3 of clause 35.5 for a delay to have commenced; and thus where the Claimant has an entitlement to make a claim; can only be the date the item moves onto the critical path. The Claimant says that occurred on the 10th June 2015.
672. Therefore, if I am satisfied the façade works do move onto the critical path on the 10th June 2015, then the Claimant’s claim made that day is within the time in para 3) of clause 35.5. If I am not satisfied it was on the critical path as at the 10th June 2015, the claim is out of time and time barred as the Respondent contends.159 Additionally, as I have accepted the concession referred to above to which the Respondent has directed me160, the quantum of the delay shall be affected by that 10th June 2015 cut-off date.
673. The Respondent directs me to the decision of Allanson J. in CMA Assets Pty Ltd Formerly Known as CMA Contracting Pty Ltd -v- John Holland Pty Ltd [No 6] [2015] WASC 217. It doesn’t refer me to a particular passage of that 189-page decision, but I accept that at [373]-[376] his Honour does say that John Holland was entitled to insist on strict compliance with the notice provisions and deny liability for the delay:
“373 Next, CMA argued that, on the proper construction of cl 10.12, failure to give notice does not defeat a claim once and for all. By giving late notice, it may lose an entitlement to costs incurred before the period to which the notice applies, but its entitlement is triggered in relation to costs from then.
374 This construction is inconsistent with the language of cl 10.11 and cl 10.12, which impose obligations on the Subcontractor on the first occurrence of the delay (cl 10.11), as soon as becoming aware of the likelihood of the delay (cl 10.12(b)(i)), and within a specified time after the occurrence of the cause of any delay (cl 10.12(b)(iv)).
375 CMA also argued against a construction that would result in absurdity. There is no doubt that the strict application of cl 10.12 and cl 10.13 is harsh. But I am not satisfied that it is without purpose and absurd, so that an alternative construction must be given, notwithstanding apparently clear words. In approaching cl 10, I believe it is appropriate to have regard to the fact that it is part of a Subcontract, designed to mirror obligations in the Head Contract. The nature of the information required to be given by the Subcontractor may be relevant to John Holland meeting its own obligations to its principal.
376 On CMA's own case, the first notice it gave of its intention to apply for an extension of time due to the movement of the shiploader was on 21 February 2007. That was well outside the time prescribed in cl 10.11 and cl 10.12. In my opinion, John Holland were entitled to insist on the strict contractual position and deny liability for the delay.”
674. I don’t think anything I’ve said above, or in Appendix F, questions the position in CMA Assets161 and I accept that the Respondent has a right to insist on strict compliance with the notice provisions in the contract. However, I also accept that where the contract requires strict compliance with the specifics of the time within which a notice can be given and what information
157 With each other as opposed to with any caused by the Claimant 158 On page 61 of the adjudication response 159 On page 60 of the adjudication response 160 On page 61 of the adjudication response 161 [2015] WASC 217
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must be contained in that notices, that Etlis162 applies as to whether the recipient has been adequately informed by the notice with regard to what it is receiving and what is contained therein.
675. None of what I have said above questions the need for the Claimant to give its notices strictly within the timeframes in the contract. My assessment at Appendix F is clear that the Claimant’s entitlement only lies within the timeframes in the contract and specifically not where the contract says there is no entitlement if the timeframes are not complied with; as is the case here at para 3) and para 13(d)(ii) of clause 35.5.
676. The Claimant says its Notice of Delay #8 is a claim for an extension of time163 and refers me to the decision of Pagone J. in BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2007] VSC 409 at [72]-[74]:
“72 The letter dated 2 August 2002 has, on its second page the heading “Delay”. VicUrban contends that the letter “while mentioning” delay “did not seek an extension of time”. I agree with that contention to the extent that the letter of 2 August 2002 does not use the word “seek”, but a fair reading of the letter is that an extension of time for delay was being claimed. What follows in the text under the heading “Delay” began by noting that the location of the material was “on the critical path for the project and will cause delay and disruption to the project”. It was noted that acceleration to alleviate the delay was difficult and that it was then estimated that “this delay” would be a maximum of four weeks but longer if significant areas of wet base were encountered. A reference to the material being on “the critical path” is a clear reference, as between these parties, to there being an impact on the date for practical completion. The letter of 29 November 2002 to the Superintendent was asserting that the situation encountered could not adequately be recompensed through the schedule rates, that is, that it was being maintained as a latent conditions claim and, in that context, that any “associated delays due” to this additional work were being recorded. The letter of 5 March 2003 from BMD to the Superintendent also refers to “delay and disruption costs”. I think that this correspondence should fairly be read as including a claim for delay.
73 VicUrban contends that it was not until 7 May 2003 that the phrase “extension of time” is mentioned in respect of either the Southern Stockpile or the quarry floor claims by which stage, as the argument goes, the conditions in clause 35.5 for making a written claim for an extension of time within 28 days of the delay occurring had not been met. I am not able to accept this contention. It seems to me that it was clear from the letter dated 2 August 2002 that an extension of time was being claimed. Neither clause 35.5 nor any other clause in the contract requires any particular form of words by which to convey to a reasonable reader that a written claim for an extension of time was being made. In my view a reasonable reader reading the letter dated 2 August 2002 would have been on notice that an extension of time for practical completion was being sought having regard to the then notification that latent conditions had been encountered on “the critical path” and that a delay was anticipated of some four weeks if not longer. Such a construction of the contract, and of the documents which are sought to be relied upon pursuant to the terms of the contract, is consistent with what a reasonable person would understand a document to mean having regard to the person and the object of the transaction: see Pacific Carriers Ltd v BNP Paribas [23] Toll (FGCR) Pty Ltd v Alphapharm Pty Ltd. [24]
74 Notification of a latent condition in the Northern Stockpile area was given by Mr Waterson on 4 June 2003. That letter, like that dated 2 August 2002, is fairly to be read as a claim for extension of time for delay. The same is true of the other two latent conditions claimed for, respectively, the Avenue Stockpile and the Eastern Stockpile. The Avenue Stockpile latent condition claim was notified by letter dated 17 June 2003 and the Eastern Stockpile was notified by letter dated 17 November 2003. Each of the letters of notification dated 2 August 2002, 4 June 2003 and 17 June 2003 are in broadly similar terms. The letter dated 17 November 2003 is in different form, but all four of the letters of notification are relevantly to the same effect. Each in my view put the Superintendent on notice of delay and is fairly to be read as a request for extension of time for practical completion, albeit that it was not then possible to determine how much delay would be encountered or involved in the work.”
162 [2005] NSWCA 165 163 At [205] in the application
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677. The Respondent; albeit in reply to EOT 91164 says that “the clause in BMD referred to by Grindley, was not prescriptive in requiring strict compliance in the manner and within the times stipulated”
678. I see no conflict between the decisions in Etlis165, BMD166, Multiplex167 or CMA168. They are all complimentary.
679. In BMD a letter was sent which covered all of the requirements of both a notification and a claim under clause 35 and the court said; as the form of the notice was not stipulated; then the letter was both notification and claim. The Respondent says this is a similar situation to Etlis.
680. I can’t accept the Respondent’s position in relation to the notification in para3) of clause 35.5. The only strict requirement of para 3) in regard to a delay notification is that within 5 business days of the delaying event first occurring a notice is given. There is no format for the notice – format is not anything with which the Claimant must strictly comply, only timing.
681. I have reviewed clause 35.5 in relation to the claim referred to in para 3) of clause 35.5 and the situation is the same. There is no strict requirement as to the format of the claim.
682. Yes, the Claimant must strictly comply with the requirement for giving the claim within 10 business days of day the delay first occurs, which I have already decided is the day the task becomes critical.
683. Yes, the clause says the Claimant must strictly set out the facts on which the claim is based
684. However, everything else noted in para 1) to para 13) of clause 35.5 of the contract is something which the Superintendent must do as part of its assessment.
685. The Claimant can’t possibly give a claim which strictly complies with the Superintendent’s opinion (refer para 3)) on whether the delay event is caused by something in para 4), or on what the Superintendent’s reasonable opinion is, of what will allow him or her to assess the claim.
686. Those things are conditions placed on the Superintendent in assessing whether the Claimant has a right to an EOT, not as to whether the Claimants claim is valid. If it were the case, the Claimant could not issue a claim until the Superintendent held those beliefs. I don’t accept that could be the intention of the contract.
687. The requirement that, with that claim, or as soon as practicable thereafter, the Claimant must give the Superintendent written notice of the number of days’ extension claimed, isn’t a strict requirement of the claim, as it can be done later. If it is done later then para 6) merely says the assessment of the claim won’t happen until it does. There is no strict compliance issue there or more accurately any disentitling provision.
688. Therefore, the only strict compliance required; is that the claim is made in time; and contains facts upon which the claim is based.
689. Whether the facts are enough, is a matter for the Superintendent in his or her assessment.
690. The format is not a strict compliance issue, therefore Etlis169 and BMD170 will apply as to whether I am satisfied that the Respondent knew what it was getting.
691. I am satisfied that the Respondent knew what it was getting in the claim of the 10th June 2015 and I am also satisfied that the claim contains facts upon which the claim is based.
692. Therefore, the only strict compliance issue is whether it was made within time.
693. The Claimant says171 that NOD#8 also passes the test to be a claim under clause 35.5.
694. I disagree.
164 At 9.9 of the adjudication response 165 [2005] NSWCA 165 166 [2007] VSC 409 167 [2003] NSWSC 1140 168 [2015] WASC 217 169 [2005] NSWCA 165 170 [2007] VSC 409 171 Application at [205]
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695. That notice is clearly noted on its face as a “NOTIFICATION OF DELAY” and says in its last sentence “an EOT and Delay claim will be submitted”.
696. I think where the Claimant specifically says that the claim will come later, then it is the Claimant who is saying it isn’t a claim. Had those words not been there then I think under the authority from Etlis, it could be considered both notification and claim. I also distinguish the circumstance in BMD put forward by the Claimant.
697. In this case, the Respondent could not have been aware it was receiving a claim in NOD#8 where the Claimant specifically says the claim will come later. The Notice given on the 9th February 2015 was not a valid EOT claim under clause 35.5 of the contract.
698. However, as I have accepted the Claimant’s argument that the day the delay to the façade first occurs is when it moves out of float and onto the critical path, then whether NOD#8 is a claim, is a moot point.
699. I have already decided that if I am satisfied the façade works do move onto the critical path on the 10th June 2015, then the Claimant’s claim made that day is within the time in para 3) of clause 35.5. If I am not satisfied it was on the critical path as at the 10th June 2015, the claim made that day is out of time and time barred as the Respondent contends.
700. Had the Claimant not made submissions that the façade works only became critical on the 10th June 2015, I could have dealt with that whole claim. However, then it would have failed because the EOT claim was only made on the 10th June 2015, which would have been time barred. I have not accepted the NOD#8 is a claim, it is only a notice under papa 3) of clause 35.5 of the contract.
701. Therefore, it is entirely because the Claimant says the delay only became critical on the 10th June 2015 that its claim is not time barred. That same admission seriously limits the quantum I might agree with and use in my valuation, however it is also one which allows its EOT15 extension of delay claim.
702. I have already said above under the heading “Delay Expert Reports” that I prefer the analysis of TPP with the rider that I will have regard for the admission of the Claimant172 that the EOT10 delay did not become critical until the 10th June 2015.
703. Therefore, as the claim was made on Wednesday the 10th June 2015 which is within 10 business days of the date the delay first occurred, the EOT claim made for EOT10 is made within time under clause 35.5.
704. Therefore, regardless of any of the entitling provisions in the contract and entirely on the Claimants own submission, the quantum of EOT10, as at the 10th June 2015, is zero days (the 10th June 2015 claim date minus the 10th June 2015 first occurrence date).
705. However, EOT15 is an extension of EOT10, hence I will consider the contract provisions in respect of that claim.
706. EOT 15 submissions are made under the heading Variation 114 in the payment schedule.
707. I am satisfied the Claimant has given all updates as required by para 6) of clause 35.5.
708. I am satisfied the cause is a direction from the Principal’s Representative on the 2nd February 2015, which is a cause in para 4) of clause 35.5 and am satisfied the initial notice was given under para 3).
709. I am satisfied the claim was made in time and contained adequate supporting information under para 3) in order for me173 to asses it.
710. I am satisfied the contractor gave the Superintendent each of the required 5 business day updates under para 6) of clause 35.5.
711. I am satisfied the Claimant has taken all necessary steps in mitigation and therefore it is not disentitled by para 13(d)(iii) of clause 35.5.
712. I am satisfied that the Claimant has given all notices strictly in accordance with the contract and is
172 At [196] of the application 173 Standing in the shoes of the Superintendent
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therefore not disentitled by para 13(d)(ii) of clause 35.5.
713. I am satisfied the delayed activity is on the critical path between the 10th June 2015 and the 23rd June 2015 and therefore the claim is not disentitled by para 13(d)(i) of clause 35.5.
714. It is uncontroversial that this façade delay ended on Tuesday the 23rd June 2015.
715. I am of the opinion that the Claimant was delayed.
716. There is no concurrent activity which is caused by something not named in para 4 of clause 35.5.
717. I am satisfied the Claimant has taken all reasonable steps to mitigate the consequences of the delay in the circumstance where it was caused by the Respondent and hence it was unable to mitigate the occurrence of it.
718. The claim made for EOT15 is for 8 business days and is complete. There are 9 business days between the 10th June 2015 and the 23rd June 2015. I am satisfied the quantum is 9 business days.
719. Where only 8 have been claimed; I assume because of the wet weather claim EOT14 for the 17th June 2016), then it is my assessment that the reasonable quantum which should have been allowed for the EOT 15 claim is 8 business days.
EOT14 – Inclement weather 17/6/15
720. After having submitted a notification of delay #12 on the 25th June 2015, then later that same day the Claimant made a notification of and claim for EOT14 for inclement weather on the named dates174.
721. The Superintendent issued its assessment across 4 of emails from Mr Jeanneret-Gris to Mr Hamrey at on the 28th July 2015175 which the Claimant says is well outside the 15 business day timeframe in clause 35.5.
722. I agree it is outside that timeframe. The assessment should have been made by the 16th July 2015. However, there is no outcome under the contract for the Superintendent failing to assess a claim within that 15 business day period under para 7) of clause 35.5 and specifically time is not set at large by such failure.
723. The payment schedule understandably does not address EOT14 as the Claimant says it does not lead to compensable delays and thus to a claim for a payment of that compensation.
724. In the adjudication response in the email at 9:16am, the Superintendent says in respect to this claim and that for EOT10 and it would seem EOT11-16:
“” The contract critical path activities from which All EOT’s are assessed, granted or denied have not been completed in accordance with the original Bound Contract program” and no amount of Grindley Constructions revisssions (sic) or changes to your on site contruction (sic) recipes, can change that.
As of last Friday 24th July 2015 Grindley Constructions is (Give or take a couple of Days) 16 weeks behind the contract programme (sic) crirail (sic) path activities of on “structural Steel/Roof Trusses” and “Roofing” remains incomplete.
I have base (sic) my assessments on the Bound “Grindley Constructions” contract programme (sic) and the Contract Conditions.”
725. Not only does the Superintendent seek to move away from the September contract the Respondent says is the actual contract and use the tender program bound into the contract document, he fails to use the current construction contract as required by the contract as I have discussed earlier. Under EOT 10 & 15 above I have disagreed with his 16-week assertion.
726. However regardless of all of that, in the report of Ash at section 6176, Ash says this EOT is valid and agrees with the Claimants quantum of it.
727. The Respondent has begged me to prefer the assessment of Mr Ash over that of Mr Jeanneret-Gris.
174 Application Tab C14.1 175At Tab C14.2 of the application 176 At Folder 16 of the adjudication response
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728. I shall.
729. However, the contract requires and the Respondent asserts; that the claim must strictly comply with clause 35.5 of the contract. It does not177.
730. I am satisfied that the claim event occurred on the 17th June 2016 and the notice under para 3) of clause 35.5 was given in NOD#12 on the 25th June 2015, 6 business days later which is after the strict 5 business day period for that notice ends.
731. The notice if out of time and therefore the claim is time barred.
EOT16 – Inclement Weather 29/6/15
732. For the same reasons given in my assessment of EOT14 above, where I have been asked by the Respondent to prefer Mr Ash’s assessment over that of Mr Jeanneret-Gris, I accept this EOT is valid and the quantum of it is agreed at 1 day of which none are compensable.
733. In this case the claim does strictly comply with clause 35.5 of the contract and is not time barred.
EOT70 - Retaining Wall Finishes
734. This is the first of the EOT claims where the Claimant relies on its regularly issuing the EOT register as compliant with all of the notification and claiming timelines under clause 35.5 of the contract.
735. I have already decided178 that I am satisfied that the issue of the EOT Register by the Claimant to the Superintendent is an acceptable method of complying with clause 35.5 of the contract.
736. All of the notices strictly comply with the timeframes in the contract.179
737. The claimed cause of delay is a site instruction 10537 issued on the 23rd September 2015 which in turn led to Variation GC075 issued on the 22nd October 2015180. I am satisfied a variation is a cause under para 4(b)(ii) of clause 35.5 and hence para 4) does not disentitle the claim.
738. Variation 75 is for an amount of only $3,272.50 which is not disputed and has been paid. Its claim for delay costs is called variation 115.
739. The Respondent addresses other issues it has with the EOT 70 claim at [280] in its payment schedule. Specifically:
(e) I don’t think any of those things need be agreed by the Superintended or the Principal for reasons I have already given under the heading “The role of the construction program under the contract” and therefore I also disagree with [280] of the payment schedule;
(f) I am dealing with these in this assessment; and
(g) Standing in the shoes of the Superintendent I shall make an assessment of whether that threshold has been crossed.
740. With respect to [282] of the payment schedule I will deal with clause 35.5 here and other provisions in the assessment of any associated variations and costs. I have already decided under the heading “The Claimant’s use of the NOD and EOT Register for Notification” that the EOT register may be used for the notification and claiming processes under clause 35.5.
741. Para 13(d)(iii) of clause 35.5 provides that the Claimant shall have taken all proper and reasonable steps in its control to preclude the occurrence of and to minimise the effect of the delay.
742. I am satisfied that the Respondent ordered the variation and therefore the occurrence of it is out of the hands of the Claimant. The Claimant seeks 4 business days EOT on the basis that it took it 10 business days to complete the work.
743. On the basis of the value of variation 75, I find that 10-day period very difficult to believe. It equates to an hourly cost including materials of approximately $33/hour.
177 Refer Appendix G to this decision 178 Under the heading “The Claimant’s use of the NOD and EOT Register for Notification” 179 Refer Appendix G to this decision 180 Application at Tab C70.7
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744. It says the work delayed the remaining hardscaping and landscaping activities on the critical path.
745. There is a paucity of material provided in support of this EOT. The Claimant provides correspondence which shows it took over a month to get from the point where the Respondent had ordered the work to when the variation was approved. It provides EOT update register showing the matter was open for that period.
746. I have already accepted that the critical path does pass through the hardscaping and landscaping after the removal of the scaffolding in the absence of critical path analysis; in terms of the contract; from the Respondent. In this respect I note that the Hardscaping and landscaping is shown in red on the RTM example program dated the 2nd October 2015 issued with the notice to accelerate181.
747. I cannot accept that all of that critical path hardscaping and landscaping activity came to a standstill for 10 business days simply because the Respondent issued a variation for $3,272.50 worth of waterproofing done to some retaining walls.
748. The Claimant needed to provide far more solid evidence that was the case.
749. The Claimant has failed to make its case for an EOT regardless of any clause 35.5 strict compliance issues.
750. I will not aloe the EOT claim.
EOT81 - Inclement Weather 28/10/15
751. In its EOT Register issued to the Respondent on the 3rd November 2015 the Claimant notified the Respondent of this delay. I note that the dates shown were in September rather than October which was fixed in later versions of the register, but am satisfied the Respondent was informed by it given the date of the wet weather.
752. I have already decided182 that I am satisfied that the issue of the EOT Register is an acceptable method of complying with clause 35.5 of the contract.
753. All of the notices strictly comply with the timeframes in the contract.183
754. I have already decided that EOT’s under this contract are to be assessed against the current construction program. As at the 3rd November 2015 that program was the acceleration program of the 21st October 2015184. The Respondent particularly in the statement of Mr Jeanneret-Gris does not accept the Acceleration Program. However, under the terms of the contract the basis of the EOT assessment is the current program issued by the Claimant which is not altered from a previous contract program without reasonable cause. The Acceleration program was issued after the Mitigation Program as a result of the Respondent’s notice to show cause. The reason for an acceptable change to the program under para 7) of clause 33.2 of the contract is that it was asked to submit a new program under para 6) of clause 33.2. I believe that is a reasonable cause to alter the program.
755. The EOT register identifies 3 activities which it says are affected. Windows and Facades, Hardscapes and Services Fit-off.
756. The payment schedule and the adjudication response submissions do not address EOT 81 specifically but say that all claims must strictly comply with clause 35.5.
757. Wet weather is a cause specifically names in para 4)(a)(ii) of clause 35.5.
758. Wet Weather is out of the hands of the Claimant and there is no indication it did not mitigate the effects hence para 13(d)(iii) doesn’t disentitle.
759. All notices have been given hence para 13(d)(ii) doesn’t disentitle.
760. In the 21st October 2015 Acceleration Program, on the 28th October 2015, of the three activities claimed as affected, the hardscape is not on the critical path, the façade is on the critical path and
181 And attached to the statement of Mr. Abdy at CMA2. 182 Under the heading “The Claimant’s use of the NOD and EOT Register for Notification” 183 Refer Appendix G to this decision 184 Appendix D of the Ash Report
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the services (lighting) is shown as critical.
761. This EOT has only been addressed in passing by the Respondent at 4.4 of the adjudication response by way of an updated EOT claim in April 2016. However, I have already accepted that the EOT was supplied in the EOT Register of the 3rd November 2016. That EOT register contains all of the words at the top I have already accepted mean that it can be used to comply with clause 35.5 of the contract.
762. I disagree with the Respondent that the Claimant has revised its claim. It seeks 1 day in the 3rd November EOT register.
763. As two of the tasks are on the critical path, then para 13(d)(i) doesn’t disentitle.
764. I hold the reasonable opinion that the rain would have delayed the facade critical task.
765. There is not more than one event; of which I am aware; otherwise delaying the project which is not named in para 4) and hence para 5) doesn’t disentitle.
766. Therefore, I am satisfied that the claim complies with clause 35.5 of the contract.
767. I am satisfied that the reasonable quantum of the delay is 1 business day.
EOT82 - Inclement Weather 29/10/15
768. The notification of this claim is precisely the same as for EOT81. I am satisfied from the information put before me that the claim complies with clause 35.5 of the contract
769. The delayed event is the same and I am satisfied the rain occurred and delayed a critical activity.
770. I am satisfied that nothing in clause 35.5 disentitles the claim.
771. I am satisfied that the reasonable quantum of the claim is 1 business day.
EOT83 - Inclement Weather 9/11/15
772. In its EOT Register issued to the Respondent on the 10th November 2015 the Claimant notified the Respondent of this delay.
773. I have already decided185 that I am satisfied that the issue of the EOT Register is an acceptable method of complying with clause 35.5 of the contract.
774. All of the notices strictly comply with the timeframes in the contract.186
775. I have already decided that EOT’s under this contract are to be assessed against the current construction program. As at the 10th November 2015 that program was the acceleration program of the 21st October 2015187. The Respondent particularly in the statement of Mr Jeanneret-Gris does not accept the Acceleration Program. However, under the terms of the contract the basis of the EOT assessment is the current program issued by the Claimant which is not altered from a previous contract program without reasonable cause. The Acceleration program was issued after the Mitigation Program as a result of the Respondent’s notice to show cause. The reason for an acceptable change to the program under para 7) of clause 33.2 of the contract is that it was asked to submit a new program under para 6) of clause 33.2. I believe that is a reasonable cause to alter the program.
776. The EOT Register identifies 3 activities which it says are affected by this wet weather event. Windows and Facades, Hardscapes and Services Fit-off.
777. The payment schedule and the adjudication response submissions do not address EOT 83 specifically but say that all claims must strictly comply with clause 35.5.
778. Wet weather is a cause specifically names in para 4)(a)(ii) of clause 35.5.
779. Wet Weather is out of the hands of the Claimant and there is no indication it did not mitigate the effects hence para 13(d)(iii) doesn’t disentitle.
780. All notices have been given hence para 13(d)(ii) doesn’t disentitle. 185 Under the heading “The Claimant’s use of the NOD and EOT Register for Notification” 186 Refer Appendix G to this decision 187 Appendix D of the Ash Report
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781. In the 21st October 2015 Acceleration Program on the 9th November 2015, of the three activities claimed as affected, the hardscape became critical on the 5th November 2015, the façade is on the critical path and the services (lighting) is shown as critical.
782. This EOT has only been addressed in passing by the Respondent at 4.4 of the adjudication response by way of an updated EOT claim in April 2016. However, I have already accepted that the EOT was supplied in the EOT Register of the 3rd November 2016. That EOT register contains all of the words at the top I have already accepted mean that it can be used to comply with clause 35.5 of the contract.
783. I disagree with the Respondent that the Claimant has revised its claim. It seeks 1 day in the 10th November EOT register.
784. As all of the tasks are on the critical path, then para 13(d)(i) doesn’t disentitle.
785. I hold the reasonable opinion that the rain would have delayed the facade critical task.
786. There is not more than one event; of which I am aware; otherwise delaying the project which is not named in para 4) and hence para 5) doesn’t disentitle.
787. Therefore, I am satisfied that the claim complies with clause 35.5 of the contract.
788. I am satisfied that the reasonable quantum of the delay is 1 business day.
EOT91 - Landscaping
789. This is another of the EOT claims where the Claimant relies on its regularly issuing the EOT register as compliant with all of the notification and claiming timelines under clause 35.5 of the contract.
790. I have already decided188 that I am satisfied that the issue of the EOT Register by the Claimant to the Superintendent is an acceptable method of complying with clause 35.5 of the contract.
791. This EOT is addressed under submissions to Variation 116 in the payment schedule.
792. All of the notices strictly comply with the timeframes in the contract.189
793. However, in this case those notices are only compliant where both the delaying event is a delaying event under the contract and then if the delay actually occurred.
794. Unlike EOT70 where a Site Instruction was issued to the Claimant. In this case no Site Instruction was issued.
795. On the EOT register; the Claimant says it received a verbal instruction on site.
796. The evidence the Claimant provides190 does not support that contention.
797. At 3:21pm on the 7th December 2015, Mr Swinnerton of the Claimant sent an email to the Superintendent in which he says:
798. “as discussed on site with John there are some areas to the landscaping we require some direction.
799. As per our meeting on site for the back area (south elevation) direction of planting arrangements and the addition of some soft grass along block wall.””
800. I am satisfied that is not a direction, it is a request for a direction.
801. It was followed on the 14th December 2015 by RFI225191 which says; inter alia; (my emphasis):
802. “Can you please confirm if the following is to proceed and if it is to proceed provide updated documents so that the works can be priced and a variation (deduction/addition) can be submitted accordingly.”
803. Again this is not an RFI subsequent to an instruction, it is an RFI requesting that an instruction be issued if the work is to proceed.
188 Under the heading “The Claimant’s use of the NOD and EOT Register for Notification” 189 Refer Appendix G to this decision 190 Application Tab C91 191 Application Tab C91.4
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804. The Respondent did not reply with an instruction.
805. Regardless the Claimant then issued a variation No. 87 for review and approval on the 8th January 2016 which included a new timber retaining wall and some planting. On the 12th January and the 27th January the Claimant was asked to seek and did seek price clarification on the retaining wall which the Superintendent subsequently did not include in the variation issued.
806. The Claimant may have wanted a variation, indeed it may even have been concerned about the time implications of having to undertake such a variation, but up until the date the Superintendent issued variation 87 on the 28th January 2016192, the Claimant was under no obligation to do anything as no such instruction had been issued.
807. It follows that as there was no obligation to do anything before the 28th January 2016 and it was only on the 28th January the Claimant became obliged to undertake the variation works, then there was no delaying event which might have occurred prior to the 28th January 2016.
808. As at the time of the Claimant’s alleged notice of delay on the 15th December 2015 and the EOT registers issued subsequent to it, there was no contractual obligation for the Claimant to do anything.
809. Under the contract the delaying event is the issue of the Variation 87 on the 28th January 2016.
810. In this regard I disagree with Mr Heazlewood at 7.15 of the TPP report. He assumes he can insert these tasks into the landscaping on the basis that all other landscaping works would stop and not recommence until the additional 3 days’ work was undertaken. I can see no basis upon which that conclusion might be reached.
811. In this case, I agree with the Respondent in its assessment at 9.9 of the adjudication response193. The Respondent says it is unaware of what landscaping works might have been left to do at that point. If there were indeed none, then clearly there could have been no delay as they would not have been critical.
812. Therefore, there is no entitlement to make an EOT claim.
EOT103 - Water Main Limiting Valve
813. This is another of the EOT claims where the Claimant relies on its regularly issuing the EOT register as compliant with all of the notification and claiming timelines under clause 35.5 of the contract.
814. I don’t think the submission at [376] in the payment schedule applies here as I have already decided194 that I am satisfied that the issue of the EOT Register by the Claimant to the Superintendent is an acceptable method of complying with clause 35.5 of the contract.
815. All of the notices strictly comply with the timeframes in the contract.195
816. This matter is dealt with in the payment schedule under Variation 117. The Respondents reasons therein are limited to compliance.
817. The claim relates to an alleged EOT arising from variation 99 where the Respondent directed the Claimant to change the water main limiting valve from what was already installed to that required by the Brisbane City Council.
818. Variation 99 is not contested and has been paid.
819. An EOT for 6 business days is sought is for the time to undertake those variation works.
820. The Ash report196 agrees the critical path would be delayed by the 6 days claimed if the works did indeed take 6 days to complete.
821. I am satisfied the claim complies strictly with clause 35.5 of the contract.
192 Application Tab C91.1 193 In the second last paragraph of page 75 194 Under the heading “The Claimant’s use of the NOD and EOT Register for Notification” 195 Refer Appendix G to this decision 196 Section 10 at [182]
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822. The variation on the basis of the Cargo Plumbing quote only includes labour of 1 man for 8 hours.
823. However,
(a) RFI 236 was issued on the 11th February 2016. That RFI was issued after the BCC inspector had already said the limiting valve in place was not acceptable; and
(b) the matter was not resolved, approval given and GC099 issued until the 22nd February 2016, a gap of 6 business days and
(c) assuming that Cargo Plumbing could action the matter with in say 2 business days, I am satisfied that a reasonable quantum is in the order of 9-10 business days.
(d) Where the claim is for 6 business days, and
(e) Mr Ash agrees on the entitlement
Then I accept the claim is reasonable.
EOT104 - Payment of BCC Plumbing Fees
824. Variation 100 for the payment of these fees is not contested and has been paid.
825. Mr Ash’s report whilst agreeing that the delay in EOT103 was 6 business days, also raises no question over the TPP report claim that the plumbing certificate would take 3 business days to obtain after the work was done after 3 days of work.
826. Whilst Ash claims the two delays in EOT103 and EOT104 are concurrent, that isn’t the case, he assumes 6 days for both, where the 3 days to obtain the certificate is included in that 6-day period.
827. I have shown above in EOT103, that it would take 9-10 days between when the BCC inspector first raised the issue; that is when BCC would not sign-off without the 500kPa limiting valve being in place; to the time when that valve was in place.
828. The 3 business days Mr Ash speaks of in his assessment is how long it would take to pay the BCC fees and get the certificate after showing the 500kPa limiting valve was in place.
829. Where the claim is for only one business day I accept that is reasonable.
830. I am also satisfied the notification and claim comply with clause 35.5 of the contract.
The Date for Practical Completion
831. The original date for practical completion in the contract is the 2nd November 2015.
832. In my assessment of the EOT’s the Claimant seeks for the purposes of valuation in this adjudication I am satisfied the Date for PC should have been reasonably extended as follows:
833. I am satisfied that a reasonable assessment of the Date for Practical Completion based upon the EOT claims made under the contract and pressed in this adjudication is the 2nd December 2015.
Reasonable EOT Date for PC
(Business Days)
At Execution 2/11/2015
After EOT Claim
9 3 5/11/2012
10 0 5/11/2015
14 0 5/11/2015
15 8 17/11/2015
16 1 18/11/2015
70 0 18/11/2015
81 1 19/11/2015
82 1 20/11/2015
83 1 23/11/2015
91 0 23/11/2015
103 6 1/12/2015
104 1 2/12/2015
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Delay Costs
834. Variations 113 to 118 are claims for delay costs.
835. The parties again the operation of the contract.
836. I deal with the specifics of those disputes below and then the individual claims.
No grant of an EOT by the Superintendent
837. The Respondent says no entitlement under the contract arises unless the Superintendent issues an EOT.
838. The Claimant refers me to the decision of McMurdo J. in Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58 at [27]:
“[27] But under cl 36, delay costs are payable only “where the Contractor has been granted an extension of time”. So could delay costs be said to have been “then due to the Contractor” when there had been no extension of the date for practical completion? The Principal argued they could not, relying simply on the terms of cl 36 and cl 42.1. There has been no extension and the adjudicator said that he could not grant it. The Contractor argued, as the adjudicator held, that delay costs could be included in a progress claim notwithstanding the absence of a granted extension of time, if the Contractor was then entitled to that extension;” and
Parts of [31]-[32]:
“[31] …Whether the Superintendent here had refused the extensions of time or simply postponed his consideration of them, for this Clause 36 point the relevant fact is that the extensions had not been granted.”
“[32] … The determination of this Clause 36 point ultimately depends upon the scope of an adjudicator’s powers, and in particular his power to “calculate” the amount of a progress payment. Consistently with the above authorities, an adjudicator is able to make his own calculations and is not bound by those of the Superintendent. If the Contractor has an entitlement to an extension of time, the grant of which would entitle it to delay costs, then the Contractor could be said to have an entitlement to a progress payment in an amount, according to s 13, “calculated” under the contract so as to give effect to that entitlement” …
” The adjudicator did not err on this point. Whether the Superintendent had refused or postponed consideration of the extensions of time, the adjudicator was entitled to include delay costs if the Contractor was entitled to those extensions”.
839. I have read the Hervey Bay197 in full to be sure that the quoted passages are quoted in context and am satisfied they are. Hervey Bay is directly on point and I shall follow it.
840. I think that decision takes an even greater significance where at clause 23 of this contract, the Superintendent “has no duty to act impartially” and “may only exercise its discretion for the benefit of the Principal.”
841. This has a significant effect on the requirement for clause 46.1 notice compliance, which is one of the things the Respondent seeks to use to disentitle the delay claims.
842. I think that the Claimant gave contingent clause 46.1 notices in some cases is evidence of the failure of this clause where there is a negative or no assessment by the Superintendent. The timing of a clause 46.1 notice becomes extremely problematic. Hervey Bay solves that issue.
Delay costs claimed under clause 40 as variations
843. In the EOT claims for EOT10, EOT 15, EOT70, EOT91, EOT103 and EOT104, the Claimant seeks delay costs or damages under clause 40 as variations 113, 114, 115, 116, 117 and 118. respectively.
844. After my assessment of EOT’s above, delay costs or damages may be payable for EOT15, EOT103 and EOT104.
197 [2008] QSC 58
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845. The Respondent complains that claims for these costs should not be made as variations under clause 40 and even in the case where the claims are for EOT’s as a result of additional time required to undertake variations198, then under clause 40.1 the contractor must give all notices under clause 35.5.
846. I agree with the Respondent.
847. Further clause 40 only applies to clause 35.5 to the extent that para 10) of clause 35.5 says; subject to the requirements of clauses 23 and 40; the Claimant may be entitled to payment of any additional costs in complying with a direction under para 9) of clause 35.5 but only where the Claimant was otherwise entitled to claim an EOT. A direction under para 9) of clause 35.5 is one to accelerate, given by the Superintendent, in the circumstance where the Superintendent forms the view the Claimant has failed to maintain progress in accordance with clause 33.
848. I will deal with acceleration costs under the assessment of Variation 112 below, suffice to say here none of the delay cost claims are acceleration costs claims.
849. Clause 40 also applies to clause 35.9 where under certain circumstances a direction given under that clause may be valued under clause 40.5. This is also to do with acceleration and hence not relevant to the delay cost claims.
850. Otherwise delay costs are dealt with under clause 36 of the contract.
851. Clause 36 only refers to clause 40 by way of a reference in the amended element in the Annexure Part B by way of saying there shall be no entitlement to delay costs except as provided for in clauses 36 and 40.
852. Clause 40.6 refers to compliance with the notice provisions under clauses 40 and 35.5 before there is an entitlement to be paid for the consequence of a variation.
853. The Delay Claims which remain alive after my assessment of the EOT claims are:
854. Of the three live EOT claims, there are two which have precipitated by a variation.
855. They are V99 as a precursor to EOT103 and V100 as a precursor to EOT104.
856. Where V99 and V100 have both been paid by the Respondent and therefore it has adjusted the contract sum, where that is the case then I am satisfied the notice provisions of clause 40 must have been complied with. Otherwise the Respondent would not have paid for them.
857. I have already decided above that the notice provisions in clause 35.5 have been complied with.
858. So there is no issue in regard to clause 40.6. As the variations have been paid by the Respondent then the it must have been content that the notices under clause 40.6 had been complied with and clause 35.5 has been complied with.
198 Referred to in the first paragraph of 1.56 of the Annexure Part B
9 -$ -$
10 281,178.00$ -$
14 -$ -$
15 41,656.00$ 41,656.00$
16 -$ -$
70 14,788.00$ -$
81 -$ -$
82 -$ -$
83 -$ -$
91 29,578.00$ -$
103 22,182.00$ 22,182.00$
104 3,697.00$ 3,697.00$
Delay Claims
made
Delay Claims
live after EOT
assessment
EOT CLAIM
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859. I think the Claimant is incorrect in treating the three live delay costs claims as variations, however as long as all of those things in clause 36 have been complied with then they may be payable as delay costs.
The applicability of Clause 46.1 of the contract
860. The parties disagree on whether clause 46.1 notice provisions apply to claims made for delay costs.
861. The Respondent says199 that the claims for delay costs may only be made where the Claimant has complied with the notice provisions of clause 46.1 (as amended by the Annexure Part B):
“46.1 Contractor’s Prescribed Notice The Principal shall not be liable upon any Claim by the Contractor in connection with the Contract, or the work under the Contract unless within 28 days after the first day upon which the Contractor could reasonably have been aware of the breach; the Contractor has given to the Superintendent the prescribed notice. The Principal shall not be liable upon any other Claim by the Contractor for any extra cost or expense in respect of or arising out of any direction or approval by the Superintendent unless within 42 days after the first day upon which the Contractor could reasonably have been aware of the entitlement to make the Claim, the Contractor has given to the Superintendent the prescribed notice. The prescribed notice is a notice in writing which includes particulars of all of the following — (a) the breach, act, omission, direction, approval or circumstances on which the Claim is or will be based; (b) the provision of the Contract or other basis for the Claim or proposed Claim; and (c) the quantum or likely quantum of the Claim. This Clause 46.1 shall not have any application to— (i) any Claim for payment to the Contractor of an amount or amounts forming part of the Contract Sum or any part thereof; (ii) any Claim for payment for a variation directed by the Superintendent or to be made pursuant to Clause 12.3; (iii) any Claim for an extension of time for Practical Completion; or (iv) the provisions of Clause 46.2.”
862. The first paragraph of 46.1 does not apply as each of the remnant delay claims to EOT’s 15, 103 and 104 are the subject of variations or directions.
863. The second paragraph refers to these things, however it is subject to the last section 46.1 (i) to (iv).
864. The claim V114 for EOT15 is a claim arising from an EOT for delay costs. The Respondent says that the exclusion in 46.1(iii) is only for an EOT and does not apply to a claim for delay costs as a result of that EOT.
865. The Claimant says the clause is reliant on a trigger of the Superintendent having issued an EOT and that as the trigger had never been activated as the EOT claims had either been rejected or not assessed at all.
866. I have already decided under the heading “No grant of an EOT by the Superintendent” above that Hervey Bay200 is authority for me to make an assessment of these costs independent of any assessment by the Superintendent.
867. I am satisfied that where:
(a) there is no contractual outcome under clause 35.5 for the Superintendent failing to make an assessment; and
(b) where Hervey Bay says I may do so; and
(c) where the notification period reliant on the Superintendent making such a determination that there is an entitlement to an EOT and actually issuing that EOT as a result of the assessment starts upon that assessment; and
199 In sections 6.12 and 10 of its response 200 [2008] QSC 58
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(d) where Hervey Bay says I may make that assessment;
…then it follows that Hervey Bay is also authority for there being no notification period where there is a dispute over whether the EOT should or should not have been issued. I think Hervey Bay at [32] does just that. The trigger for such a notice is activated until there is an EOT issued, where one isn’t I may still value the claim.
868. I am satisfied that where there is no EOT, Hervey Bay is authority that I may assess the claim independent of any compliance with clause 46.1.
869. For completeness; even if that weren’t the case then I think clause 46.1 doesn’t apply to V117 (EOT 103) and V118 (EOT104) because I am satisfied that the express words of 46.1(ii) says it applies to “any Claim for payment for a variation directed by the Superintendent”. It isn’t limited to the cost of undertaking the variation. I think it includes any other contractual right to payment as a result of doing the variation including delay costs. That applies equally to EOT15 as whilst by the 10th June 2015, the variation for the façade changes GC013201 had not been issued, it was subsequently issued after the EOT15 claim was made.
Valuation under Clause 36
870. Clause 36 (as amended by the Annexure Part B) of the contract relevantly provides for the payment of delay costs:
“36 DELAY OR DISRUPTION COSTS
Subject to clause 35.10, where the Contractor has been granted an extension of time under Clause 35.5 for any delay caused by any of the events referred to in Clause 35.5 (b)(i), the Principal shall pay to the Contractor such extra costs as are necessarily incurred by the Contractor by reason of the delay.
Nothing in Clause 36 shall —
(a) oblige the Principal to pay extra costs for delay or disruption which have already been included in the value of a variation or any other payment under the Contract; or
(b) limit the Principal’s liability for damages for breach of contract.
The Contractor agrees that under no circumstances will payment for such delays or disruptions exceed the rate agreed upon in the Contract. Except as provided for in this clause 36 or under Clause 40, the Contractor will not be entitled to, and releases and discharges the Principal from any Claim for delay or disruption which the Contractor may have encountered, irrespective of the cause of the delay or the disruption”
871. The parties disagree on the interpretation of the sentences
(a) “the Principal shall pay to the Contractor such extra costs as are necessarily incurred by the Contractor by reason of the delay.”
(b) “The Contractor agrees that under no circumstances will payment for such delays or disruptions exceed the rate agreed upon in the Contract.”
… and the interaction between the two.
872. The Claimant says the rates in the Annexure Part A item 32 are agreed rates and that it has a right to delay costs across both clauses 36 and 40, at those agreed rates.
873. The Respondent says they are maximum rates and only payable under clause 36 where the Claimant can prove the costs are necessarily incurred by reason of the delay up to a maximum of those amounts.
874. With respect to the two sentences above;
(a) This sentence says the entitlement to be paid is for costs incurred.
I accept that could mean that the agreed rate is as full compensation for the cost incurred, or that the entitlement is only for the actual cost incurred.
201 Application at Tab C10.11
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The crux of this sentence however is found in the reference to clause 35.5(b)(i).
That clause is only for delays caused by the Principal or the Superintendent; whether occurring before, on or after the Date for Practical Completion.
In the case of each of V117 and V118 those delays are as a result of a variation.
A variation is named as a cause in clause 35.5(b)(ii) not 35.5(b)(i), therefore the cost requirement doesn’t apply to the EOT 103 and EOT104 claims.
The EOT15 also relates to a variation where the claim was made on the 30th June 2015 which is 5 business days after variation GC016 was issued on the 23rd June 2015; and thus the first paragraph of clause 36 does not apply.
In this regard I have read the statutory declarations of Jeanneret-Gris and Plascott and in particular the comments Plascott has to make on the statutory declaration of Macauley the CEO of the Claimant. However, they are of no assistance where the rates apply.
(b) This sentence could mean that the entitlement is for cost incurred up to a maximum of the rates at item 32, or that the fixed rates are the sum total of the Claimant’s entitlement and the Claimant shall not be paid more than those rates.
875. I accept that clause 2 of the standard AS2124 contract has been amended in the Annexure Part B to include the words:
“Nothing in this Contract may be interpreted against a party solely on the ground that the party put forward the Contract or a relevant part of it.”
876. This circumstance is one where I have to decide between two diametrically opposed vies of what was agreed in these words and I shall abide by the amendment in clause 2 above.
877. Where parties enter into unamended AS contracts, because the interpretation of the clauses have been considered by the courts over a long period of time, they have specific and well understood meaning.
878. When the parties executed this contract, the changes they made to the standard AS2124 contract are found at the Annexure Part B. Clause 36 was amended as shown therein. There must be a reason for that change and for the contract containing two distinct rates at item 32 of the Annexure Part A.
879. Clearly the parties disagree on that meaning.
880. The Respondents position is that no costs are payable because no detail of costs has been provided by the Claimant.202 Conversely the Claimant says it is under no obligation to supply them as the rates are already agreed.
881. The Respondent cannot be correct in relation to the variations still live after my assessment of EOT’s above as each relates to a variation issued before the claims were made and thus the first paragraph of clause 36 did not apply.
882. Had the amendment not been made to AS2124, no rates provided in item 32 and the reference to the event not been confined to clause 35.5(b)(i), then I would have accepted that cost must be the basis of the assessment.
883. It is not.
884. There must be a reason for two rates in item 32 and not only because there was an acceptance that the costs incurred by the Claimant would be different if the scaffold was, or was not in place.
885. Those rates are very specific numbers and thus I think they must have been pre-estimates of the costs at the time of tender.
886. The issue I have here, is that where I have already said an EOT is reasonable, then there must be a cost for being on site for a longer period.
202 I note that I have found in Appendix C that elements of the claimant’s reply are not properly made submissions.
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887. I accept the Respondents position203 that these costs cannot already have been included in a variation.
888. In the case of the variations for the Façade V45, the Limiting Valve V99 and the BCC Plumbing fees V100, I accept they are not included.
889. Those variation claims are for the work or fee payment involved in performing the variation. For example, the variation for the Limiting Valve is only a marked up amount for the supply and installation of the valve.
890. Therefore, the costs are not zero as the Respondent contends.
891. Thus I am left with two alternatives, the Claimant’s alternative that the costs are the rates in item 32 or the Respondent contention that they are zero.
892. They are not zero and therefore I will accept the Claimant’s position.
893. The rates in item 32 shall apply.
894. I have dealt with clause 40 above. It does not entitle a claim for delay costs, it merely says that they may be payable where a variation is directed and an EOT is allowed but it leaves all of that to clauses 35 and 36.
895. I have already dealt with them both.
Variation 113 – EOT 10 External Façade delay costs
896. I have decided above that the quantum of this claim is zero days hence regardless of any disentitlements the value will be zero.
TO COLLECTION $0.00
Variation 114 – EOT 15 External Façade delay costs
897. I have decided under the heading “EOT10 & EOT15 – External Façade Amendments” that I am satisfied the Claimant is due an extension of time of 8 business days.
898. I am satisfied that the delay was caused by an event referred to in Clause 35.5 (b)(ii),
899. I have also determined that it should be paid at the relevant rate in item 32.
900. I am satisfied that the rate applicable at the time of the façade delay is one where the scaffold was in place.
901. Therefore, the quantum of the delay costs is 8 days at $5,207.00 per day, or a total of $41,656.00.
TO COLLECTION $41,656.00
Variation 115 – EOT 70 Retaining Wall Finishes delay costs
902. The Claimant has failed to make its case for the EOT and therefore regardless of any disentitling issues, there are no delay costs payable.
TO COLLECTION $0.00
Variation 116 – EOT 91 Landscaping delay costs
903. I have decided above that there is no entitlement to make this claim.
TO COLLECTION $0.00
Variation 117 – EOT 103 Water Main Limiting Valve delay costs
904. I have decided above the Claimant is due an EOT of 6 business days.
905. I am satisfied that the delay was caused by an event referred to in Clause 35.5 (b)(ii),
906. I have also determined that it should be paid at the relevant rate in item 32.
203 Last sentence of 10.2 in the adjudication response
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907. I am satisfied that the rate applicable at the time of the Water Main Limiting Valve delay is one where the scaffold had been removed.
908. Therefore, the quantum of the delay costs is 8 days at $3,697.00 per day, or a total of $22,182.00.
TO COLLECTION $22,182.00
Variation 118 – EOT 104 Payment of BCC Plumbing Fee delay costs
909. I have decided above the Claimant is due an EOT of 1 business day.
910. I am satisfied that the delay was caused by an event referred to in Clause 35.5 (b)(ii),
911. I have also determined that it should be paid at the relevant rate in item 32.
912. I am satisfied that the rate applicable at the time of the Payment of BCC Plumbing Fee Delay is one where the scaffold had been removed.
913. Therefore, the quantum of the delay costs is 1 days at $3,697.00 per day, or a total of $3,697.00.
TO COLLECTION $3,697.00
Acceleration Costs
914. Acceleration is dealt with under the contract under para 9) and para 10) of clause 35.5204 (my emphasis):
“9) The Contractor will not be entitled to any payment arising from the gaining of an extension of time over and above any payment to which he is entitled under the Contract for the event that has caused such extension of time. If the Superintendent forms the view that the Contractor has not maintained progress in accordance with the current Construction Program (as defined in Clause 33 of this Contract) the Superintendent may direct the Contractor to increase its labour force, equipment, hours of work, shifts or make other special expediting arrangements to bring the work back on schedule and maintain progress in accordance with the current Construction Program.
10) The Contractor will not be entitled to any additional payment as a result of complying with this direction unless the Contractor would otherwise have been entitled to claim an extension of time for Practical Completion in which case, subject to the requirements of Clauses 23 and 40, to the extent that the direction causes the Contractor to incur more or less cost than otherwise would have been incurred, the difference will be valued under Clause 40.5".
…and under clause 35.9:
“35.9 Acceleration to Achieve Practical Completion
Notwithstanding the provisions of Clause 35.6, the Principal or the Superintendent may give the Contractor a direction in writing to carry out such measures as may be required to overcome the effects and consequences of a delay referred to in Clause 35.5 of the Contract or otherwise.
The Contractor must:
(a) comply with a direction given under this Clause; and
(b) in consultation with the Principal, take positive steps including, without limitation, rescheduling, reprogramming, expediting and adjusting activities, sequences and the carrying out of the work under the Contract to ensure that the effects and consequences of the delay are overcome or minimised and that Practical Completion is achieved by the due Date for Practical Completion.
The Contractor is entitled to be paid the costs of complying with a direction issued under this Clause 35.9 only where the event or circumstance causing the delay is otherwise beyond the reasonable control of the Contractor. The Contractor's costs of complying with a direction issued under this Clause 35.9 will be valued under Clause 40.5."
915. The Claimant says205 in its application that it seeks these costs under clause 35.9 and alternatively under clause 35.5.
204 I have added paragraph numbers in bold; e.g. 4) for ease of identification:
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916. The direction from the Superintendent attached to the email from Mr Jeanneret-Gris to Mr Curtis at 4:16pm on the 15th October 2015206, refers to a direction under clauses 35.5 and 35.9.
917. I am satisfied the reference to clause 23 in para 10) of clause 35.5 does not seem to have any effect here and the reference to clause 40 is in relation to the valuation under clause 35.9.
918. That notice says on the last page207 that there will no additional payment “because the direction to accelerate has arisen from matters:
1 for which the Contractor is not entitled to any EOT’s (other than those set out above which have been accepted by the Superintendent) and the Date for Practical Completion remains 2 November 2015; and
2 that are not beyond the reasonable control of the Contractor and; in fact; were events or circumstances:
a. caused by the Contractor;
b. that were concurrent with non-claimable causes of delay under the Contract; and / or
c. that were non-claimable causes of delay under the Contract.”
919. That same day Superintendent subsequently issued a notice under clause 33.2 of the contract for the Claimant to issue an updated construction program.
920. I have already dealt with which construction program should be used under the heading “The role of the construction program under the contract”.
921. I agree with the Claimant that the Respondent’s description of what is the critical path at 4(b)(ii) and (ii) in that clause 33.2 notice, is incorrect. A previous task need not be complete before a following task is commenced. There may be a start to start delayed; or a finish to start early relationship where both tasks are on the critical path but overlap.
922. I am satisfied the Superintendent has issued a direction under clause 33 referred to in para 9) of clause 35.5.
923. I am satisfied the Claimant must have been entitled to otherwise claim an extension of time for Practical Completion as that will determine both the clause 35.5 para 10) issue and clause 35.9 issue of the “event or circumstance causing the delay is otherwise beyond the reasonable control of the Contractor “;
924. I am satisfied that if that is the case then, subject to the requirements of Clauses 23 and 40, and to the extent that the direction causes the Claimant to incur more or less cost than otherwise would have been incurred, the difference will be valued under clause 40.5.
925. I have already dealt with the Respondent’s jurisdictional submissions on the claims before the reference date under the heading “Jurisdictional Issue - Claims made after Reference Date”.
Variation 112 – Acceleration Costs
926. Variation 112 is a claim for acceleration costs of $266,127.00 the Claimant alleges it incurred in complying with the notices of the 15th October 2015. The costs were transmitted by the Claimant to the Respondent on the 29th April 2016208.
927. The Respondent denies the claim in its entirety.
928. Was the Claimant otherwise entitled to claim an EOT?
929. I am satisfied it was.
930. I have already decided that the Claimant was entitled to claim EOTs for various reasons, which were in excess of the 10 business day ‘float’ in the contract, as follows:
(a) EOT 9 for the period 30th April 2015 to 4th May 2015 (3 business days);
205 At [558] 206 At Tab E1 in the application 207 Page 4 of 4 208 Refer Tab E4 of the application
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(b) EOT15 for the period 10th June 2015 to the 23rd June 2015 (8 business days);
(c) EOT 16 for the 29th June 2015 (1 business day);
(d) EOT 81 for the 28th October 2015 (1 business day);
(e) EOT 82 for the 29th October 2015 (1 business day);
(f) EOT 83 for the 23rd November 2015 (1 business day);
(g) EOT103 for the period 11th February 2016 to the 22nd February 2016 (6 business days); and
(h) EOT104 for the 11th March 2016 (1 business day).
931. Of these EOT’s, EOT9, EOT15 and EOT16 were before the 15th October 2015; the date of the direction to accelerate. They amount to an EOT as at that date of 12 business days.
932. In its notice to accelerate under clauses under clauses 35.5 and 35.9, the Respondent says in regard to the alleged delay by the Claimant:
“The Contractor did not complete roofing activities until on or about 24 August 2015 (despite the original Construction Program – noting that the Date for Practical Completion has not been adjusted – re3uiring completion of those tasks by 1 April 2015).”
933. Putting aside any question over which construction program should be used; the Respondents contention is that the named activity upon which its notice was based, was delayed from the 1st April 2015 to the 24th August 2015, a delay209 of exactly 100 business days.
934. Therefore; based entirely upon the parties’ submissions; during the period of the alleged delay, I have decided that 12 out of 100 business days or 12% of that delay was caused by the Respondent and the 88% balance is an amalgam of delays caused by the Respondent where the Claimant has missed claim dates to be entitled to be able to claim an EOT, or a delay for which the Claimant is culpable.
935. In passing I will say that the Respondent says at [6] of its acceleration notice, that the works are 14 weeks 4 days behind the current construction program and 20 weeks behind the original program. 14 weeks 4 days approximates 74 business days and 20 weeks approximate 100 business days.
936. My assessment of EOT’s above is that the Claimant was due 32 business days EOT of which 12 of those business days were due before the date of the acceleration notice, 10 after the notice and 10 were subsumed by the float in the program, which means that if the Claimant not mitigated the 10 days’ float in the original program it would be 78 business days behind. That there is a close similarity between the 74 and 78 business days, does not escape me.
937. That a large element of the delay seems to remain the responsibility of the Claimant is also unsurprising after reading Mr Kaggelis’ statement.
938. I can’t find a reference in the adjudication response to the costs the Claimant provides at Tab’s E4 and E5 of the application. I have read the submissions and done an electronic search of the documents provided by the Respondent.
939. The essence of the Respondent’s position is found in the statement of Jeanneret-Gris.
940. He says at [324] that he never accepted that Tricare were responsible for any of the delays, but that those delays were entirely the Claimants issue.
941. I have already decided in the EOT sections above that I don’t accept that position.
942. Mr Jeanneret-Gris also says he does not accept the Claimant accelerated its works at all.
943. In this regard I note Mr Plascott’s assessment of the Claimant’s dwindling labour force210 over the period of the purported acceleration and say, I am not convinced that a contractor who is accelerating its work toward PC would necessarily have an increase in labour force over that period where tasks were being completed and thus the workforce required to undertake them was
209 By my calculation, using the contract definition of business day and Government published public holiday calendars. 210 In the diagram at [52] in his statement
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diminishing. I expect that it might have a slower rate of reduction initially but then as these purportedly delayed tasks were completed more quickly; the level of labour would still drop off.
944. Did the Claimant actually accelerate?
945. The TPP report says the Claimant accelerated by 9 working days. I have already disapproved of its use of the CFMEU calendar as it forms no part of the contract.
946. The Claimant responded to both the show cause notice under clauses 35.5 and 35.9; and the notice to provide a program under clause 33.2.
947. If the Date for PC in the Rev 16 program at Annexure B to the Claimant’s response to the acceleration notice211, is the 22nd February 2016.
948. I have already decided that 10 days EOT should be applied after that notice and then the date becomes the 26th February 2016.
949. I note here that I believe the EOT for EOT103 should have been claimed for 3 to 4 days more than that claimed212, which would push the date out to approximately the 2nd March 2016.
950. That the 2nd March 2016 is almost precisely the date of PC the Claimant alleges, of the 3rd March 2016, does not escape me. Where the Claimant says213 its works reached PC on the 25th February 2016 but that it received the Certificate of Classification on the 3rd March, supports a level of acceleration.
951. However, that is a rough calculation based upon submissions, which assists me in some ways; but it doesn’t assist in determining whether the Claimant did in fact accelerate. On balance given the TPP report and that my assessment of actual EOT’s leans towards the Claimant6s position214, I shall accept the TPP statement that it did actually accelerate.
952. Therefore, I am satisfied that the delay or at least a 12% element of it is not a culpable delay of the Claimant.
953. Notably clause 35.9 does not have the same concurrency issues as does clause 35.5. Therefore, I am satisfied that 12% of the delay is beyond the reasonable control of the Claimant in terms of the last paragraph of clause 35.9.
954. The Respondent takes issue with the Claimant issuing the costs on the 29th April 2016, some 6 ½ months after the acceleration direction was given.
955. I can’t see; nor have I been directed to; where there is a requirement under the contract that the Claimant had to meet a time compliance regime for the issue of those costs.
956. The only contract requirement is that the claim be valued under clause 40.5, not that it had to meet the notice requirements of clause 40.1.
957. I have already decided that simply because it is called a variation (V112) doesn’t mean it is a variation. It is clearly marked as an acceleration claim. An acceleration claim is not dealt with by clause 40, otherwise than clause 40.5.
958. The Respondent says215 the Claimant’s entitlement to costs arises only where it has complied with the notification provisions under the contract. I can’t see where ant notification provisions other than those with which I have already decided the Claimant has complied in my assessment of EOT’s and Delay Costs.
959. Where I cannot see where questions are asked of the Claimants costs at Tab E4 & E5 of the application, I shall accept them.
960. The Claimant says the valuation should be under 40.5(c) where 40.5 (a) and (b) don’t apply.
961. Where the actual costs are not questioned, then on balance I accept they are reasonable.
211 At Tab B10 of the application 212 See under the heading “EOT103 - Water Main Limiting Valve” above 213 At [619] in the application 214 Taking into account that it failed to prove its entitlement for the full façade delay only due to a technical failure in notice provisions, not because the delay did not exist. 215 At 12.2 of the response
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962. Where the acceleration quantum is 9 business days and the EOT’s it was attempting to overcome216 in the EOT’s up to the date of the notice; excluding the 10 business day float; are 12 business days, then I accept that the acceleration costs are payable as claimed.
TO COLLECTION $266,127.00
Contested Variations
963. Having had regard for uncontested variations above this leaves variations 16, 45, 47 and112 to 118 in contest in this adjudication.
964. As discussed above 113 to 118 related to delay costs and 112 to acceleration costs. I have already dealt with those, which leave variations 16, 45 and 47 in contest here.
965. The process for variations in the standard AS2124 contract has been amended by 1.58 to 1.59.
Variation 16 – External Façade amendments
966. The entitlement to this variation was not contested. It was only the value which is in contest.
967. The Respondent says in its adjudication response that it now contests the entitlement on the basis of a failure of the Claimant to abide by the notice requirements in the contract.
968. The payment schedule refers to an assessment by Mr Plascott attached to an email he sends at 1:01pm on the 23rd June 2016.
969. Mr Plascott says in that email217 that it is all approved with the exception of the scaffold.
970. I don’t have the final approval, however clearly the Respondent has paid part of it and as such am satisfied in doing so it was satisfied that the notice provisions in the contract had been followed.
971. The Respondent also alleges218;
(a) The Claimant was not due $54,000 of the total amount because the work was more simple. I say whilst it is able to propose new reasons in its response, where it has paid the amount, I don’t accept the argument.
(b) the Claimant has been overpaid $44,400 as a result of the issue of Site Instruction 1052 by Mr Jeanneret-Gris. I say again, whilst it is able to propose new reasons in its response, where it has paid the amount, I don’t accept the argument.
972. The Claimant made a claim for an amount of $85,410.05 and the Respondent has scheduled an amount of 35,167.00.
973. The assessment of a lesser amount in the payment schedule is on the basis that the scaffold element was withheld subject to the approval of EOT15.
974. The new reasons in the adjudication response go far further than merely being new reasons for withholding the amount the Respondent proposes to withhold in the payment schedule; they seek to withhold a greater amount. I am satisfied that whilst the Act allows for new reasons in these complex claims, the Act does not allow for a change to the scheduled amount only for further support for the withholding of the amount proposed in the payment schedule.
975. I have said above that EOT15 should be approved as part of the valuation exercise under the Act219.
976. The Claimant says220 that if it is awarded delay costs for EOT10 and EOT15 then it withdraws this claim.
977. It was not awarded delays costs for EOT10 and therefore as it uses the word ‘EOT 10 and EOT 15’, I accept that this claim is not withdrawn.
978. It follows therefore that I also approve this variation in full.
216 Which are by definition events out of the reasonable control of the Claimant 217 At Tab F16.2 of the application 218 At 11.1 of the adjudication response 219 Under the heading “EOT10 & EOT15 – External Façade Amendments” 220 At [332] of the claimant’s reply
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TO COLLECTION $85,410.05
Variation 45 – Additional FC in lieu of metal cladding
979. This variation is a claim for additional FC cladding in the areas where the Façade amendments were made. The entitlement to this variation is not contested. It is the value which is in contest.
980. The Claimant seeks an amount of $90,666.40221, the Respondent has scheduled an amount of $73,918.90.
981. The payment schedule refers to an assessment by Mr Plascott sent to the Claimant by email at 11:55am on the 10th September 2015222.
982. By email at 7:27am on the 24th September 2015, Mr Plascott gives an assessment; albeit being headed “Confirmation Variation 045 assessment”; to which the Claimant’s Hamrey replied at 10:08am on the 30th September 2015223.
983. Mr Plascott’s statement does not seem to address variation 45.
984. The element of the variation not approved by the Respondent is the additional scaffold time for the EOT15 delay.
985. Unlike variation 16, the Claimant makes no concession regarding whether it is paid for the EOT10 & EOT15. It seeks this amount regardless.
986. Mr Jeanneret-Gris says224 the additional time was not for the faced variation, but as a result of the Claimant taking longer than it should to undertake the roofing activities.
987. I agree with the Claimant’s point at [338] in its claimant’s reply. The Respondent says the roofing activities were complete before the dates for which the scaffold is claimed.
988. Where that is the case I shall allow the claim in full.
TO COLLECTION $90,666.40
Variation 47 – Boundary earthworks and retaining walls
989. The Claimant seeks an amount of $31,872.07 for this variation and in its payment schedule the Respondent has assessed a lesser amount of $25,172.24.
990. In the payment schedule the Respondent refers to the assessment of Mr Plascott attached to an email at 9:28am on the 8th December 2015.
991. In the adjudication response the Respondent says Mr Jeanneret-Gris says this work is within the original scope of the contract.
992. I have reviewed Mr Jeanneret-Gris statement225 he says the works are part of the original scope and are shown226 on the section of what he calls a contract drawing attached to his statement.
993. The Claimant could have replied to this element of the response, but made only submissions in its claimant’s reply which are not properly made submissions.
994. Hence I will accept what Mr Jeanneret-Gris submission and shall deny the additional element of the claim.
TO COLLECTION $25,172.24
Backcharges / Setoffs / Deductions
995. The Respondent has rights to set-off various things under the contract.
996. Its principal right is found in clause 42.10:
221 Albeit that its original variation was for slightly more 222 At Tab F45.2 of the application. 223 At Tab F45.3 of the application 224 At [267] of his statement 225 At [206]-213] 226 At AJG-4 in Folder 9 of the adjudication response.
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“42.10 Set Offs by the Principal
The Principal may deduct from moneys due to the Contractor any money due from the Contractor to the Principal otherwise than under the Contract and if those moneys are insufficient, the Principal may, subject to Clause 5.5, have recourse to retention moneys and, if they are insufficient, then to security under the Contract.”
997. It also has a right to Liquidated Damages under clauses 35.6 and 35.7:
“35.6 Liquidated Damages for Delay in Reaching Practical Completion
If the Contractor fails to reach Practical Completion by the Date for Practical Completion, the Contractor shall be indebted to the Principal for liquidated damages at the rate stated in the Annexure for every day after the Date for Practical Completion to and including the Date of Practical Completion or the date that the Contract is terminated under Clause 44, whichever first occurs.
If after the Contractor has paid or the Principal has deducted liquidated damages, the time for Practical Completion is extended, the Principal shall forthwith repay to the Contractor any liquidated damages paid or deducted in respect of the period up to and including the new Date for Practical Completion
35.7 Limit on Liquidated Damages
The Contractor’s liability under Clause 35.6 is limited to the amount stated in the Annexure.”
998. The Annexure Part A at item 28 states that the rate of Liquidated Damages under clause 35.6 is $5,000 per day and at item 30 in relation to clause 35.7 that there is no limit on those liquidated damages.
999. I have already decided that the contract provides as clause 40.5 for a method of valuing variations. I am further satisfied that the process in clause 40.5 allows for the valuation of negative variations as well as those which add to the contract price. Thus the provisions in s14(1)(b)(iv) and s14(2)(b)(iv) of the Act do not apply. I therefore disagree that any right arises under the Act in this case as pressed by the Respondent in the response227.
1000. Unlike the elements of the payment claim for which the Claimant has the onus to prove; not only its entitlement to the amount claimed; but also to the quantum of it, in the circumstance where the Respondent seeks to make deduction from the amount otherwise payable to the Claimant, then the onus lies with the Respondent to prove both its entitlement to do so and the quantum of the proposed deduction.
The Date of Practical Completion
1001. Notices required for the rectification of defects, whether Liquidated Damages are applicable and thence whether security might be converted are all dependent on the Date of PC.
1002. The Superintendent issued a Certificate of PC on the 15th April 2016 certifying that the Date of PC is the 13th April 2016.
1003. The Claimant says it’s works reached PC on the 25th February 2016.
1004. That claim is made on the basis that Practical Completion on the project was reached on the 3rd March 2016 being the date that the Claimant received the Certificate of Classification for the building.
1005. The Claimant asserts in this adjudication that it reached Practical Completion on the 3rd March 2016.
1006. Whilst there are significant submissions in relation to defects and when those defects were existent, having read those submissions, this issue is; unlike many others in this adjudication; relatively easily dealt with.
1007. The Respondent stands firm by the Superintendent’s assessment of the Date of PC but its submissions at 13.5 of the response doesn’t otherwise address the facts. I accept it gave all those 8
227 At [477]-[478] of the adjudication response
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notices, however the Claimant is correct in saying the Respondents view of PC is flawed.
1008. Both Mr Jeanneret-Gris and Mr Kaggelis say that the work had to be effectively defect free before the residents moved in. If the Respondent had wanted that to be the case, then the alterations it made228 in the Annexure Part B to the standard AS2124 as to the definition of, and Conditions Precedent to Practical Completion, had to go much further than those it made.
1009. If the Respondent had wanted the project defects free at the date of PC, then the contract it wrote should have identified that such that a contractor might add, what I suspect would be a significant, risk premium to allow for that circumstance. The definition in the contract at 1.2 of the Annexure Part B does not do that.
1010. The list of defects from Mr Gellatly of MBM as at the Date of PC claimed by the Claimant229 does not identify any major defects. I accept Mr Gellatly’s report as a contemporary record as at the date of PC the Claimant asserts.
1011. I note that prior to receiving the claimant’s reply I spend a considerable amount of time going through the defects lists from the adjudication response. I was then and am now unable to say in many cases what is the defect the photograph actually shows, I can see some very minor defects, and some cleaning which should be done, none of which would lead me to believe the Claimant had not reached PC.
1012. In that regard I agree with the Claimant, but I also agree with the Claimant that the Superintendents list is an audit sample, it is not a complete list. Therefore, where the Respondents submissions is that it can deny PC to the Claimant on the basis of an audit sample which exhibits no significant defects, then that submission must fail.
1013. At this point I will refer the parties back to my assessment of dates under the heading “Variation 112 - Acceleration Costs” above, that assessment leads to a conclusion that the Date of PC is the date asserted by the Claimant.
1014. Finally, I cannot accept that where a Certificate of Classification is given on the 3rd March 2016 that the building has not reached practical completion as defined in the contract. I note I don’t seem to have a copy, but equally the Respondent doesn’t contest this occurred. Indeed, Mr Jeanneret-Gris seems to agree at [332](b) of his statement.
1015. The notices given by the Respondent however relate to documents not provided. The only documents referred to in Mr Jeanneret-Gris’ letter of the 2nd March 2016 are the Mechanical, Fire, and Electrical Services Reports. The attachment Annexure A to that letter refers not to missing documents (that I can see) but to documents where the Superintendent wants more information or a contents list. The contract requirement under the definition of PC at (c) is that these things have been given. They have been given, that the Respondent wants some amendments made is a matter for the parties. The contract requirement has been met.
1016. The Respondent says the Claimant also failed to perform tests. I can’t see a requirement in the definition of PC in the contract for testing to have been carried out.
1017. For the reasons given above I am satisfied that the Date of PC for the purposes of valuation in this adjudication is the 3rd March 2016.
Setoff 1 - Defective Works
1018. The Respondent asserted in its payment schedule a right to deduct an estimated amount of $149,750 for the cost of rectifying allegedly defective work. In the adjudication response230 it reduces this amount to $112,383.70 on the basis of actual costs incurred.
1019. Clause 30.3 of the contract deals with defective works:
“30.3 Defective Materials or Work
If the Superintendent discovers material or work provided by the Contractor which is not in accordance with the Contract, the Superintendent may direct the Contractor to —
228 At 1.2 and 1.51 of the Annexure Part B 229 At Tab G11 of the application 230 At 2.7
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(a) remove the material from the Site;
(b) demolish the work;
(c) reconstruct, replace or correct the material or work; or
(d) not to deliver the material or work to the Site.
The Superintendent may direct the times within which the Contractor must commence and complete the removal, demolition, replacement or correction.
If the Contractor fails to comply with a direction issued by the Superintendent pursuant to Clause 30.3 within the time specified by the Superintendent in the direction and provided the Superintendent has given the Contractor notice in writing that after the expiry of 7 days from the date on which the Contractor receives the notice the Principal intends to have the work carried out by other persons, the Principal may have the work of removal, demolition, replacement or correction carried out by other persons and the cost incurred by the Principal in having the work so carried out shall be a debt due from the Contractor to the Principal.”
1020. The Respondent says where the Claimant has failed to carry out a direction in the first paragraph of clause 30.3 within the time specified and where it has given the notice in the last paragraph of clause 30.3 then it has a right to have that rectification work done by others and the cost of having it done by others, is a debt due to it from the Claimant. In that circumstance it says it has a right under clause 42.10 to set off that debt against any monies due under the contract and if those amounts are insufficient then to have recourse to retentions and security.
1021. I agree with that position.
1022. Under clause 30.6 a notice under clause 30.3 can only be given up to the Date of PC.
1023. At [481] of the payment schedule the Respondent provides 8 notices which it says have been issued under clause 30.3.
1024. I note it also mentions clause 37 which relates to practical completion and notices which must be given under that provision to rectify defects:
“37 DEFECTS LIABILITY
The Defects Liability Period stated in the Annexure shall commence on the Date of Practical Completion.
As soon as possible after the Date of Practical Completion, the Contractor shall rectify any defects or omissions in the work under the Contract existing at Practical Completion. At any time prior to the 14th day after the expiration of the Defects Liability Period, the Superintendent may direct the Contractor to rectify any omission or defect in the work under the Contract existing at the Date of Practical Completion or which becomes apparent prior to the expiration of the Defects Liability Period. The direction shall identify the omission or defect and state a date by which the Contractor shall complete the work of rectification and may state a date by which the work of rectification shall commence. The direction may provide that in respect of the work of rectification there shall be a separate Defects Liability Period of a stated duration not exceeding the period stated in the Annexure. The separate Defects Liability Period shall commence on the date the Contractor completes the work of rectification. Clause 37 shall apply in respect of the work of rectification and the Defects Liability Period for that work of rectification.
If the work of rectification is not commenced or completed by the stated dates, the Principal may have the work of rectification carried out at the Contractor’s expense, but without prejudice to any other rights that the Principal may have against the Contractor with respect to such omission or defect and the cost of the work of rectification incurred by the Principal shall be a debt due from the Contractor.
If it is necessary for the Contractor to carry out work of rectification, the Contractor shall do so at times and in a manner which cause as little inconvenience to the occupants or users of the Works as is reasonably possible.”
1025. Therefore, a notice under clause 30.3 may be given up to the Date of PC and a notice under clause 37 may be given after the Date of PC.
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1026. The only difference between the two notices which might be given to have the work undertaken by others is that under clause 30.3, the Superintendent must give a written notice at the expiry of the period it gives the Contractor to perform the rectification work lest they be done by others. There is no such requirement in clause 37.
1027. As I have decided above that the Date of PC was the 3rd March 2016, then the notices from that date are under clause 37.
1028. I note that as at the 13th April 2016, the Superintendent certified PC. Therefore, any work which might have been necessary to reach PC was done by that date.
1029. Simply because the Claimant achieved PC does not mean that it failed to undertake defect work which the Respondent had directed it to undertake under clauses 30.3 and 37.
1030. I am satisfied that the defects were minor such that they would not have stopped PC however they are still defects requiring attention.
1031. I am satisfied the notices given by the Respondent are valid notices under the contract to attend to those minor defects.
1032. I have reviewed the invoices at Tab JSK-6231 to the statement of Mr Kaggelis.
1033. In each occasion I am satisfied that the work being done is rectification work which is part of the Claimants responsibilities under the contract and which was not done by the Claimant.
1034. I accept that access to the site after occupation was not possible at any time.
1035. As the invoices are records of actual costs incurred, then I accept they were incurred.
1036. I am satisfied the Respondent has proven its entitlement to make and the quantum of the deductions for defective works.
TO COLLECTION -$112,383.70
Setoff 2- Liquidated Damages
1037. I have dealt with the right to Liquidated Damages above.
1038. I have determined that the Date for Practical Completion for the purposes of this adjudication is the 2nd December 2015.
1039. I have determined that the Date of Practical Completion for the purposes of this adjudication is the 3rd March 2016.
1040. Therefore, the Claimant has completed the works after the Date for Practical Completion and is subject to Liquidated Damages.
1041. The contract provides for Liquidated Damages to be paid at the rate of $5,000 per calendar day and that they are unlimited.
1042. There are 92 calendar days between the two dates which equates to $460,000 in Liquidated Damages.
TO COLLECTION -$460,000.00
Setoff 3 – Security
1043. In an adjudication I have no jurisdiction to order specific performance by way of an order to the Respondent to return bank guarantees or bonds or the like.
1044. It is only where the withholding is cash where I can include the amount in the adjudicated amount.
1045. The Claimant says the Respondent holds a Bank Guarantee as security.
1046. The Respondent seeks to withhold additional security under clause 5.5 of the contract
" 5.5 Recourse to Retention Moneys and Conversion of Security
231 Shown as JSK-3 in 14.6 of the adjudication response.
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Without limiting any of the Principal's other rights under the Contract or at law, the Principal may have recourse to security and may convert security provided by the Contractor into money where a debt is due under the Contract.
The Principal will not be liable for and the Contractor releases and discharges the Principal from all Claims by the Contractor in connection with the conversion of any security into cash, recourse by the Principal against any security or the use of any security or the money obtained from the security under this Contract."
1047. I accept that the Respondent has a right under clause 5.5 to withhold should a debt exist.
1048. It assertion is based upon there being a large negative balance in the Superintendent’s assessment meaning that a debt is due to the Respondent.
1049. I have decided amounts above which show no negative balance, therefore there is no debt due and the Respondent’s right under clause 5.5 is not triggered.
TO COLLECTION $0.00
The Adjudicated Amount
1050. Section 26(1)(a) of the Act states that I am to decide…
“the amount of the progress payment, if any, to be paid by the respondent to the claimant (the “adjudicated amount”)”
1051. In assessing the provisions of the contract and the submissions of the parties, I decide that the adjudicated amount is Four Hundred and Seventy Thousand, Eight Hundred and Forty Thousand Dollars and Ninety-Eight Cents (Exclusive of GST) as shown in Appendix B.
Due Date for Payment Decision
1052. Section 26(1)(b) of the Act states that I am to decide…
“(b) the date on which any amount became or becomes payable”
1053. In assessing the provisions of the Contract, I have decided the Payment claim became payable on the 24th May 2016.
Rate of Interest Decision
1054. Section 26(1)(c) of the Act states that I am to decide…
“(c) the rate of interest payable on any amount”.
1055. In assessing the provisions of the contract, I have decided that the rate of interest payable is 11.73% per annum simple interest.
Adjudicators Fees
1056. Sections 35(2) & (3) provide that the Claimant and the Respondent are jointly and severally liable to pay the adjudicators fees and expenses and are each liable to pay a proportion of the fees as I may decide.
1057. Section 35A identifies what I must consider in arriving at my determination under s.35(3).
1058. The Claimant says the Respondent should pay 100% of these fees.
1059. The Respondent says if it is successful that the Claimant should pay these fees and in the alternative that if the amount falls between these two positions then the parties should share them in equal proportions.
1060. I decide that I will not exercise the discretion to move from the position where the parties are equally liable for my fees, each party shall pay them in equal shares for the following reasons.
1061. Section35A(2)(a) – On the basis that the answer is almost squarely between the two amounts, I accept the Respondents submission that they should be shared.
1062. Sections35A(2)(b)-(j) - Do not apply; both parties gave significant submissions and obviously contest their positions honestly believing in their position.
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Determination
1063. For the reasons set out above, I decide that the adjudicated amount in respect of the Adjudication application dated 31st May 2016, is Four Hundred and Seventy Thousand, Eight Hundred and Forty Thousand Dollars and Ninety-Eight Cents (Exclusive of GST) as shown in Appendix B, the date on which the amount became payable is the 24th May 2016, the applicable rate of interest is 11.73% per annum and that the Parties will pay the Adjudicators fees and expense in equal shares.
Jonathan Smith
Registered Adjudicator No. J1066110
17th October 2016
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APPENDIX A – JURISDICTION
JURISDICTIONAL ISSUES
Part of the Act Jurisdictional Issue Decision
s.23 Nomination of adjudicator by registrar.
There are no conflicts of which I am aware
s.10(3) If the contract is for the 'carrying out' of 'construction work'; does the work include any of the following -
(a) the drilling for, or extraction of, oil or natural gas;
No it is not
(b) the extraction, whether by underground or surface working, of minerals, including tunnelling or boring, or constructing underground works, for that purpose.
No it is not
s.10(1)(a) to (h) and s.10(2)
If the contract is for the 'carrying out' of 'construction work'; is the work within the definition in s.10 of the Act, noting the definition of 'carry out construction work' in schedule 2?
I am satisfied that construction of the RACF Aged Care Facility at 330 Jackson Road Sunnybank Hills fits the definition of Construction Work in s10 of the Act.
11(a) If the contract is for the supply of related goods; are those goods within the definition of goods in s.11(a) of the Act?
I am satisfied that the supply of plant & materials for construction of the RACF Aged Care Facility at 330 Jackson Road Sunnybank Hills fits the definition of related goods in s11(1)(a) of the Act.
11(b) If the contract is for the supply of related services; are those services within the definition of goods in s.11(b) of the Act?
I am satisfied that the supply of labour for construction of the RACF Aged Care Facility at 330 Jackson Road Sunnybank Hills fits the definition of related services in s11(1)(b) of the Act.
s.3(1) and Schedule 2 definition of 'construction contract'
Is the contract a contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party?
I am satisfied the contract is a contract, agreement or other arrangement under which the Claimant has undertaken to carry out construction work for and to supply related goods and services to the Respondent.
s.3(1) Was the construction contract entered into prior to 1 October 2004?
No - 5 September 2014
s.3(2)(a) Does the construction contract form part of a loan agreement, a contract of guarantee or a contract of insurance under which a recognised
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financial institution undertakes—
(i) to lend an amount or to repay an amount lent?
No it is not
(ii) to guarantee payment of an amount owing or repayment of an amount lent?
No it is not
(iii) to provide an indemnity relating to construction work carried out, or related goods and services supplied, under the construction contract?
No it is not
s.3(2)(b) Is the construction contract for the carrying out of domestic building work where a resident owner; as defined in s.3(5) of the Act; is a party to the contract, to the extent the contract relates to a building or part of a building where the resident owner resides or intends to reside?
No it is not
s.3(2)(c) Under this construction contract, it is agreed that the consideration payable for construction work carried out under the contract, or for related goods and services supplied under the contract, is to be calculated other than by reference to the value of the work carried out or the value of the goods and services supplied?
No it is not
s.3(3)(a) Does this contract contain provisions under which a party undertakes to carry out construction work, or supply related goods and services in relation to construction work, as an employee of the party for whom the work is to be carried out or the related goods and services are to be supplied?
No it is not
s.3(3)(b) Does this contract contain provisions under which a party undertakes to carry out construction work, or to supply related goods and services in relation to construction work, as a condition of a loan agreement with a recognised financial institution?
No Issue
s.3(3)(c) Does this contract contain provisions under which a party undertakes -
(i) to lend an amount or to repay an amount lent?
No Issue
(ii) to guarantee payment of an amount owing or repayment of an amount lent?
No Issue
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(iii) to provide an indemnity relating to construction work carried out, or related goods and services supplied, under the construction contract?
No Issue
s.3(4) Does this contract deal with construction work carried out outside Queensland or related goods and services supplied for construction work carried out outside Queensland?
No Issue - Sunnybank Hills Queensland
s.4 Has a notice of claim of charge under the Subcontractors’ Charges Act 1974 in relation to construction work or related goods and services the subject of this construction contract been given?
I have not been made aware of one.
s.16 Does the contract contain any pay when paid provisions?
No Issue
s.17(1) Was the claim served within the meaning of s.103 of the Act on the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent)?
Service of the claim was via email on the 30th April 2016. Email is allowed as a method of transmission in 1.10 of the Formal Instrument of Agreement. The letter is addressed to the physical address shown in 1.10, but to a different email address to the one shown in 1.10 of the Formal Instrument of Agreement. The Respondent does not contest the email address or that it was served a copy of the claim. I do not have a copy of the actual email which delivered the claim, it may have been delivered to the correct email address or the parties may have agreed a different address, I have no submissions either way. On that basis and because the contractual provisions in s103(1) are; by virtue of s103(2); in addition to and don't exclude the provisions of the Acts Interpretations Act 1954, I am satisfied that the claim was served in accordance with the contract; as it was operated by the parties; and the Act. Whilst the 30th April is a Saturday, the contract at clause 2 and the Formal Instrument of Agreement at 1.10 allow for a document not given on a business day to be deemed to be given on the next business day. As the 2nd May 2016 was the Labour Day Public Holiday the claim is deemed to be served on
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the 3rd May 2016.
s.17(2) Does the Payment Claim -
(a) identify the construction work or related goods and services to which the progress payment relates?
Yes, it does
(b) state the amount of the progress payment that the claimant claims to be payable (the claimed amount)?
Yes, it does
(c) state that it is made under this Act? Yes, it does
s.17(4) Has a previous payment claim been served in relation to the reference date to which this claim relates?
None of which I have been made aware. See heading "Reference Date and Due Date for Payment"
s.17A(2) If this is not a claim relating to a final payment; then was it served within the later of the period in the construction contract (s.17A(2)(a)) or 6 months after the last construction work was undertaken or related goods and services to which the claim relates were last supplied (s.17A(2)(b))?
The payment claim is not treated by either party as a final claim. The only contest is over whether it is the claim before the final claim.
s.17A(3) If this is a claim relating to a final payment; then was it served within the later of: (a) the period; if any; worked out under the relevant construction contract (s.17A(3)(a)); (b) 28 days after the end of the last defects liability period (defined in s17A(4)) if any, worked out under the relevant construction contract (s.17A(3)(b)); or (c) 6 months after the later of (i) completion of all construction work under the relevant construction contract (s.17A(3)(c)(i)); or (ii) complete supply of related goods and services to be supplied under the relevant construction contract (s.17A(3)(c)(ii))?
s.18(1) Was any payment schedule served within the meaning of s.103 of the Act on the claimant?
Clause 42.1 as amended by the Annexure Part B - Special Conditions allows for a payment schedule to be given within 10 business days (as defined in the contract) of receipt of a payment claim. The payment schedule served on the Claimant on the 17th May 2016 is therefore within time.
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s.18(2) Does the Payment Schedule -
(a) Identify the payment claim to which it relates?
Yes, it does
(b) State the amount of the payment, if any, that the respondent proposes to make (the scheduled amount)?
Yes, it does
s18(3) If the scheduled amount is less than the claimed amount does the payment schedule state any reason(s) why it is less, or for what reason(s) it is withholding payment?
Yes, it does
s.18A Is this a standard payment claim or a complex payment claim?
Complex
s.18A(2) If this is a standard payment claim, then was the payment schedule served within the earlier of the time required under the construction contract or 10 business days after the payment claim was served?
It is not a standard claim.
s.18A(3) If this is a complex payment claim then was the payment schedule served within the earlier of the time required under the construction contract or whichever of the following applies (i) if the claim was served on the respondent 90 days or less after the reference date to which the claim relates—15 business days after the claim is served; (ii) if the claim was served on the respondent more than 90 days after the reference date to which the claim relates—30 business days after the claim is served?
Yes, it was - See s18(1) above.
s.19(1) Is it the case that the respondent was served with a payment claim and did not serve a payment schedule on the claimant within the time that the respondent may serve the schedule on the claimant?
No Issue
s.19(3) (3) If the respondent fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates, the claimant— (a) may— ... (ii) make an adjudication application under section 21(1)(b) in relation to the payment
Not Applicable
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claim;
s.21(1)(b) 21 Adjudication application (1) A claimant may apply for adjudication of a payment claim (an adjudication application) if— ... (b) the respondent fails to serve a payment schedule on the claimant under this part and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.
s.21(2)(a) An adjudication application to which subsection 21(1)(b) applies cannot be made unless— (a) the claimant gives the respondent a notice under section 20A(2) of its intention to take the action, which notice must comply with s20A(3).
s20A(3) Was a notice given to the respondent within 20 business days immediately following the due date for payment; which stated that the respondent may serve a payment schedule on the claimant within 5 business days after receiving the notice; and also stated that it was made under this Act?
s.21(2)(b) An adjudication application to which subsection 21(1)(b) applies cannot be made unless— ... (b) the 5 business days for the respondent to serve the payment schedule, as stated in the notice, has ended.
Not Applicable
Was an application made before the end of the 5-day period in s.21(2)(b)?
s.21(3)(c)(iii) Was the application made within 10 business days after the end of the 5 business days referred to in subsection s.21(2)(b)
Not Applicable
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s.20(1) (1) Section 20 applies if— (a) a claimant serves a payment claim on a respondent; and (b) the respondent serves a payment schedule on the claimant within the time that the respondent may serve the schedule on the claimant; and (c) the payment schedule states a scheduled amount that the respondent proposes to pay to the claimant; and (d) the respondent fails to pay the whole or any part of the scheduled amount to the claimant on or before the due date for the progress payment to which the payment claim relates.
Not Applicable
s.20(2) (2) The claimant— (a) may— ... (ii) make an adjudication application under section 21(1)(a)(ii) in relation to the payment claim;
Not Applicable
s.21(1)(a(ii) Adjudication application (1) A claimant may apply for adjudication of a payment claim (an adjudication application) if— (a) the respondent serves a payment schedule under this part but— ... (ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount; or
s.21(3)(c)(ii) Was the adjudication application made within 20 business days after the due date for payment?
s.21(1)(a)(i) Did the claimant serve a payment claim on the respondent and did the respondent serve a payment schedule on the claimant, but the scheduled amount stated in the payment schedule was less than the claimed amount stated in the payment claim?
Yes, therefore s.21(3)(c)(i) applies
s.21(3)(c)(i) Was the application made within 10 business days after the claimant received the payment schedule?
Yes - The application was made 10 business days after the claimant received the payment schedule. Therefore, it is within time.
s.21(3) The application…
(a) Is it in the approved form? It was referred to me by the registrar and commences with the QBCC adjudication application form, therefore I accept that it was.
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(b) Was it made to the registrar? It was referred to me by the registrar, therefore I accept that it was.
(d) Does it identify the payment claim and payment schedule, if any, to which it relates?
Yes - No Issue
(e) Was it accompanied by the fee prescribed by regulation for the application?
It was referred to me by the registrar, therefore I accept that it was.
Having considered the matters above, I am satisfied that I have jurisdiction to decide this matter.
OTHER PROCEDURAL ISSUES AFFECTING TIMING AND MY RIGHT TO CONSIDER
s.21(5) Was copy of the application served on the respondent?
Yes
s.24 Did the respondent serve a payment schedule on the claimant within the time that the respondent may serve the schedule on the claimant? Section 24(2)
Yes; and as a result the Respondent may give an adjudication response
s.24A(1) Is the adjudication application is about a standard payment claim?
No
s.24A(2) Was the adjudication response to a standard payment claim given within the later of the following to end— (a) 10 business days after receiving a copy of the adjudication application; (b) 7 business days after receiving notice of the adjudicator’s acceptance of the adjudication application?
Not Applicable
s.24A(3) Is the adjudication application is about a complex payment claim?
Yes
s.24A(4) Was the adjudication response to a complex payment claim given within the later of the following to end— (a) 15 business days after receiving a copy of the adjudication application; (b) 12 business days after receiving notice of the adjudicator’s acceptance of the adjudication application?
An application under s24A(5) was made.
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s.24A(5) Did the respondent apply to the adjudicator for an extension of time, of up to 15 additional business days, to give the adjudication response?
Yes, and I granted the Respondent an additional 15 business days.
s.24A(6) Was that application- (a) made within the later of the following to end— (i) 5 business days after receiving a copy of the adjudication application; (ii) 2 business days after receiving notice of the adjudicator’s acceptance of the adjudication application; and (b) in writing; and (c) did it include the reasons for requiring the extension of time?
Yes
s.24A(7) If the application was granted, were reasons given?
Yes - I indicated "I agree the volume of material it has to digest is considerable and of the necessity for statements. I therefore allow the extension of time for giving me the response until the 13th August 2016."
If the application was granted, did the respondent give the adjudicator the adjudication response no later than the end of the extension of time granted?
Yes
s.24A(8) Was a copy of the adjudication response served on the claimant no more than 2 business days after it is given to the adjudicator?
Yes - I am satisfied the Claimant was given a copy the day after it was given to me.
s.24(3) The adjudication response -
(a) Is it in writing? Yes
(b) Does it identify the adjudication application to which it relates?
Yes
s.24(4) Is the adjudication application is about a standard payment claim? If so are there reasons included in the adjudication response which were not included in the payment claim?
No - Complex
s.24(5) Is the adjudication application is about a complex payment claim?
Yes
113 | P a g e
s.24B Where the adjudication application is about a complex payment claim and the respondent includes in an adjudication response reasons for withholding payment that were not included in the payment schedule when served on the claimant (the new reasons) then the claimant may give the adjudicator a reply to the new reasons (the claimant’s reply) within 15 business days after receiving a copy of the adjudication response.
I am satisfied there are new reasons for withholding given in the Adjudication Response which were not given in the Payment Schedule and therefore that the Claimant may give me a Claimant's Reply. Refer to Appendix C to this decision.
s.24B(1) Does the adjudicator believe that there are new reasons given in the adjudication response?
s.24B(7) Did the claimant give the adjudicator notice within 5 business days of the claimant receiving the adjudication response that it proposed to give the adjudicator a claimants reply?
Yes
s.24B(2) Was the claimants reply received within 15 business days after receiving a copy of the adjudication response?
No the Claimant made an application under s24B(3)
s.24B(3) Did the claimant apply to the adjudicator for an extension of time, of up to 15 additional business days, to give the claimants reply?
Yes, and I granted the additional 15 business days.
s24B(4) Was that application made- (a) within 5 business days after receiving a copy of the adjudication response; (b) in writing; and (c) did it include the reasons for requiring the extension of time?
Yes
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s.24B(5) If the application was granted, were reasons given?
Yes and I indicated: "I am satisfied that the Adjudication Response includes new reasons for withholding payment which were not included in the payment schedule, as the Respondent may do so under section 24(5) of the Act. a. They include; inter alia; an admission by the Respondent at section 9.4 that its submissions on scheduling and delay are only broadly consistent with its payment schedule. It begs that in the case of any inconsistency, I use the submissions in the adjudication response (those of Mr. Ash) rather than those in the payment schedule (those of Mr. Jeanneret-Gris). b. Further I accept that the adjudication response submissions on the delay claims are substantially different to that in the payment schedule and indeed substantially more complex, so as to render the adjudication response submissions, new reasons. In that regard I refer to the decision of Palmer J. in Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 generally; and in particular at [76]-[78]."
and "I have considered the reasons given by the Claimant and am satisfied that the Adjudication Response submissions comprising 6 boxes of files, which include expert reports and statutory declarations, are so extensive and complex that they warrant significantly more than 15 business days to address properly. I also accept the Claimant’s submission that as some of its workers from whom it will seek statements no longer work for it, that it will take some time to locate them and get those statements. Therefore, I am satisfied that the Claimant’s request for an additional 15 business days within which to give me a claimant’s reply should be granted."
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If the application was granted, did the claimant give the adjudicator the claimants reply no later than the end of the extension of time granted?
Yes
s.24B(6) Was a copy of the claimant's reply served on the respondent no more than 2 business days after it is given to the adjudicator?
My Agent emailed the parties on the 22nd April 2016 requesting information on this service. The Claimant's solicitor replied (copied to the Respondent) saying a copy had been delivered that day. The Respondents solicitor also confirmed that service had occurred. Therefore s.24B(6) had been satisfied such that the Respondent was afforded the measure of natural justice the Act requires to be given such that it might make any jurisdictional submission in reply prior to the deadline.
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APPENDIX B – RECONCILLIATION OF POSITIONS AND COLLECTION
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GRINDLEY CONSTRUCTION PTY LTD (ABN 42 003 586 687) (“Claimant”) v TRICARE (COUNTRY) PTY LTD (ABN 66 008 411 069) (“Respondent”)
Contract Contested
Amount Completed Completed Assessed Completed Assessed Completed Difference
$ % $ % $ $
CONTRACT WORKS
Preliminaries $1,583,202.00 100% $1,583,202.00 100% $1,583,202.00 $0.00 $0.00 $1,583,202.00
Scaffolding $250,000.00 100% $250,000.00 100% $250,000.00 $0.00 $0.00 $250,000.00
Ground Works $127,546.00 100% $127,546.00 100% $127,546.00 $0.00 $0.00 $127,546.00
Piling $8,159.00 100% $8,159.00 100% $8,159.00 $0.00 $0.00 $8,159.00
Termite Treatment $26,699.00 100% $26,699.00 100% $26,699.00 $0.00 $0.00 $26,699.00
Concrete $626,458.00 100% $626,458.00 100% $626,458.00 $0.00 $0.00 $626,458.00
Formworks $405,601.00 100% $405,601.00 100% $405,601.00 $0.00 $0.00 $405,601.00
Reinforcement $377,348.00 100% $377,348.00 100% $377,348.00 $0.00 $0.00 $377,348.00
Masonry $580,968.00 100% $580,968.00 100% $580,968.00 $0.00 $0.00 $580,968.00
Structural Steel $840,104.00 100% $840,104.00 100% $840,104.00 $0.00 $0.00 $840,104.00
Roof Trusses & Wall Framing $491,350.00 100% $491,350.00 100% $491,350.00 $0.00 $0.00 $491,350.00
Roofing $397,561.00 100% $397,561.00 100% $397,561.00 $0.00 $0.00 $397,561.00
Waterproffing $161,350.00 100% $161,350.00 100% $161,350.00 $0.00 $0.00 $161,350.00
Roof Safety System $30,700.00 100% $30,700.00 100% $30,700.00 $0.00 $0.00 $30,700.00
Aluminium Framed Windows and Doors $1,172,740.00 100% $1,172,740.00 100% $1,172,740.00 $0.00 $0.00 $1,172,740.00
Acoustic Louvres $56,360.00 100% $56,360.00 100% $56,360.00 $0.00 $0.00 $56,360.00
Sun Shade Louvres $70,615.00 100% $70,615.00 100% $70,615.00 $0.00 $0.00 $70,615.00
Glazed Balsutrades $32,557.00 100% $32,557.00 100% $32,557.00 $0.00 $0.00 $32,557.00
CFC External Cladding $495,957.00 100% $495,957.00 100% $495,957.00 $0.00 $0.00 $495,957.00
Metal Cladding $103,961.00 100% $103,961.00 100% $103,961.00 $0.00 $0.00 $103,961.00
Doors and Frames $252,643.00 100% $252,643.00 100% $252,643.00 $0.00 $0.00 $252,643.00
Overhead Doors $11,250.00 100% $11,250.00 100% $11,250.00 $0.00 $0.00 $11,250.00
Door Hardware $104,500.00 100% $104,500.00 100% $104,500.00 $0.00 $0.00 $104,500.00
Woodwork $75,685.00 100% $75,685.00 100% $75,685.00 $0.00 $0.00 $75,685.00
Toilet Partitions $4,000.00 100% $4,000.00 100% $4,000.00 $0.00 $0.00 $4,000.00
General Metalwork $23,769.00 100% $23,769.00 100% $23,769.00 $0.00 $0.00 $23,769.00
Handrails and Balustrades $92,500.00 100% $92,500.00 100% $92,500.00 $0.00 $0.00 $92,500.00
Stair Nosings $7,600.00 100% $7,600.00 100% $7,600.00 $0.00 $0.00 $7,600.00
Mirrors and Glazing $28,220.00 100% $28,220.00 100% $28,220.00 $0.00 $0.00 $28,220.00
Ceilings and Partitions $1,744,950.00 100% $1,744,950.00 100% $1,744,950.00 $0.00 $0.00 $1,744,950.00
Cement Render $8,457.00 100% $8,457.00 100% $8,457.00 $0.00 $0.00 $8,457.00
Carpet and Resilient Finishes $509,268.00 100% $509,268.00 100% $509,268.00 $0.00 $0.00 $509,268.00
Tiling $307,987.00 100% $307,987.00 100% $307,987.00 $0.00 $0.00 $307,987.00
Stonework $69,317.00 100% $69,317.00 100% $69,317.00 $0.00 $0.00 $69,317.00
Cementatious Toppings and Concrete Sealers $13,150.00 100% $13,150.00 100% $13,150.00 $0.00 $0.00 $13,150.00
Painting $300,695.00 100% $300,695.00 100% $300,695.00 $0.00 $0.00 $300,695.00
Signage $17,137.00 100% $17,137.00 100% $17,137.00 $0.00 $0.00 $17,137.00
Fixtures and Fittings $35,986.00 100% $35,986.00 100% $35,986.00 $0.00 $0.00 $35,986.00
Hydraulic Services $1,361,615.00 100% $1,361,615.00 100% $1,361,615.00 $0.00 $0.00 $1,361,615.00
Fire Services $478,868.00 100% $478,868.00 100% $478,868.00 $0.00 $0.00 $478,868.00
Mechanical Services $1,679,998.00 100% $1,679,998.00 100% $1,679,998.00 $0.00 $0.00 $1,679,998.00
Electrical Services $1,520,035.00 100% $1,520,035.00 100% $1,520,035.00 $0.00 $0.00 $1,520,035.00
Lifts $415,200.00 100% $415,200.00 100% $415,200.00 $0.00 $0.00 $415,200.00
Food and Laundry Services $123,976.00 100% $123,976.00 100% $123,976.00 $0.00 $0.00 $123,976.00
Landscaping $283,142.00 100% $283,142.00 100% $283,142.00 $0.00 $0.00 $283,142.00
Fences and Gates $54,750.00 100% $54,750.00 100% $54,750.00 $0.00 $0.00 $54,750.00
External Driveways $293,414.00 100% $293,414.00 100% $293,414.00 $0.00 $0.00 $293,414.00
Margin & Overheads $1,026,967.00 100% $1,026,967.00 100% $1,026,967.00 $0.00 $0.00 $1,026,967.00
Total Contract Works $18,684,315.00 $18,684,315.00 $18,684,315.00 $0.00 $0.00 $0.00 $0.00 $0.00 $18,684,315.00
Adjudicated AmountItem Description
Payment Claim Payment Schedule Conceded by
Claimant in
Application
Conceded by
Respondent in
Response
Conceded by
Claimant in Reply
Contested in
Adjudication
118 | P a g e
GRINDLEY CONSTRUCTION PTY LTD (ABN 42 003 586 687) (“Claimant”) v TRICARE (COUNTRY) PTY LTD (ABN 66 008 411 069) (“Respondent”)
Contract Contested
Amount Completed Completed Assessed Completed Assessed Completed Difference
$ % $ % $ $
PROVISIONAL SUMS
Supply & Install AV Equipment $15,000.00 100% $15,000.00 100% $15,000.00 $0.00 $0.00 $15,000.00
Supply & Install Way Finding & Corporate
Signings $5,000.00 100% $5,000.00 0% $5,000.00 $0.00 $0.00 $5,000.00
Dentist Roon Fitout $50,000.00 100% $50,000.00 0% $50,000.00 $0.00 $0.00 $50,000.00
Telstra Connection $10,000.00 100% $10,000.00 100% $10,000.00 $0.00 $0.00 $10,000.00
Supply & Install Joinery $1,300,000.00 100% $1,300,000.00 100% $1,300,000.00 $0.00 $0.00 $1,300,000.00
Supply & Install Patient Hoist Tracks & Support
Structures $310,000.00 100% $310,000.00 100% $310,000.00 $0.00 $0.00 $310,000.00
Supply & Install Supa Wood Ceilings $192,000.00 100% $192,000.00 100% $192,000.00 $0.00 $0.00 $192,000.00
Supply Light Fittings $800,000.00 100% $800,000.00 100% $800,000.00 $0.00 $0.00 $800,000.00
Nurse Call System $200,000.00 100% $200,000.00 100% $200,000.00 $0.00 $0.00 $200,000.00
Total Provisional Sums $2,882,000.00 $2,882,000.00 $2,882,000.00 $0.00 $0.00 $0.00 $0.00 $0.00 $2,882,000.00
Total Contract Works + Provisional Sums $21,566,315.00 $21,566,315.00 $21,566,315.00 $0.00 $21,566,315.00
VARIATIONS
1 Water Softener $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
2 Documentation changes "for construction
electrical" $16,595.00 100% $16,595.00 $16,595.00 $0.00 $0.00 $16,595.00
3 Documentation changes "for construction
mechanical" $11,220.00 100% $11,220.00 $11,220.00 $0.00 $0.00 $11,220.00
4 Re-Route and reduce size of consumer margins -$28,909.00 100% -$28,909.00 -$28,909.00 $0.00 $0.00 -$28,909.00
5 Documentation changes "for construction fire" $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
6 Backfill transformer pit $3,850.00 100% $3,850.00 $3,850.00 $0.00 $0.00 $3,850.00
7 Bed Hoist Provisional Sum Adjustment -$35,866.00 100% -$35,866.00 -$35,866.00 $0.00 $0.00 -$35,866.00
8 Wadditional Wap points $12,584.00 100% $12,584.00 $12,584.00 $0.00 $0.00 $12,584.00
9 Façade changes structural $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
10 Alternative generator changes $3,795.00 100% $3,795.00 $3,795.00 $0.00 $0.00 $3,795.00
11 QUU water meters $14,151.59 100% $14,151.59 $14,151.59 $0.00 $0.00 $14,151.59
12 Level 1 wall amendments $6,840.00 100% $6,840.00 $6,840.00 $0.00 $0.00 $6,840.00
13 Kitchen drainage changes $4,683.80 100% $4,683.80 $4,683.80 $0.00 $0.00 $4,683.80
14 MSB pit $8,005.80 100% $8,005.80 $8,005.80 $0.00 $0.00 $8,005.80
15 Over-excavation to PF2 $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
16 External Façade amendments - Structural &
Finishes (Rev 1) $85,410.05 100% $85,410.05 $35,167.00 $50,243.05 $50,243.05 $85,410.05
17 Interior changes $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
18 Alternative strip drain -$30,100.00 100% -$30,100.00 -$30,100.00 $0.00 $0.00 -$30,100.00
19 Additional blockwork $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
20 Lined mockup bedroom $3,454.00 100% $3,454.00 $3,454.00 $0.00 $0.00 $3,454.00
21 Ensuite basin alternative waste $8,387.50 100% $8,387.50 $8,387.50 $0.00 $0.00 $8,387.50
22 Provision for 2nd ptottype room $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
23 Porte cochere recessed lights $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
24 Porte cochere fillet installation $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
25 Porte cochere soffit LED strip $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
26 Telstra lead in route $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
27 Porte cochere recessed lights $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
28 Nurse Call provisional sum adjustmnent $23,397.15 100% $23,397.15 $23,397.15 $0.00 $0.00 $23,397.15
29 Shower mixer respecification $13,030.82 100% $13,030.82 $13,030.82 $0.00 $0.00 $13,030.82
30 Supply balsa core doors in lieu of specified $51,150.00 100% $51,150.00 $51,150.00 $0.00 $0.00 $51,150.00
31 Existing stormwater damage $382.80 100% $382.80 $382.80 $0.00 $0.00 $382.80
32 Installation of T1 beams $1,111.00 100% $1,111.00 $1,111.00 $0.00 $0.00 $1,111.00
Adjudicated AmountItem Description
Payment Claim Payment Schedule Conceded by
Claimant in
Application
Conceded by
Respondent in
Response
Conceded by
Claimant in Reply
Contested in
Adjudication
119 | P a g e
GRINDLEY CONSTRUCTION PTY LTD (ABN 42 003 586 687) (“Claimant”) v TRICARE (COUNTRY) PTY LTD (ABN 66 008 411 069) (“Respondent”)
Contract Contested
Amount Completed Completed Assessed Completed Assessed Completed Difference
$ % $ % $ $
VARIATIONS
33 Relocatioon of penetration $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
34 Additional blockworks to nib walls $3,293.40 100% $3,293.40 $3,293.40 $0.00 $0.00 $3,293.40
35 Installation of window in maintenance shed $713.83 100% $713.83 $713.83 $0.00 $0.00 $713.83
36 Electrical service provision to bedrooms $105,259.70 100% $105,259.70 $105,259.70 $0.00 $0.00 $105,259.70
37 Relocation of AC units within café $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
38 Mechanical services changes due to interior $27,214.00 100% $27,214.00 $27,214.00 $0.00 $0.00 $27,214.00
39 Installation of expansion plates $779.90 100% $779.90 $779.90 $0.00 $0.00 $779.90
40 Reselection of tiles $27,326.59 100% $27,326.59 $27,326.59 $0.00 $0.00 $27,326.59
41 Addition of wallpaper to interior finishes $108,825.50 100% $108,825.50 $108,825.50 $0.00 $0.00 $108,825.50
42 Addion of box gutter overflows to courtyard $3,093.75 100% $3,093.75 $3,093.75 $0.00 $0.00 $3,093.75
43 Joinery and Superwood PS adjustment $100,222.48 100% $100,222.48 $100,222.48 $0.00 $0.00 $100,222.48
44 Reselection of carpet and vinyl $58,501.10 100% $58,501.10 $58,501.10 $0.00 $0.00 $58,501.10
45 Additional FC in lieu of metal cladding $90,666.40 100% $90,666.40 $73,918.90 $16,747.50 $16,747.50 $90,666.40
46 Pylon sign works $4,457.35 100% $4,457.35 $4,457.35 $0.00 $0.00 $4,457.35
47 Boundary earthworks and retaining walls $31,872.07 100% $31,872.07 $25,172.24 $6,699.83 $6,699.83 $25,172.24
48 Pump room retaining wall extensions $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
49 Additional AAV to bedroom basins $5,083.10 100% $5,083.10 $5,083.10 $0.00 $0.00 $5,083.10
50 Servery concrete infills $379.50 100% $379.50 $379.50 $0.00 $0.00 $379.50
51 Additional ensuite wall tiles $5,113.94 100% $5,113.94 $5,113.94 $0.00 $0.00 $5,113.94
52 Audio Visual equipment provisional sum -$15,000.00 100% -$15,000.00 -$15,000.00 $0.00 $0.00 -$15,000.00
53 Telstra Connection prov sum adjustment -$10,000.00 100% -$10,000.00 -$10,000.00 $0.00 $0.00 -$10,000.00
54 Additional external cladding and amended
exterior finishes $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
55 Cover plates for electrical pits $4,510.00 100% $4,510.00 $4,510.00 $0.00 $0.00 $4,510.00
56 Further kitchen drainage amendments $2,567.95 100% $2,567.95 $2,567.95 $0.00 $0.00 $2,567.95
57 Hydraulic documentation revisions $4,957.15 100% $4,957.15 $4,957.15 $0.00 $0.00 $4,957.15
58 Sanitary fixtures and fittings reselection $74,846.29 100% $74,846.29 $74,846.28 $0.01 $0.01 $74,846.28
59 Mechanical services changes due to interior $24,441.05 100% $24,441.05 $24,441.05 $0.00 $0.00 $24,441.05
60 Addition of burnt toat smoke dampers $2,413.74 100% $2,413.74 $2,413.74 $0.00 $0.00 $2,413.74
61 Pan room amendments due to redesign $10,172.86 100% $10,172.86 $10,172.85 $0.01 $0.01 $10,172.85
62 Credit for alternaive hand rail -$8,710.00 100% -$8,710.00 -$8,710.00 $0.00 $0.00 -$8,710.00
63 Joinery and Supawood finalised design $643,702.45 100% $643,702.45 $643,702.45 $0.00 $0.00 $643,702.45
64 Multimose fibre $726.00 100% $726.00 $726.00 $0.00 $0.00 $726.00
65 Updated electrical documents $22,432.73 100% $22,432.73 $22,432.73 $0.00 $0.00 $22,432.73
66 Lighting installation changes $2,093.30 100% $2,093.30 $2,093.20 $0.10 $0.10 $2,093.20
67 Light fitting provisional sum adjustment -$225,493.83 100% -$225,493.83 -$225,493.83 $0.00 $0.00 -$225,493.83
68 Staff station doors in joinery $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
69 Tiled Concrete Sunhoods $8,907.80 100% $8,907.80 $8,907.80 $0.00 $0.00 $8,907.80
70 Facebrick cladding $38,600.10 100% $38,600.10 $38,600.10 $0.00 $0.00 $38,600.10
71 SS Daownpipes to internal courtyards $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
72 Increase in ensuite mirror size $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
73 G18 aluminium glazed door in lieu of timber $1,820.50 100% $1,820.50 $1,820.50 $0.00 $0.00 $1,820.50
74 S/I aluminium window to kitchen $1,069.20 100% $1,069.20 $1,069.20 $0.00 $0.00 $1,069.20
75 Retaining wall waterproofing $3,272.50 100% $3,272.50 $3,272.50 $0.00 $0.00 $3,272.50
76 S/I superwood superbab to dining room ceiling $31,666.80 100% $31,666.80 $31,666.80 $0.00 $0.00 $31,666.80
77 Widening of café bench $948.75 100% $948.75 $948.75 $0.00 $0.00 $948.75
78 Alternative handrail bracket $14,511.20 100% $14,511.20 $14,511.20 $0.00 $0.00 $14,511.20
79 Café and patio floor grinding and polishing $9,438.00 100% $9,438.00 $9,438.00 $0.00 $0.00 $9,438.00
80 Electrical and data changes $10,654.60 100% $10,654.60 $10,654.60 $0.00 $0.00 $10,654.60
81 Addition kerb rail $17,378.21 100% $17,378.21 $17,378.21 $0.00 $0.00 $17,378.21
82 External light fittings $0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
83 HWS cupboard doors $1,600.34 100% $1,600.34 $1,600.33 $0.01 $0.01 $1,600.33
84 Cobblestones to display $4,365.96 100% $4,365.96 $4,365.96 $0.00 $0.00 $4,365.96
85 Painting and render to retaining walls $13,371.60 100% $13,371.60 $13,371.60 $0.00 $0.00 $13,371.60
Adjudicated AmountItem Description
Payment Claim Payment Schedule Conceded by
Claimant in
Application
Conceded by
Respondent in
Response
Conceded by
Claimant in Reply
Contested in
Adjudication
120 | P a g e
GRINDLEY CONSTRUCTION PTY LTD (ABN 42 003 586 687) (“Claimant”) v TRICARE (COUNTRY) PTY LTD (ABN 66 008 411 069) (“Respondent”)
Contract Contested
Amount Completed Completed Assessed Completed Assessed Completed Difference
$ % $ % $ $
VARIATIONS
86 Additional metal work $4,546.08 100% $4,546.08 $4,546.08 $0.00 $0.00 $4,546.08
87 Landscape amendments $12,447.49 100% $12,447.49 $12,447.49 $0.00 $0.00 $12,447.49
88 S/I top corridor 13 edge tiles $1,540.00 100% $1,540.00 $1,540.00 $0.00 $0.00 $1,540.00
89 Application of sealer to cobblestones $1,017.50 100% $1,017.50 $1,017.50 $0.00 $0.00 $1,017.50
90 S/I of gutter guard $7,685.70 100% $7,685.70 $7,685.70 $0.00 $0.00 $7,685.70
91 Capping of ring main as requested QFES $5,537.40 100% $5,537.40 $5,537.40 $0.00 $0.00 $5,537.40
92 Respecification of D6A U02 -$1,462.00 100% -$1,462.00 -$1,462.00 $0.00 $0.00 -$1,462.00
93 Deletion of front boundary fencing -$7,250.00 100% -$7,250.00 -$7,250.00 $0.00 $0.00 -$7,250.00
94 S/I alternate corridor handles $138.60 100% $138.60 $138.60 $0.00 $0.00 $138.60
95 Deletion of towel rings and T/R holders -$12,156.00 100% -$12,156.00 -$12,156.00 $0.00 $0.00 -$12,156.00
96 Revised mechanical specification $30,779.63 100% $30,779.63 $0.00 $30,779.63 -$30,779.63 $0.00 $0.00
97 Additional linear grilles to lounge/dining 3/4 $4,579.48 100% $4,579.48 $4,579.00 $0.48 $0.48 $4,579.00
98 Additional CCTV and AV works $4,990.70 100% $4,990.70 $4,990.70 $0.00 $0.00 $4,990.70
99 S/I pressure limiting valve $2,882.00 100% $2,882.00 $2,882.00 $0.00 $0.00 $2,882.00
100 BCC water fees (back flow devices) $1,056.00 100% $1,056.00 $1,056.00 $0.00 $0.00 $1,056.00
101 Mechanical engineers requests recommendations
$0.00 100% $0.00 $0.00 $0.00 $0.00 $0.00
102 Render and paint to foyer columns $1,361.25 100% $1,361.25 $1,361.25 $0.00 $0.00 $1,361.25
103 Additional pelmets $4,910.40 100% $4,910.40 $4,910.40 -$4,910.40 $0.00 $0.00
104 Additional framing sheeting setting and sanding
to dining lounge room walls $18,298.50 100% $18,298.50 $18,298.50 -$18,298.50 $0.00 $0.00
105 Additional framing sheeting setting and sanding
to cafe walls $1,196.80 100% $1,196.80 $1,196.80 -$1,196.80 $0.00 $0.00
106 Additional ceiling frame supports to support
joinery cladding $1,870.00 100% $1,870.00 $1,870.00 -$1,870.00 $0.00 $0.00
107 Patching of all secondary light switches $1,320.00 100% $1,320.00 $1,320.00 -$1,320.00 $0.00 $0.00
108 Addition of plywood to serveries for joinery
cladding $1,758.90 100% $1,758.90 $1,758.90 -$1,758.90 $0.00 $0.00
109 Additional framing for linear airconditioning
grilles $10,164.00 100% $10,164.00 $10,164.00 -$10,164.00 $0.00 $0.00
110 Way finding signage prov sum adjustment -$5,000.00 100% -$5,000.00 -$5,000.00 $0.00 $0.00 -$5,000.00
111 Dentist room fitout prov sum adjustment -$50,000.00 100% -$50,000.00 -$50,000.00 $0.00 $0.00 -$50,000.00
112 Acceleration Costs $266,127.00 100% $266,127.00 $266,127.00 $266,127.00 $266,127.00
113 Delay costs - EOT 10 external façade amend 56
days @ $5207 per business day $291,592.00 100% $291,592.00 $291,592.00 -$10,414.00 $281,178.00 $0.00
114 Delay costs - EOT 15 external façade amended
8 days @ $5207 per business day $41,656.00 100% $41,656.00 $41,656.00 $41,656.00 $41,656.00
115 Delay costs - EOT 70 retaining wall finishes 4
days @ $5207 per business day $14,788.00 100% $14,788.00 $14,788.00 $14,788.00 $0.00
116 Delay costs - EOT 91 landscaping 8 days @
$5207 per business day $29,576.00 100% $29,576.00 $29,576.00 $29,576.00 $0.00
117 Delay costs - EOT 103 water Main limiting valve
amend 6 days @ $5207 per business day $22,182.00 100% $22,182.00 $22,182.00 $22,182.00 $22,182.00
118 Delay costs - EOT 104 payment of BCC
plumbing fees 1 days @ $5207 per business day $3,697.00 100% $3,697.00 $3,697.00 $3,697.00 $3,697.00
Total Variations $2,149,071.80 $2,149,071.80 $1,335,464.58 $813,607.22 -$80,712.23 $0.00 $0.00 $732,894.99 $1,736,117.13
BACKCHARGES / SET-OFFS / DEDUCTIONS / WITHHOLDINGS
1 Defective Works $0.00 -$149,750.00 $149,750.00 -$37,366.30 $112,383.70 -$112,383.70
2 Liquidated Damages $0.00 -$815,000.00 $815,000.00 $815,000.00 -$460,000.00
3 Security $0.00 -$539,158.00 $539,158.00 $539,158.00 $0.00
Total Backcharges / Set-offs / Deductions /
Withholdings
$0.00 $0.00 -$1,503,908.00 $1,503,908.00 $0.00 -$37,366.30 $0.00 $1,466,541.70 -$572,383.70
Adjudicated AmountItem Description
Payment Claim Payment Schedule Conceded by
Claimant in
Application
Conceded by
Respondent in
Response
Conceded by
Claimant in Reply
Contested in
Adjudication
121 | P a g e
GRINDLEY CONSTRUCTION PTY LTD (ABN 42 003 586 687) (“Claimant”) v TRICARE (COUNTRY) PTY LTD (ABN 66 008 411 069) (“Respondent”)
Contract Contested
Amount Completed Completed Assessed Completed Assessed Completed Difference
$ % $ % $ $
SUMMARY Assessed to Date
Contract Works $18,684,315.00 $18,684,315.00 $18,684,315.00 $0.00 $0.00 $0.00 $0.00 $0.00 $18,684,315.00
Provisional Sums $2,882,000.00 $2,882,000.00 $2,882,000.00 $0.00 $0.00 $0.00 $0.00 $0.00 $2,882,000.00
Variations $2,149,071.80 $2,149,071.80 $1,335,464.58 $813,607.22 -$80,712.23 $0.00 $0.00 $732,894.99 $1,736,117.13
Deductions $0.00 $0.00 -$1,503,908.00 $1,503,908.00 $0.00 -$37,366.30 $0.00 $1,466,541.70 -$572,383.70
Balance $23,715,386.80 $23,715,386.80 $21,397,871.58 $2,317,515.22 -$80,712.23 -$37,366.30 $0.00 $2,199,436.69 $22,730,048.43
Paid to Date $22,259,206.70 $22,259,206.70 $22,259,207.45 -$0.75 $22,259,207.45
Balance (Excl GST) $1,456,180.10 $1,456,180.10 -$861,335.87 $2,317,515.97 $470,840.98
GST $145,618.01 $145,618.01 -$86,133.59 $231,751.60 $47,084.10
Balance (Incl GST) $1,601,798.11 $1,601,798.11 -$947,469.46 $2,549,267.57 $517,925.08
Certified Amount this Payment Schedule $1,601,798.11 $1,601,798.11 -$947,469.46 $2,549,267.57 $517,925.08
Adjudicated AmountItem Description
Payment Claim Payment Schedule Conceded by
Claimant in
Application
Conceded by
Respondent in
Response
Conceded by
Claimant in Reply
Contested in
Adjudication
122 | P a g e
APPENDIX C – CONTENTS OF CLAIMANT’S REPLY
123 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
FOLDER 1
Covering Letter & Index Explanatory Only
TAB I Submissions
1-22 Jurisdiction submissions on what I can
considerYes n/a n/a n/a n/a n/a n/a n/a n/a
I shall consider it - JurisdictionalNone
23-25 Examples Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
26-28 Example 1 - EOT Claims Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
29-30 Example 2 - Defective Works Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
31-33 Example 3 - Date of Practical Completion Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
34-35 Example 4 - Respondents statements Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
36-39 Entitlement before reference date
Yes Yes Yes Yes Yes No Unknown No Yes
I shall consider it - Jurisdictional and I note - the payment schedule
merely says there is no entitlement before the reference date (which it
says is the date of practical completion certified by the Superintendent).
It then provides all of the reasons / law as to why it came to that
conclusion for the first time in the Response. It says "BCIPA requires
the adjudicator " and then proceeds on the basis that it is correct. It
provides the Claimant with no basis upon which that statement is made.
It is not sufficiently particularised so as to apprise the Claimant of what
it means.
None
40-41 Invention of categories of program clause
33.2
Yes No Yes n/a n/a n/a n/a n/a Yes
I shall have regard for these submissions. I cannot locate a reference to
clause 33.2 in the payment schedule in relation to the 7 time based
claims. It is raised by the Claimant in its application at [67] and thus the
Respondent has replied to it. In replying it says the program in the
contract is different to that bound into the contract document. It also
refers to the various programs by category to demonstrate its point. As
this is a submission as the contents of the contract which is at the heart
of my jurisdiction, I shall have regard for the submissions.
None
42 Conceded EOT's
Yes n/a n/a n/a n/a n/a n/a n/a No
I have already decided under the heading "Adjudication Response –
Expert’s Reports" that any submission in the claimant's reply which
replies to the Respondent's expert report from Timothy Ash of TBH is a
properly made submission. I shall consider it - Jurisdictional. I accept
that any submission where a party concedes a previously held position is
one where the parties now agree and that agreement becomes part of
the contract between them. My jurisdiction is founded in the contract
and hence such a concession is s jurisdictional submission.
None
43-53 EOT 10 & EOT 15
No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ", I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
54-56 EOT 70
No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ", I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
57-59 EOT 91
No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ". I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
124 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
60-61 EOT 104
No Yes Yes Yes Yes Yes Perhaps Yes Yes
I shall have no regard for these submissions. At [436] of the payment
schedule, the Respondent deals with concurrency in EOT104. I am
satisfied it may expand upon the existing reason in its adjudication
response and therefore any submission on it in the claimants reply is not
a properly made submission.
60-61
62-64 Delay Costs
No Yes Yes Yes n/a n/a Perhaps Yes Yes
I shall have no regard for these submissions as they are a further non-
jurisdictional submission made on behalf of the Claimant, which is not in
reply to a new reason for withholding. It is not properly made61-64
65 Variations
(a)
Variation 16
Yes n/a n/a n/a n/a n/a n/a n/a n/a
I shall consider it - Jurisdictional. I accept that any submission where a
party concedes a previously held position is one where the parties now
agree and that agreement becomes part of the contract between them.
My jurisdiction is founded in the contract and hence such a concession is
s jurisdictional submission.
None
(b)
Variation 45
No Yes YesIn the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the email then
No
The payment schedule refers to a previous assessment in an email from
Plascott at 11:55am on the 10th September 2015. In none of the
adjudication response, the claimants reply, the statutory declarations of
Jeanneret-Gris from [260] onwards or the correspondence attached to it
in Volume 4 of the response for September 2015, or the statutory
declaration of Plascott who sent the email; am I directed to that email. It
may be in the voluminous submissions, but I have not been directed to it.
In the absence of it I cannot be made aware by the payment schedule
that the issues upon which the Respondent relies at 11.2 of the response
have been previously agitated and hence I am satisfied the claimant's
response reply to the adjudication response is a properly made
submission.
None
(c) Variation 47 n/a n/a n/a n/a n/a n/a n/a n/a n/a Claimant says there is no new reason. None
66-68 Acceleration Costs No Yes Yes Yes n/a n/a Perhaps Yes Yes
I shall have no regard for these submissions as they are a further non-
jurisdictional submission made on behalf of the Claimant which is not in
reply to a new reason for withholding.66-68
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
125 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
69-70 DefectsI disagree generally with the thrust of the Respondents submissions to
RFFI1 at [83][-87] for the following reasons:None
The Claimant may reply in the claimant's reply as they are not
sufficiently particularized in; or at the time of the payment schedule. I
accept there may be no obligation to issue a defects list under the
contract, however this is a payment claim under the Act where there is
a requirement to provide a payment schedule which identifies the
reasons for withholding with sufficient particularity; in relation to the
date the payment claim is made; so as to apprise the Claimant as to
what the issue is. The amount claimed for a deduction must be for a
particular thing.
I accept that there had been considerable correspondence as to defects
and that there are a considerable number of photographs, but defects
were being dealt with over the period of those emails. Issues which may
have been in a list or on a photo some time ago (even days) is not proof
that the work was not rectified at the time of the payment claim. If a
deduction is to be made it has to identify the work and what it cost, not
identify that in the past there were defects. That nexus between cost
and work was not made in the payment schedule, but in the adjudication
response.
69(c)No links to notices or proof that the
works are defectiveNo Yes Yes Yes No No Probably No No
I shall consider these submissions. The reason given in the payment
schedule did not particularise the defects with sufficient clarity for the
Claimant or address them in its application. In particular it simply says
they are defective rather than saying which part of the contractual
requirements e.g. specification or Australian Standard they did not meet.
None
69(d) Cost of making good No Yes Yes Yes No No Probably No No
I shall consider these submissions. The adjudication response is the first
place where there has been made a link between the costs claimed and
a particular defect. None
70 Comment Only No n/a n/a n/a n/a n/a n/a n/a n/aI shall have no regard for these submissions. Submission not in reply to a
new reason. 70
71-72 The Date of Practical Completion
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission is not in reply to
a new reason. The information provided by the Respondent is in reply to
the adjudication application and is not beyond the scope or ambit of it. 71-72
73 Liquidated DamagesNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason73
74 Structure of Reply n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
75 Reply to section 1-3 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
76-85 Reply to section 4.1 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
86-90 Reply to section 4.2 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
91 Reply to section 4.3 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
92-93 Reply to section 4.4 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
94 Reply to section 4.5 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
95-96 Reply to section 4.6 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional None
97 Reply to section 5.1-5.3 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
98-100 Reply to section 5.4 of responseNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason98-100
101-102 Reply to section 5.5 of responseNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason101-102
103 Reply to section 6.1-6.4 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
No
It is only when the nexus is made that the Claimant could have replied. I
also note that I have seen the schedule of defects attached to the 15th
April 2016 certificate of PC email from Jeanneret-Gris at the back of
Volume 2 of the Adjudication Response. It may pass the contractual test
of identifying things for attention, but in no way does it particularise the
defect work for which the Respondent is withholding funds, that does
not arrive until the adjudication response.
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
YesNo NoYesYes
69(b) Not Particularised
69(a) Not obliged to issue list
NoneNoNoPerhaps
126 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
104-126 Reply to section 6.5 of response Yes n/a n/a n/a n/a n/a n/a n/a n/a I shall consider it - Jurisdictional. See reasons at 40-41 above None
127-135 Reply to section 6.6 of responseNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason127-135
136 Reply to section 6.7 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
137-141 Reply to section 6.8 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason. They are not beyond the scope or ambit of the reasons
given in the Payment Schedule against variation 112.137-141
142 Reply to section 6.8-6.9 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
143 Reply to section 6.10 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
144 Reply to section 6.11 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
145-153 Reply to section 6.12 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason. Clause 46 was raised in the payment schedule against the
delay claims.
145-153
154 Reply to section 7 of response n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
155-156 Reply to section 8 of response
155 Explanation n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
156(a) TBH Report No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ", I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
156(b) McKerrell & Payne Reports No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
McKerrell and Payne under the heading "Adjudication Response –
Expert’s Reports ", I am satisfied that the payment schedule did not
address the issues of a lack of architectural or structural impact from the
façade amendments meaning that there is no delay and hence the
Claimant may respond to it. I note the reference to the declaration of
Curtis at TAB AC below.
None
157 Reply to section 9.1 of responseNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason157
158-218 Reply to section 9.2 of response
158-162 Explanatory n/a n/a n/a n/a n/a n/a n/a n/a n/a Explanatory only None
163-172 Delay Event & Delay Occurring No Yes Yes Barely No No Perhaps No No
Whilst the payment schedule did deal with the issue of clause 35.5, I
accept that the proposition put by the Respondent in its adjudication
response on the interpretation of it, is not what would have been
construed from the payment schedule reference. Therefore the new
construction becomes a new reason for withholding payment.
None
173-190Strict compliance with 35.5 -
InterpretationNo Yes n/a n/a n/a n/a n/a n/a n/a
I shall not consider these submissions. Strict compliance with 35.5 was
specifically stated in the payment schedule. The Respondent is able to
reply to the authorities raised by the Claimant in it application and hence
there is no right for the Claimant to comment further in the claimants
reply. It is not a new reason for withholding.
173-190
191-195 Clause 40.1 No Yes Yes Yes Yes Yes Perhaps Yes Yes
I shall not consider these submissions. Strict compliance with 40.1 was
specifically stated in the payment schedule. There is no right for the
Claimant to comment further in the claimants reply. It is not a new
reason
191-195
196-205 Conduct of the parties No Yes Yes Yes Yes Yes Perhaps Yes Yes
I shall not consider these submissions. As both clause 40 in terms of
compliance with the contract were raised in the payment schedule, they
are not new reasons. I am satisfied the Claimant could have raised the
matter of estoppel in its application. It did not and cannot now make
such a submission in the claimant's reply where there is no new reason.
196-205
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
127 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
206-218 Construction of clauses No n/a n/a n/a n/a n/a n/a n/a n/a
Grindley had the opportunity to make submissions on the operation of
clauses in its application. Unlike 163-172 above, it does not point to
where the Respondent relies on a particular new interpretation but
simply seeks to make a submission. The submission is not in reply to a
new reason and is therefore not properly made.
206-218
219-230 Reply to section 9.3 of response
219-222 Mitigation No Yes Yes Yes Yes Yes Perhaps Yes Yes
Whilst in my assessment of the expert report of Timothy Ash under the
heading "Adjudication Response – Expert’s Reports ", I am satisfied
that the payment schedule did not address the issue of critical delay, it
did address mitigation and hence this is not a new reason it is a further
submission not in reply to a new reason and I shall have no regard for
the submissions..
219-222
223-227 Concurrency No Yes Yes Yes Yes Yes Perhaps Yes Yes
Whilst in my assessment of the expert report of Timothy Ash under the
heading "Adjudication Response – Expert’s Reports ", I am satisfied
that the payment schedule did not address the issue of critical delay, it
did address concurrency and hence this is not a new reason it is a
further submission not in reply to a new reason and I shall have no
regard for the submissions.
223-227
228-230 Critical Path Analysis No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ", I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
231-236 Reply to section 9.4 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. This is a further submission
on the performance of the Superintendent, it is not in reply to a new
reason for withholding payment.231-236
237-247 Reply to section 9.5 of response
No No Yes No No n/a Perhaps No No
For the reasons I have given in my assessment of the expert report of
Timothy Ash under the heading "Adjudication Response – Expert’s
Reports ", I am satisfied that the payment schedule did not address the
issue of critical delay and hence the Claimant may respond to it.None
248-267 Reply to section 9.6 of response
248-255Entitlement to EOT10 & EOT15
Clause 40.1 NoticeNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. At [225] of the payment
schedule the Respondent gives this reason. It is therefore not a new
reason.
248-255
256-267Entitlement to EOT10 & EOT15
Alleged Date of DelayNo Yes Yes Barely No No Perhaps No No
For the same reasons I have given above under 163-172, I accept this is
a new reason and the Claimant may reply. None
268-282 Reply to section 9.7 of response
EOT 15 made out of time. No Yes Yes Barely No No Perhaps No NoFor the same reasons I have given above under 163-172, I accept this is
a new reason and the Claimant may reply. None
283-305 Reply to section 9.8 of response
283-296Reply to section 9.8 of response
EOT 70 Notice under 40.1No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. At [316] of the payment
schedule the Respondent gives this reason. It is therefore not a new
reason.
283-296
297-303Reply to section 9.8 of response
EOT 70 Notice under 40.6No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. At [318] of the payment
schedule the Respondent gives this reason. It is therefore not a new
reason.
297-303
304-305Reply to section 9.8 of response
EOT 70 Strict compliance with 35.5No n/a n/a n/a n/a n/a n/a n/a n/a
For the same reasons I gave at 173-190 above, I shall have no regard
for these submissions. The Claimant does not allege it is reply to a new
reason. The reason is specifically stated at [318] in the payment
schedule.
304-305
306-317 Reply to section 9.9 of response
306-315Reply to section 9.9 of response
EOT 91 Notice under 40.6No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. At [368] of the payment
schedule the Respondent gives this reason. It is therefore not a new
reason.
306-315
316-317Reply to section 9.9 of response
EOT 91 Strict compliance with 35.5No n/a n/a n/a n/a n/a n/a n/a n/a
For the same reasons I gave at 173-190 above, I shall have no regard
for these submissions. The reason is specifically stated at [368] in the
payment schedule.
316-317
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
128 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
318-321 Reply to section 9.10 of response
EOT 103 Strict compliance with 35.5 No n/a n/a n/a n/a n/a n/a n/a n/a
For the same reasons I gave at 173-190 above, I shall have no regard
for these submissions. The reason is specifically stated at [416] & [418]
in the payment schedule.
318-321
322-324 Reply to section 9.11 of response
EOT 104 Strict compliance with 35.5 No n/a n/a n/a n/a n/a n/a n/a n/a
For the same reasons I gave at 173-190 above, I shall have no regard
for these submissions. The reason is specifically stated at [466] & [468]
in the payment schedule.
322-324
325-330 Reply to section 10 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. This is a further submission
and is not in reply to a new reason for withholding payment. 325-330
331-332 Reply to section 11.1 of response
Yes n/a n/a n/a n/a n/a n/a n/a No
I shall consider it - Jurisdictional. I accept that any submission where a
party concedes a previously held position is one where the parties now
agree and that agreement becomes part of the contract between them.
My jurisdiction is founded in the contract and hence such a concession is
s jurisdictional submission.
None
333-345 Reply to section 11.2 of response
No Yes YesIn the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the
email then No
In the absence of the email then
No
I refer to 65(b) above. In the absence of the email and the assessment I
cannot identify where the Respondent has dealt with the matter of the
roofing delay being the cause of the scaffolding being in place for longer.
Therefore the Claimant may make these submissions.None
346-350 Reply to section 11.3 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. This is a further submission
and is not in reply to a new reason for withholding payment. 346-350
351-360 Reply to section 12 of response
No n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. This is a further submission
and admitted by the Claimant as not in reply to a new reason for
withholding payment.
351-360
361-420 Reply to section 13 of response
Liquidated DamagesNo Yes Yes Yes Yes Yes Perhaps Yes Yes
I don’t think the submissions in the adjudication response go beyond the
scope or ambit of the reasons given in the payment schedule. Therefore
I shall have no regard for these submissions.361-420
421-489 Reply to section 14 of response
Defective Works
No Yes Yes Yes No No Perhaps No No
I refer to my decision at 69(a) & 69(b) above. The defects and the cost
of a particular defect were not sufficiently particularized so as to allow
the Claimant to respond at the time of the payment schedule. I repeat,
there is a difference between the contract not requiring a particularised
list and the Act requiring that a Respondent who wishes to make such a
deduction particularise the defect and the estimated cost of rectifying.
The material supplied with the response is beyond the scope or ambit of
the payment schedule. Simply issuing a list of general defects which
does not direct the Claimant where to specifically go; albeit it a long list;
that says and it I estimate it will cost me $149,000 to rectify these
defects, may pass the tests in the contract, but doesn't satisfy the tests in
the Act. Just as a Claimant must particularize its claim such that I can
value it, so does a respondent need to particularise deductions so that I
might value them. I accept it does that in the adjudication response (on
quantum), but it does not do so in the payment schedule and as such the
Claimant may reply.
None
490 Reply to section 15 of responseNo n/a n/a n/a n/a n/a n/a n/a n/a
I shall have no regard for these submissions. Submission not in reply to a
new reason490
491-636 Reply to TBH Report
NoNot with respect to the
critical pathYes No None Given None given Perhaps No No
I have already decided under the heading "Adjudication Response –
Expert’s Reports" that the Claimant may reply to the Respondent's
expert report from Timothy Ash of TBH.None
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
129 | P a g e
Tests from Holmwood
Holdings Pty Ltd v Halkat
Electrical Contractors Pty Ltd
& Anor [2005] NSWSC 1129
at [67] at [68]-[70] at [76] at [77] at [78] at [129]
Question 1 2 3 4 5 8 9 10 11
Is the submission a
jurisdictional submission?
Is there a reason given in
the Payment Schedule on
this matter at all?
Is the submission in
reply to the
Adjudication
Response?
Was the issue in
dispute defined in
the payment
schedule?
Is the reason for
withholding stated
(Qld) with sufficient
particularity in the
payment schedule to
enable the Claimant
to understand in
broad outline what is
the issue?
Am I satisfied the
abbreviated reason
given in the payment
schedule is
understood by the
Claimant and does it
sufficiently apprise
the Claimant as to its
meaning?
Has the issue been
expansively agitated
between the parties
such that I am
satisfied the
Claimant
understands its
meaning?
Am I satisfied the
Claimant was
sufficiently informed
as to the case
opposing it in
adjudication?
Is the additional material in
the adjudication response
within the scope or ambit of
the payment schedule? Does it
support the payment
schedule?
If Yes then it may be made
at any time and once I am
aware of it then I cannot
ignore it.
If No then it is a new
reason, If Yes it may be
one
If No, then it is not a
properly made
submission
If No then any
further information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the
information
constitutes a new
reason
If No then the information
constitutes a new reason
Email Lowe to Jeanneret-Gris 24/4/2015
TPP Report in reply to TBH Report
24/4/2015
Email Lowe to Plascott 7/10/2014
Updated Program
TAB J TPP Report in reply to TBH Report
24/8/2016
TAB AC Stat Dec Curtis
TAB AC1 - AC6 Attachments to Stat Dec Curtis
FOLDER 2
TAB AC7 - AC39 Attachments to Stat Dec Curtis
FOLDER 3
TAB AC40 - AC85 Attachments to Stat Dec Curtis
FOLDER 4
TAB CS Stat Dec Smith
TAB CS1 - CS13 Attachments to Stat Dec Smith
TAB GKL Stat Dec Kirk-Lauritsen
TAB GKL1 - GKL18 Attachments to Stat Dec Kirk-Lauritsen
TAB JS Stat Dec Swinnerton
TAB JS1 - JS7 Attachments to Stat Dec Swinnerton
Detail
(My Precis)Reference
Basic Tests
Decision
Elements of the
claimant's reply to which I
shall have No regard as a
result of this assessment
TAB I-2
TAB I-1
Claimant's Reply
Tests from Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
I will only have regard to this additional information where it is
referenced in submissions I have decided above are those to which I
shall have regard.
n/an/an/an/an/an/an/an/an/a
Those that are not
referenced in submissions I
have decided above are
properly made submissions
130 | P a g e
APPENDIX D – RESPONDENT’S COMPLAINT REGARDING CLAIMANT’S REPLY
131 | P a g e
132 | P a g e
133 | P a g e
APPENDIX E – ADJUDICATOR’S REPLY TO RESPONDENT’S COMPLAINT
134 | P a g e
135 | P a g e
APPENDIX F – CLAUSE 35.5
136 | P a g e
137 | P a g e
APPENDIX G – TIME COMPLIANCE WITH CLAUSE 35.5
EOT Date when becomes evident
to Claimant that anything
may delay
Date of Notification Para 1) Type of Notification Requirement
is "Promptly"
Date of Delaying Event Date of Notification Para 3) Type of Notification Requirement
is 5 business
days Para 3)
Date the Delay first occurs
(affects Critcial Path)
Date of EOT Claim Type of Notification Requirement
is 10 business
days Para 3)
A B B-A
Business
Days
D E E-D
Business
Days
F G G-F
Business
Days
9 Thursday, 30 April 2015 Friday, 1 May 2015 NOD#11 1 Thursday, 30 April 2015 Friday, 1 May 2015 NOD#11 1 Thursday, 30 April 2015 Thursday, 14 May 2015 EOT 9 10
10 N/A - Under para 2) N/A - Under para 2) N/A N/A Monday, 2 February 2015 Monday, 9 February 2015 NOD#8 5 Wednesday, 10 June 2015 Wednesday, 10 June 2015 EOT10 0
14 Wednesday, 17 June 2015 Thursday, 25 June 2015 NOD#12 6 Wednesday, 17 June 2015 Thursday, 25 June 2015 NOD#12 6 Wednesday, 17 June 2015 Thursday, 25 June 2015 EOT14 6
15 N/A - Under para 2) N/A - Under para 2) N/A N/A Monday, 2 February 2015 Monday, 9 February 2015 EOT Register 5 All Updates given in EOT Register Tuesday, 30 June 2015 EOT15 N/A
16 Monday, 29 June 2015 Monday, 29 June 2015 NOD#13 0 Monday, 29 June 2015 Monday, 29 June 2015 NOD#13 0 Monday, 29 June 2015 Tuesday, 30 June 2015 EOT16 1
70 Friday, 18 September 2015 Tuesday, 22 September 2015 EOT Register 2 Friday, 18 September 2015 Tuesday, 22 September 2015 EOT Register 2 Monday, 2 November 2015 Tuesday, 3 November 2015 EOT Register 1
81 Wednesday, 28 October 2015 Tuesday, 3 November 2015 EOT Register 4 Wednesday, 28 October 2015 Tuesday, 3 November 2015 EOT Register 4 Wednesday, 28 October 2015 Tuesday, 3 November 2015 EOT Register 4
82 Thursday, 29 October 2015 Tuesday, 3 November 2015 EOT Register 3 Thursday, 29 October 2015 Tuesday, 3 November 2015 EOT Register 3 Thursday, 29 October 2015 Tuesday, 3 November 2015 EOT Register 3
83 Monday, 9 November 2015 Tuesday, 10 November 2015 EOT Register 1 Monday, 9 November 2015 Tuesday, 10 November 2015 EOT Register 1 Monday, 9 November 2015 Tuesday, 10 November 2015 EOT Register 1
91 Tuesday, 15 December 2015 Tuesday, 15 December 2015 EOT Register 0 Tuesday, 15 December 2015 Tuesday, 15 December 2015 EOT Register 2 Thursday, 21 January 2016 Tuesday, 26 January 2016 EOT Register 3
103 Friday, 12 February 2016 Tuesday, 16 February 2016 EOT Register 4 Friday, 12 February 2016 Tuesday, 16 February 2016 EOT Register 2 Friday, 12 February 2016 Tuesday, 16 February 2016 EOT Register 2
104 Friday, 26 February 2016 Friday, 26 February 2016 EOT Register 0 Friday, 26 February 2016 Tuesday, 1 March 2016 EOT Register 2 Thursday, 3 March 2016 Tuesday, 8 March 2016 EOT Register 3
