DISTRICT COURT OF QUEENSLAND
CITATION:
Wilson’s Plant Hire Pty Ltd v The Pipe King (Aust) Pty Ltd [2017] QDC 29
PARTIES:
WILSON’S PLANT HIRE PTY LTD
(plaintiff)v
THE PIPE KING (AUST) PTY LTD
(defendant)FILE NO/S:
D4989/2015
DIVISION:
PROCEEDING:
Civil trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
17 February 2017
DELIVERED AT:
Brisbane
HEARING DATE:
26-29 September 2016
JUDGE:
McGill SC DCJ
ORDER:
Judgment that the defendant pay the plaintiff $9,955.11, including $1,425.91 by way of interest.
CATCHWORDS:
BUILDING AND ENGINEERING CONTRACTS – Remuneration – whether work within scope of contract – whether extra payable for latent conditions – whether additional work requested – delay – whether damage caused by actions of defendant.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – applied.
Thiess Services Pty Ltd v Mirvac Qld Pty Ltd [2006] QCA 50 – applied.
Watson v Scott [2015] QCA 267 – applied.COUNSEL:
M. J. Thompson for the plaintiff
M. D. Ambrose for the defendant
SOLICITORS:
John Walker Lawyers for the plaintiff
Grants Law Firm for the defendant
The defendant was a subcontractor for the civil drainage and stormwater works for a building being constructed in Railway Terrace, Milton. It entered into a contract with the plaintiff for the plaintiff to do certain work in connection with underground storm water drainage. The plaintiff did some of the work covered by the contract in September and October 2015 but there were difficulties between the parties and the contract was abandoned. There was no issue between the parties as to the circumstances surrounding the termination of the contract, but the plaintiff claims that it is entitled to be paid for work it did under the contract or otherwise at the request of the defendant, and for which it has not been paid.
The trial was on affidavit but there was lengthy cross-examination, and some further evidence in chief, so that evidence extended over most of four days, after which I received submissions in writing. I should record that subsequently in 2016, a number of communications were received by my associate apparently by one of the parties which had not been copied to the other party; these were referred to the Chief Judge, and I have never seen or been told of the content of these communications.
The setting
The new building occupied the end of the block between Manning Street and Walsh Street on Railway Terrace. The existing storm water drainage system collected storm water from Park Road and nearby areas of Milton Road, which was then brought down Railway Terrace as far as Manning Street. That plus the drainage from Manning Street went into a pipe which ran under private land in the block to Walsh Street[1] where there was a drainage pit which picked up a couple of other drains from Walsh Street and Railway Terrace, then a drain took it to the other side of Walsh Street. From this point, one drain ran in the line of Walsh Street more or less directly to the river, while another pipe ran under private land to Crombie Street, then along Crombie Street and under private land beyond McDougall Street to the river.
[1]See affidavit of Wilson filed 14 June 2016, Exhibit RJW-33; affidavit of De Luca filed 23 September (“De Luca (52)”), Exhibit PAD5, drawing CO1; Wilson p 2-55.
The plans for the development showed existing storm water drainage coming along Railway Terrace from Park Road and a substantial storm water drain in Manning Street. As part of the development, this was to feed into a 3 by 1.2 meter box culvert constructed along the southern boundary of the development, which in turn fed into a drainage pit in Walsh Street, identified as pit 4/1. A pipe running from Railway Terrace along Walsh Street also fed into this pit, which was drained by two 1500 mm pipes into another pit, 5/1, also in Walsh Street. The box culvert along the edge of the development site had already been constructed by the time the plaintiff began its work, though it was not connected at either end; the plaintiff’s work included constructing those connections. Evidently, the intention was that this box culvert would replace, and upgrade, the existing pipe running from Manning Street to Walsh Street.[2] It is obvious, even to me, from the storm water layout plan that what was being constructed was not just for storm water drainage from the development site and immediate surrounds, but involved accommodating fairly substantial storm water drainage from elsewhere.
[2]Mander-Jones p 4-49. Mr Wilson’s theory, that it was to function as an onsite water storage faculty during construction, was wrong, although it may have held water while the plaintiff was working nearby: Affidavit of Wilson filed 2 September 2016 (“Wilson (48)”), para 7(c); Wilson p 44.
So far as the plaintiff was concerned, water from pit 5/1 drained via an existing pipe to a drainage pit on the other side of Walsh Street. Mr Wilson appears to have assumed that it drained from there to Crombie Street and then discharged to the river, because Walsh Street rises to the south towards McDougall Street (p 97),[3] but the rise is not very great and there is no reason why that drain could not fall to the river. The Walsh Street drain is much larger than the Crombie Street pipe,[4] suggesting that it is, in practice, the main outlet for the relevant storm water. What matters, however, is that there were two storm water pipes between that pit and the river, either of which was a potential source of water from the river at high tide.
[3]See also Smits p 3-75.
[4]Mander-Jones p 4-34.
The area where the building was to be constructed was relatively low-lying. The bottom of pit 5/1 was designed with an invert level of RL 0.632.[5] During the trial the defendant had a surveyor measure the level of the floor of pit 5/1 as constructed, at RL 0.753.[6] The surveyor also measured the water level at the outlet opposite Walsh Street on 20 September 2016 at what appeared to him to be a high tide, and found that the water had a level of RL 1.047.[7] At about the same time, he measured the top of the water that was present in pit 5/1 at RL 1.073.[8] Hence, when excavating for pit 5/1, the plaintiff was working below high tide level of the river. Of course the surface level was well above high tide, but the pit was over 2.5 metres deep. Mr Wilson’s view,[9] that they were considerably above the high tide level of the river, was unduly optimistic. The surveyor’s evidence was uncontradicted, and I accept it.
[5]Drawing No. 0151; Exhibit 11, para 22. The “invert level” is the lowest point: p 80.
[6]Affidavit of Murphy, para 10; Exhibit LGM1. It is not clear that these RL measurements are directly comparable.
[7]Ibid para 7, Exhibit LGM1.
[8]Ibid para 8, Exhibit LGM1.
[9]Wilson (48) para 7; Wilson p 2-22.
There was also evidence from the defendant that, when excavating the basement for the new building, water would regularly enter the excavation at times which appeared to correspond with high tide, so that it was necessary for work to be staged so as to avoid periods of inundation;[10] the water drained away again once the tide fell: p 3-90. Indeed, the building was constructed so that the basement would have waterproof walls and floor,[11] and even ramps for vehicles into the basement had to rise a certain distance from street level before they peaked and began to slope down to the basement level, to keep out flood water from the street.[12]
[10]Affidavit of Smits para 3, 10 and 11.
[11]De Luca p 2-104; Smits p 3-91.
[12]De Luca p 2-105: no penetration for water below RL6.
The contract
There was no formal contract document executed by the parties. On or about 13 November 2014 the plaintiff was sent an invitation to tender which included a set of plans and drawings as a “tender package”.[13] The email said that the plaintiff was to allow for various things, including bitumen cutting and locating existing services. On 27 November 2014 the plaintiff sent a tender in writing to the defendant to do the work for a stated sum, which was accepted by the defendant on 19 December 2014.[14] There were no detailed terms and conditions incorporated into any of these documents, though the drawings included in the tender package provided to the plaintiff included two pages of “general notes”, some of which are relevant to the matters in dispute. In particular, there was no provision in the contract between the parties for any variation by either party to the work required under the contract.
[13]Statement of claim para 6; defence para 2; affidavit of De Luca filed 29 April 2016 “De Luca (19)”) Exhibit PD1; affidavit of Wilson filed 21 September 2016 (“Wilson (51)”) Exhibit B. There are several copies of the tender package in the material, and I shall refer to the drawings in the package just as drawing number X.
[14]Statement of claim para 6; defence para 2; Wilson (51) Exhibit D.
It follows that the plaintiff can have no entitlement under the contract to any payment for any work not covered by the contract which it was required to undertake by the defendant. If such a situation arose, the plaintiff could only recover if it could show a variation to the contract, or an entitlement to be paid on a quantum meruit. There was also no qualification to the tender price in relation to additional costs associated with “latent conditions” i.e. unexpected conditions underground. On the face of it therefore the plaintiff was bound to do the contract works for the contract price even if unforeseen conditions made it more difficult and expensive,[15] at least unless the situation came within the scope of the doctrine of frustration, which was not relied on, I think correctly.
[15]Thiess Services Pty Ltd v Mirvac Qld Pty Ltd [2006] QCA 50 at [34], [54].
The plaintiff’s claim
The plaintiff alleges that the parties subsequently agreed to some contract variations or, pursuant to the subcontract, the plaintiff varied the contract in respect of a number of matters. As I indicated, there was no express provision in the contract for either party to vary it with any defined consequences. It was submitted for the plaintiff that it was not necessary in the written agreement to make reference to variations to enable the plaintiff to succeed on this basis (para 9) but no authority for that proposition was cited, and it is contrary to the general proposition that one party to a contract cannot unilaterally vary it.[16] In the alternative, the plaintiff claims that the work the subject of the pleaded variations was carried out by the plaintiff at the request, express or implied, by the defendant. The defendant took the benefit of the work so that the plaintiff was entitled to reasonable remuneration for that work on a quantum meruit.
[16]Bailey & Bell “Construction Law in Australia” (3rd Edition, 2011) p 231.
For practical purposes, I do not think I need to decide whether any entitlement of the plaintiff arose on the basis of a variation to the contract, or in quantum meruit. What matters is whether the plaintiff was required or requested by the defendant to do the work, on the basis that it would be paid for. There is no evidence that there was ever any agreement on a particular amount of payment for any particular “variation,” so the plaintiff’s entitlement, if any, is to be paid reasonable remuneration for the particular work done in each case. In those circumstances, the practical issues are whether the work the subject of each particular claim was work the plaintiff was required to do under the contract anyway, and if not, whether the defendant expressly or impliedly requested the plaintiff to do that work in circumstances giving rise to an obligation on the part of the defendant to pay reasonable remuneration for that work.
Apart from these claims, the statement of claim also alleges that the defendant was in breach of its duty of care not to discharge or permit the discharge of water from the construction site which occurred on certain days in September and October 2015 and which caused delay and expense to the plaintiff. The defendant, in response to this claim, among other things, pleaded a factual defence which is specific to the proposition that it carried out water pressure pipe testing at the construction site in September and October, by alleging that the water so used was discharged into the sewage system, rather than into the storm water drains and thus into the plaintiff’s works. There was uncontradicted evidence to this effect from the defendant,[17] which I accept, but on its face the plaintiff’s pleading is not confined to the discharge into its works of water which had been used to carry out water pressure pipe testing at the construction site. There are, however, other defences raised which I will consider later.
[17]Affidavit of Smits para 12-16; affidavit of Curcio para 11 and 12; De Luca (52) para 79-81.
Although the submissions in reply alleged that the drawings provided in the tender package were not suitable for the construction of the contract work, there was no claim pleaded in the statement of claim of negligence in the preparation of the drawings in the tender package, or that they involved misleading or deceptive conduct by the defendant. It is true that the various drawings, in particular, the ones relevant to the construction of the plaintiff’s work, were marked “issued for approval, not to be used for construction”.[18] However, the defendant invited the plaintiff to tender for certain works in accordance with those drawings, and the plaintiff did tender for the works on that basis, which tender was accepted. On the face of it, that gave rise to a contract to complete the works in accordance with those drawings, whether or not the person who drew them intended that they were used for construction.[19] It would have been open to the plaintiff to tender on the basis that it be provided with “for construction” drawings which were not materially different from the drawings in the tender package, but it did not do so, and in fact it embarked on the work.[20] In those circumstances I do not think that the plaintiff can complain about the fact that the drawings were marked “not for construction”. There is also the consideration that the general notes in the drawings said, among other things: “If there are doubts regarding civil design, contact the engineer for clarification.”[21]
[18]All drawings in the tender package were marked “Issued for Approval” except Drawing 150, marked “issued for information”, and Drawing 180 marked “Issued for Construction”, the latter not relevant to the action.
[19]There was some evidence that “for construction” drawings were subsequently issued, but the defendant appears to have proceeded on the basis that there was no meaningful difference between those drawings and the ones in the tender package, and no copy was ever provided to the plaintiff: De Luca p 3-47.
[20]Despite what is stated in Wilson (51) para 22, the tender did not make the provision of “for construction” drawings a condition of the tender, although it did quote on the basis that the defendant was “to supply all survey set out and as constructed information.”
[21]Drawing 0121, heading General, para 10.
Variations 1-3, 16.
These were referred to in the statement of claim as the “bitumen variation”. In substance, the plaintiff’s allegation was that the tender documents showed a bitumen depth of a maximum of 50 mm in the vicinity of the site, but when the plaintiff came to do the work it emerged that the depth of the bitumen on the road to be opened for the plaintiff to do work under the road was in the order 150 mm, which put the plaintiff to extra expense. It is true that there is a reference to a 50 mm depth for pavement on drawing 0126, but this is a reference to the depth of asphalt required for new pavement, not a reference to the depth of the existing pavement. These are three details on drawing 0126 for new pavement, depending on whether the new surface is more than 50 mm below the existing surface, less than 50 mm below the existing surface, or above the existing surface. Mr Wilson’s interpretation of the drawing[22] was wrong. It does not appear to me that there is anything in the material provided by the defendant which indicated that the existing bitumen had a maximum depth of 50 mm.[23] Paragraph 8(a)(i) of the statement of claim has not been proved. I accept that until the road is opened it is not possible to know what the depth of the existing bitumen is, and that there is additional work and cost involved if the bitumen is 150 mm thick rather than 50 mm thick. Nevertheless, the plaintiff offered in its written tender to do (among other things) “all road sawing as required” and it therefore accepted the risk that the amount of road sawing required would be more extensive than it had anticipated.
[22]Wilson (51) para 45; Wilson p 1-22.
[23]I accept the evidence of Mr De Luca to that effect: De Luca (52) para 32-34.
Overall, I am not persuaded that this work was not work required under the contract, or that the plaintiff is entitled to any additional remuneration on any basis as a result of the existing pavement being thicker than it had anticipated. This part of the plaintiff’s claim fails.
I should however, on a precautionary basis, say something about the quantum of the plaintiff’s claim, which as pleaded came to $2,590.85 plus GST.[24] Variation 1 claimed an additional $20 per metre for cutting 25 linear metres of asphalt; however, in the documents supporting Variation 1, there is a tax invoice from a concrete cutter indicating the amount in fact charged was $210 plus GST.[25] The plaintiff cannot claim more than the actual cost to it, even assuming that no concrete cutting would have been necessary had there been only 50 mm of asphalt. The plaintiff also claimed an extra hour for an excavator and an extra 2.5 hours for a tip truck, two labourers and the supervisor. This was disputed on the basis that this did not involve concrete cutting, but the plaintiff’s argument was that there was additional cost involved because the work was slowed down while concrete cutting was arranged and undertaken, which is reasonable.
[24]Statement of claim para 8(a); other claims are said to be particularised in a spreadsheet, Exhibit RJW22 to affidavit of Wilson filed 15 April 2016 (“Wilson (8)”) which was not read. It in fact contains particulars of variations 1, 2, 3 and 16 also, and I will act on them.
[25]Affidavit of Russell filed 15 April 2016 (“Russell (9)”) Exhibit SVR1 p 2.
There was also a claim for the cost of hiring a site toilet, site fencing and the two steel plates for covering the excavation at night,[26] for which 0.6 of a day was claimed. In theory if it takes longer to do the work, this will lead to extra cost for everything which is being paid for on a time basis, so on principle these are also recoverable, but there seems to be some inconsistency between claiming 2.5 hours for the other things and 0.6 of a day for these things. In view of the entry in the day book,[27] I allow 2.5 hours, or 0.3 of a day, for this delay.
[26]Wilson p 2-18.
[27]Russell (9) Exhibit SVR2 p 414.
There is also a problem that the rates claimed in the schedule are not generally the rates in the documents supposedly supporting the variation.[28] According to those documents, the hourly rate (in all cases plus GST) for the excavator was $110, for the tip truck $80, and for the fencing and the steel plates $7.40 and $100 a day. The cost of two employees from a labour hire company, presumably the labourers, was $37.80 per hour for ordinary time, and Mr Wilson charged $109 per hour for acting as a supervisor.[29] There was also a claim for the disposal of the asphalt, and a document showing quarry fees of $35 per cubic metre for dumping asphalt, but another document from the plaintiff tabulating tip fees does not include any amount paid for dumping asphalt.[30] For specific costs, I allow $1,016.06, plus GST.[31]
[28]Ibid Exhibit SVR1 pp 2-16.
[29]Ibid pp 3-15.
[30] Ibid pp 8, 9. Exhibit SVR2 p 414 records tip fees of $100 for that day, but there would have been spoil to tip anyway.
[31]$210 + $110 + $200 + $2.22 + $30 + $189 + $272.50 + $2.34.
Apart from the specific costs, the plaintiff claimed a further 20 per cent for administration costs, and then 15 per cent of the enhanced total as profit. This seems a large claim, particularly given the claim for Mr Wilson personally as a supervisor, since the only other person involved in administration as far as I could tell on the evidence for the plaintiff was his daughter.
In relation to quantum, I also had evidence from two quantity surveyors. The plaintiff put in evidence a report from Mr Carey who had reviewed the variations prepared by the plaintiff, spot checked rates and other documents and expressed the view that they represented a fair valuation in respect of the work claimed, noting that they included administration at 20 per cent and a margin at 15 per cent, and expressed the view that the report was a true picture of the situation.[32] He also prepared another report, specifically supporting the loadings of 20 per cent and 15per cent: Exhibit 9.[33] On the other hand, I had a report from Mr Ross on behalf of the defendant (Exhibit 5) and he would have allowed, in respect of this variation, $100 for saw cutting plus profit and administration of 10 per cent, but nothing for the other costs on the basis that the work was no different if the cut was set at 150 mm rather than 50 mm. That is not an answer to the plaintiff’s point that, had the depth been only 50 mm, it would have been possible to remove the asphalt without the use of saw cutting.
[32]Wilson (51) Exhibit F.
[33]Also at Ibid Exhibit L, although this was not identified during the trial: p 3-20.
I was generally not impressed with Mr Ross as a witness;[34] he seemed to me to be too willing to reject the plaintiff’s claims on a superficial basis, and appeared to be focusing on minimising any liability of the defendant rather than providing independent objective assistance to the court. For example, he rejected claims for the costs associated with delay to the work on the basis that the contract work was not completed: p 4-45. I also found more errors in the detail of his assessment than I would expect. On the other hand, Mr Carey’s initial letter was superficial to the point where he failed to detect any of the numerous discrepancies between the detail of the claims and the supporting documents. In oral evidence, he said that all he had been asked to do was to check whether the margins were correct, fair and reasonable: p 3-18. He did not go through the schedule line by line: p 3-23. He may not have had access to all the material exhibited to Ms Russell’s first affidavit.
[34]See Ross p 4-40.
Mr Carey said that he would expect the margins to be higher for a contract of this nature, which is a relatively small contract being conducted in difficult circumstances: p 3-19; Exhibit 9. Mr Carey sounded quite dismissive of the suggestion of a 10 per cent margin overall, saying that no contractor would work for that, in a way which sounded quite convincing: p 3-27, p 3-29. On the other hand, the plaintiff’s claim still seems high, particularly in relation to the 20 per cent for administration. At one point, Mr Carey mentioned a distinction between onsite costs and offsite costs, and cited as examples of onsite costs “foreman, insurances, workplace health and safety, craneage” p 3-25. Here the supervision was provided by Mr Wilson and there was a separate claim for his time,[35] there was no craneage provided by the plaintiff, and to the extent that additional time was spent with other equipment, it was charged for. Although there were workplace health and safety considerations for the site, it is not obvious that they would have been greatly increased just as a result of this saw cutting work. I suppose insurance was a time-based cost. Mr Carey did indicate however that there were other items.
[35]The only other person on site involved in “administration” was Ms Russell: p 2-17.
On the whole, I do not think that the circumstances of this particular contract justify what Mr Carey acknowledged was a high percentage loading: p 3-19; Exhibit 9. Doing the best I can I allow 25 per cent loading to cover administration and profit. On that basis, my assessment of quantum for Variation 1 comes to $1,270.07, plus GST.
Variation 2
This variation in fact covered the cost of cutting into and demolishing pipes which were discovered in the course of excavation which were said to be not on the plan for pit 5/1. Specifically, it involved cutting pipes of 1050 mm, 850 mm and 375 mm diameter. It has nothing to do with the state of the bitumen and is therefore unsupported by anything alleged in paragraph 8(a) of the statement of claim. The plaintiff’s case here was in fact that the drawings did not show these pipes; specifically drawing 0157, showing the construction of drainage pit 5/1, showed only the two new 1500 mm pipes coming in from pit 4/1, and a pipe, the diameter of which was not identified, but which in fact was the outlet pipe to be connected into the proposed structure. The drawing refers to the fact that in the future another pipe is to be constructed by others. Drawing 151, also referred to (p 29), also shows only new pipes, as its function is to show the depth and slope of new works.
On the other hand, drawing 0150 shows a number of existing services, including existing stormwater drains, running into the drainage pit on the site of pit 5/1.[36] There was a pipe running from drains in the vicinity of the intersection of Railway Terrace and Walsh Street, which was essentially to be replaced by a new pipe running into pit 4/1. There was a pipe running along Walsh Street in the opposite direction. There was a pipe running in from an existing curb gully located on the west side of Walsh Street between this site and the site of pit 4/1. There were two other existing pipes shown running into that pit from the direction of the west side of Walsh Street; one of these was in fact the pipe which ran through from Manning Street referred to earlier, though that was not obvious from the plan. Finally, there was the outlet pipe running across Walsh Street to the other drainage pit.
[36]They appear more clearly on a marked, enlarged copy of part of this drawing which is the last page of Exhibit PAD5 to De Luca (52).
The plans indicate that the pipeline from the north in Walsh Street will eventually be replaced by a new pipe to run into pit 4/1, but obviously there will be an existing service to maintain until that occurs. The pipe from the existing gully in the curb was marked “connect existing gully into 1500 mm pipe” on drawing 0150, so that was to be continued; nothing specific was indicated about the other existing pipes. In fact the pipe running from Manning Street was to be replaced by the box culvert, though that would not be apparent from these drawings, and it would be essential to keep that pipe in operation until the new works were in place to replace it.
The notes on drawing 0121 include under the heading “Stormwater Drainage Notes”:
“5. Existing stormwater pipe locations and invert levels to be confirmed prior to commencement of construction.
…
15.All existing stormwater drainage lines and pits that are to remain are to be inspected and cleaned. During this process, any part of the stormwater drainage system that warrants repair shall be reported to the superintendent and engineer for further direction.”
There was also a requirement to comply with BCC standards in various respects.
Under the heading “Existing Services and Features” it was said, among other things:
“1. The contractor must confirm the exact location and extent of existing services prior to construction and notify any conflict with the drawings immediately to the engineer/superintendent.
2.Existing services unless shown on survey plan had been plotted from services search plans and as such their accuracy cannot be guaranteed.
3. It is the responsibility of the contractor to complete a ‘dial before you dig’ search and to establish the location and level of all existing services prior to the commencement of any work. Any discrepancies shall be reported to the engineer/superintendent….
…
5. The contractor shall allow for the capping off, excavation and removal or relocation (if required) to relevant authority’s guidelines of all existing services in areas affected by works….”
Insofar as there were existing drainage pipes running into the drainage pit that was to be replaced by pit 5/1, although these were underground they were ascertainable by an examination of that existing drainage pit, which was fitted with a manhole.[37] The invitation to tender instructed the plaintiff to do so on the basis that it was responsible for locating existing services, as noted earlier.[38] Mr Wilson acknowledged that he had seen the manhole during an inspection, but did not look inside it: p 81. The difficulty here for the defendant is that there is some inconsistency between the two drawings, and it is not clear what is to be done with all the existing pipes. There is nothing on drawing 0157 to indicate that any pipes are to run into pit 5/1, other than the two new pipes to be constructed under the contract running from pit 4/1.
[37]Mr Wilson said this was done after the contract was entered into: p 31. He had not expected what was found: p 81.
[38]Mr Wilson said he would generally confirm existing pipe locations from BCC drawings: p 86.
The issue is not without difficulty, but on balance I consider that the correct interpretation of the contract,[39] and particularly the tender bundle, is that the drawings of pit 5/1 in drawing 0157 were not a comprehensive drawing of all pipe connections required for that pit; rather their function was to show the new pit generally, and how the new services, specifically the two new pipes, were to run into the pit.[40] No attempt has been made on that drawing to show what was happening to any other existing services, notwithstanding the presence of a number of existing services on drawing 0150. Further, the one existing pipe which was shown, the drain from the pit, was shown without any detail. I consider the more reasonable inference is that, as indicated by the general notes and the request for tender, it was a matter for the contractor to identify the precise location of the storm water drains running into the existing pit, and make provision for them. Accordingly, the location and cutting of existing pipes was work required under the contract, and did not give rise to a claim for any “variation”; that is to say, this was not a situation where the defendant required the plaintiff to do work not covered by the contract. The claim for Variation 2 fails for this reason also.
[39]Applying Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[52]; Watson v Scott [2015] QCA 267 at [30].
[40]Curcio p 4-84, 85, which sounds plausible despite my strong reservations about the witness.
In relation to quantum, the claims are similar to those for Variation 1 and essentially suffer from the same deficiencies, so the analysis can be much shorter.[41] The specific claim for the pipe cutter was $200 for his work, plus GST, as is the case with all the other amounts. On this day, there were the same costs for delay as in Variation 1, and again sometimes 3 hours were claimed and sometimes 0.6 of a day or some other period; I allow 3 hours or 0.4 of a day for the delay. There was a second excavator which had a rock breaker, for which a total of $150 per hour was charged, three labourers and otherwise the same costs as in Variation 1. There was a claim for dump fees, but again only clean fill was charged for, and there would have been clean fill anyway, so it is not shown that this charge has been inflated. For specific costs of Variation 2, I allow $1,733.28. With the 25 per cent loading for administration and profits, that comes to $2,166.60, plus GST.
[41]See particulars Wilson (8) Exhibit RJW22 p 2; supporting documents Russell (9) Exhibit SVR1 pp 18-30; day sheet ibid Exhibit SVR2 p 415.
Variation 3
This variation in fact covered the cost of providing shotcreting to the sides of the excavation for drainage pit 5/1; it also has nothing to do with the state of the bitumen, and is also unsupported by the pleadings. The plaintiff’s case for this variation was that the shotcreting had become necessary because of all the extra pipes leading into the existing drainage pit, each of which had been, in accordance with the usual practice, surrounded by a quantity of sand or gravel. Hence when digging the pit the walls were much less stable than was usually the case, with the result that shotcreting was necessary in order to stabilise the walls, which would not have been necessary had the extra pipes not been there: p 35. The claim therefore is, in substance, similar to the claim in Variation 2, in that it is based on the proposition that the defendant has to pay all costs associated with the presence of existing pipes because there were no existing pipes shown on the drawing for pit 5/1 in plan 0157. For the reasons I have given in relation to Variation 2, I reject that argument, and that means the claim in Variation 3 also fails.[42]
[42]I need not consider whether it also fails for other reasons.
In regard to quantum, on a precautionary basis, again there are the usual discrepancies, including in this case a number of documents exhibited to the affidavit as documents supporting Variation 3 which are not reflected in the schedule giving particulars of Variation 3.[43] It appears from the day book that, apart from pumping some water out of the pit and cleaning it up, nothing was done on this day except the shotcreting, so effectively one day’s work was lost in this way. The actual cost of the shotcreting was $1,800 charged by the shotcreting contractors, plus the cost of concrete which was $691.23 and the cost of reinforcing which is difficult to identify from the material available but I would allow the sum of $240 as claimed, in all cases plus GST. There seem to have been three labourers plus Mr Wilson working that day, and his daughter, but I think the cost of her should be included in the administration loading, and it seems they only worked for 6 hours. I would allow a full day for the steel plates, the toilet and the fencing. Accordingly, specific costs come to $4,180.83, which with the 25 per cent loading becomes $5,226.04 plus GST.
[43]See particulars Wilson (8) Exhibit RJW22 p 3; supporting documents Russell (9) Exhibit SVR1 pp 32-45; day sheet ibid Exhibit SVR2 p 416.
Variation 16
This variation does relate to bitumen, to cutting the bitumen in connection with the excavation between pit 5/1 and pit 4/1, where the plaintiff was to lay two 1500 mm concrete pipes. Apart from the fact that this covers a separate excavation and hence a different area of concrete cutting, the analysis is the same as for Variation 1, and for the same reasons this claim also fails.
In relation to quantum,[44] the actual concrete cutting was done by a subcontractor who charged $650 plus GST. That amount is recoverable, by analogy with the reasons in relation to Variation 1. It is not obvious why the claim is more than twice this amount. There is also a claim for a quantity of 20 mm gravel, the need for which is not apparent to me and was not substantiated by evidence, and is disallowed, as it was by the defendant’s quantity surveyor. There were also claims for hire of two crane trucks; apparently this was the cost of bringing something to the site which was capable of removing the steel plates from the work site at the beginning of the day, and putting them back at the end of the day. It seems to me that these costs would have been necessary anyway even if the bitumen could have been lifted without cutting, and I do not allow them. The other costs claimed are for 0.3 of a day for renting the fence and renting the toilet and, consistently with my reasons in relation to Variation 1, I would allow these amounts, for 0.3 of a day. It strikes me as a little odd that there are no claims for labour, for excavating the extra asphalt and for the extra cost of tipping it under this variation but the plaintiff is confined by its pleadings which incorporates one of the schedules, and the evidence does not quantify any such amounts. Accordingly the specific costs in relation to Variation 16 come to $684.68, which with the 25 per cent loading for administration and profit comes to $855.85 plus GST.
[44]See particulars Wilson (8) Exhibit RJW22 p 14; supporting documents Russell (9) Exhibit SVR1 pp 225-235; day sheet ibid Exhibit SVR2 p 429.
Variations 4, 5, 6 and 7
These were referred to in the Statement of Claim as the “soft ground variations.” Evidently, when the hole was excavated for the construction of drainage pit 5/1, the material at the base of the hole was regarded as unsuitable as a foundation for the construction of the concrete drainage pit. It is agreed by the defendant that the contract was varied to include additional work with respect to insufficient load-bearing capacity under this pit.[45] According to the defence, it was agreed that gravel would be placed on the ground as a temporary solution, and on 25 September it was agreed that there would be a further 500 mm excavated in the hole, to be filled with compacted crushed rock, except for at least 100 mm of road base on top of the compacted rock.[46] This was accepted by the plaintiff in the reply para 7(a), although it was alleged that there were further agreements in the month of October.
[45]Defence para 5.2(a).
[46]Defence para 5.2(d).
The issues, therefore, in relation to these variations are whether all of the work claimed by the plaintiff was within the scope of the variation, and whether the plaintiff’s claim reflected reasonable remuneration for the work done. I should mention that the contemporaneous documentation in relation to these claims refers to the excavation of “marine mud”. Evidently, the parties at the time thought that this was the soft material which had to be excavated further to provide a proper foundation for the drainage pit.[47] By the time of the trial, the plaintiff asserted that this material was not marine mud, but just soft soil. Indeed, the plaintiff asserted that this was material which was washed into the pit as a result of the inflow of water into the pit, for which the plaintiff held the defendant responsible.[48]
[47]Wilson (48) para 4: Wilson p 48. It was not marine mud: Exhibit 3.
[48]Wilson (51) para 55, 56. This was on the basis that the water running through the excavation softened the clay: Exhibit 3.
The defendant’s director said that the problem was soft ground,[49] but agreed that after an inspection by the engineer and the builder, work was suspended for three days, and a modified design was prepared by the engineer which was sent to the plaintiff, and in a conversation the plaintiff was asked to do the work and agreed to do so.[50] Mr De Luca agreed that the work was additional to the contract price “as was the time delay caused.”[51] I should say I interpret this as a statement that the work was in fact suspended for three days, not that, as soon as the problem arose, the plaintiff was told not to do any work for three days. In fact, it is apparent that some work was required as a temporary measure, placing gravel at the bottom of the excavation, while the permanent solution was worked out by the engineer.
[49]De Luca (19) para 29.
[50]Ibid para 30–33.
[51]Ibid para 34.
The sequence of events is revealed in the plaintiff’s day book.[52] The day sheet for 21 September indicates that excavation at the base of pit 5/1 proceeded, acid sulphate soil was encountered and had to be removed for a depth of approximately 400 mm. Evidently, this was the detection of the problem which led to the site meeting, but that occurred the following day, 22 September, as shown by the day sheet for that day. The delays on 21 September were said to be:
“Half the day lost due water – tidal and other delays on project due to marine mud and acid sulphate soil.”
[52]Russell (9) Exhibit SVR2 pp 417-422.
Variation 4
Variation 4 is said to relate to 21 September 2015. The instruction to cease work following the site meeting and the instruction to do additional work by way of ground preparation were responsive to what was found this day, rather than anything which caused either delay or additional work on this occasion. Further, the temporary solution, of putting gravel at the base of the pit, could not have been done on this day as the instruction to do it was said to have arisen out of the site meeting on the following day. The additional work done on this day was an additional 400 mm excavation, which the plaintiff must have done on its own initiative, but which was consistent with the additional work later requested, and the defendant, in response to the variation claim for this day, accepted $2,479.26.[53] : Exhibit 5 p 21. None of this was allowed for the supply and placing of gravel, which in fact was done the following day, but otherwise it appears that this claim was accepted as claimed, even to the point of allowing half a day for the steel plants, toilet and fence, which seems reasonable, although the rates for these were adjusted. Applying the rates for them I have adopted, therefore, of $115.20 per day, I would allow $57.60, which increases the otherwise accepted amount to $2,285.09, which with the loading I would allow comes to $2,853.36, plus GST
[53]Exhibit 5 p 21. This was plus GST, but allowed a loading of only 10%. The pre-loading figure was $2,253.87: Exhibit 5 Appendix 2 p 1.
Variation 5
Variation 5 related to 22 September, when there was the site meeting, and when according to the claim, the plaintiff supplied and placed 20 mm aggregate, and also a quantity of no-fines concrete in the pit. Mr Wilson said that after putting the gravel in the pit, they spread some no-fines concrete over the floor, and used it to cover the walls as far as they could to prevent mud from being washed into the pit and hence down the drains, to avoid environmental problems: p 36.
On the face of it, the plaintiff’s use of the no-fines concrete was its own idea. Whether or not it was a good idea in the circumstances, if the plaintiff used no-fines concrete in such a situation upon its own initiative there is, I think, no clear basis on which it can expect the defendant to pay for this, as there was no evidence that the defendant instructed or requested the use of the no-fines concrete. However, there was no particular issue made about this during the trial, and the defendant’s quantity surveyor allowed for the cost of supplying and placing the concrete, except that he only allowed 1m of concrete rather than 1.6m.[54] The reason for this deduction is not apparent, since the supplier’s invoice shows that 1.6m was supplied, at a cost excluding GST of $370.40, which has been allowed by the quantity surveyor.[55] The amount claimed by the plaintiff for this item, $407.44, is incorrect, since that is the amount including GST, though it is described as the “value complete excl GST,” which throws out the rest of the plaintiff’s calculations.[56]
[54]Exhibit 5 Appendix 2, p 2.
[55]Russell (9) Exhibit SVR1, p 61.
[56]Wilson (8) Exhibit RJW22, p 4.
For the supply of gravel, the plaintiff claimed $360 for five cubic metres, and the defendant’s quantity surveyor has allowed $325 for that volume. The figure of $360 is recorded in the plaintiff’s day sheet, and there is a docket from the supplier that is difficult to read, though it indicates $650 was paid for drainage gravel and $69 for something else, including GST.[57] Evidently, 10 cubic metres was in fact supplied, but the $69 may be a delivery fee; 5m is noted on the docket as being delivered, and $69 was allowed on this basis by the quantity surveyor. I think that essentially the figure of $360 was arrived at by roughly halving the invoice, which would be correct if the $69 was for delivering all of it, but the real difficulty with this item is that it is inclusive of GST; the GST exclusive amount is $327.27, which I allow.
[57]Russell (9) Exhibit SVR1, p 62.
The defendant’s response to the labour claim of 9 hours each for Mr Wilson and three others was to accept it as claimed except that the time was reduced to 8.5 hours. The defendant’s quantity surveyor would have allowed 9 hours.[58] In the circumstances, I will allow the labour claims as claimed.
[58]Exhibit 5 Appendix 2, p 2.
There was also a tip fee of $150 claimed which was allowed by the defendant’s quantity surveyor at $100. That is the figure stated in the day sheet,[59] although a schedule of tip fees annexed to Ms Russell’s affidavit shows $150 for that day.[60] I assume the schedule was based on the information on the day sheets, and there was an error in transcription, and allow $100 for the tip fee.
[59]Russell (9) Exhibit SVR2, p 418.
[60]Ibid Exhibit SVR1, p 63.
The plaintiff also claimed a 10m tip truck for 7.5 hours and an eight tonne excavator for the same period, but the dockets in Ms Russell’s affidavit show that the plaintiff was charged for $375 for 5 hours for the tip truck and $990 for 5 hours for the excavator. These figures do not match either the amounts claimed by the plaintiff or the amounts allowed by the defendant’s quantity surveyor, though the latter appears to have accepted what I regard as the correct hourly rates, but fixed different periods, for reasons not explained. In my opinion it is appropriate to allow the specific costs as shown by the invoices.
There was also a further claim for labour for one supervisor and three skilled labourers, each for 7.5 hours, which is not supported by the day book, and which in the case of the supervisor, clearly, and in the case of the others, apparently, is duplicated by the claims for labour earlier. This aspect of the claim is not allowed. The remaining part of the claim was the usual daily claim for the fence, the toilet and the steel plates. This I consider is part of the costs of the delay arising from the suspension of work on this day, and I allow these costs at the usual rate. It follows that the specific costs for Variation 5 are allowed at $5,553.87, which with the loading of 25 per cent produces a valuation of the variation of $6,942.34 plus GST.
Variations 6, 7
Variation 6 and Variation 7 relating to 23 and 24 September 2015 are very similar, and can be dealt with together. The day sheets for both days record “no work due to stand down” and each day records 7 hours for the same four people, including Mr Wilson. There may have been an argument for keeping workers available in case some instruction to do further work was received, but somewhat curiously, Variation 6 claimed for Mr Wilson and three labourers, and Ms Russell, whereas Variation 7 claimed only for Mr Wilson and Ms Russell, though the day book shows two labourers were there for both days.[61] I am treating Ms Russell’s time as part of the administration cost, rather than as something that should be claimed for separately, but I think it is reasonable for Mr Wilson to have been available on site, and his time has been allowed by the defendant’s quantity surveyor.[62] The claim for the labourers under Variation 6 was not accepted by the defendant, and in the absence of any evidence that the plaintiff was committed to using these labourers on these days anyway, I will not allow it.
[61]Wilson (8) Exhibit RJW22, p 5.
[62]Exhibit 5 Appendix 2, p 2.
The other aspect of the claim was the usual claim for fencing, toilet and steel plates, and for the reasons given earlier I would allow these as well. The specific costs for Variations 6 and 7 that I allow are therefore $987.20 each, which with the 25 per cent loading comes to $1,234, in each case plus GST.
Variations 8-15
These variations are referred to in the statement of claim as “revised plans ground chamber pit 5/1 variations”. The pleading then alleges a case based on the proposition that additional work was required in order to provide a proper foundation for the drainage pit which was then to be built above it, which as discussed above was agreed and for which the defendant accepts reasonable remuneration must be paid. However, it seems to me that most of these variations in fact relate to the effects of water penetration into the excavation. On 25 September, the date of Variation 8, the instructions for the additional works required by the engineer were given to the plaintiff, and it seems that that work was then done.[63] The work appears to have involved the removal of the temporary material which had been put in the pit, and more excavation, then placing a quantity of broken rock or concrete, described as spalls, which was compacted and, it seems, had some concrete placed above it.
[63]Russell (9) Exhibit SVR2, p 421; De Luca (52) para 16; Wilson, p 48.
The amount paid for the rock, $433.20, was not in issue but it appears from the invoice from the concrete supplier that the cost of the concrete excluding GST came to $547.20, not $554.51 as claimed, so I allow the former amount, which was not contentious.[64] There was also an invoice for an excavator for 8.5 hours at a cost of $115 per hour plus GST[65] which came to $977.50 plus GST, which I allow, and a float to transport the excavator for which $400 plus GST was claimed and has been omitted from the quantity surveyor’s schedule, which is appropriate and I allow it. There were two charges for a tip truck, one for 3 hours at $240 plus GST and one for 6.5 hours at $520 plus GST, which strikes me as reasonable although only 5 hours was allowed by the defendant’s quantity surveyor, for reasons that are not clear to me. There were also fees for tipping the material excavated, four loads at $325, a total of $1,300. This is shown in the day sheet, and the list of tip fees paid, and it seems that this amount was actually paid, so it is not clear why the defendant has only allowed for two loads. I allow this, in the sum of $1,182 plus GST.
[64]For this claim, see particulars Wilson (8) Exhibit RJW22 p 6; supporting documents Russell (9) Exhibit SVR1 pp 90-104; day sheet ibid Exhibit SVR2 p 421; Exhibit 5 Appendix 2 p 2.
[65]Which is neither the rate claimed by the plaintiff nor the rate allowed by the defendant’s cost assessor, and there was also reference to the wrong invoice number.
Apart from this, there were claims for Mr Wilson’s time as supervisor and the three labourers, which seems right, although the rate claimed for the labourers is the “charge out” rate of the plaintiff rather than what the plaintiff actually paid.[66] I allow 7.5 hours at $109 for Mr Wilson and three lots of 7.5 hours at $37.80 for the labourers. The remaining claims relate to the ongoing hire costs for the day of the two steel plates, the toilet and the fencing. It appears that this day was occupied in dealing with the admitted variation, so this represents part of the costs of the delay associated with the need to do this extra work, and I allow one day for these three things at the rates I have found. Accordingly, the specific costs for Variation 8 come to $6,083.10, which with the loading comes to $7,603.88 plus GST.
[66]Wilson (51) para 42. These figures would include allowances for administration and profit.
Variation 9 is for the following day. According to the day sheet, there was work done concreting the void between the shotcreting and the base, after delays of 3 hours due to “tidal water”. It is not apparent to me that any work that day was attributable to the agreed variation in the works; to the extent that there were delays that day, they were associated with the penetration of water to the excavation for drainage pit 5/1.[67] This raises an issue which occupied a lot of attention during the trial. Despite what was written in the day sheet, which may well have reflected the view of things held at the time,[68] the plaintiff’s case at trial was that the water was not tidal water, but was water which had come into the pit for which the defendant was responsible in some way.[69]
[67]Russell (9) Exhibit SVR2, p 422.
[68]There are numerous references to “tidal” water in those sheets: Russell (9) Exhibit SVR2, pp 422, 423, 424, 426, 427, 433, 440 and 447.
[69]Wilson (48) para 7(o).
Water in the excavations
Some specific sources of water were referred to in the material; for instance it was submitted that water from the construction site was pumped out of a drainage sump in the basement to an outlet at the curb on the western side of Walsh Street, from where it flowed into a gully pit and then by a pipe into the drainage pit which pit 5/1 was to replace, and which was one of the pipes which ran into the excavation.[70] Certainly there was some water which was discharged from the construction site in this way, and would have flowed into the hole. The plaintiff put in evidence photographs showing that happening.[71] The defendant conceded that this did occur, but said that it was not a significant problem, on the basis that after the defendant took over the work it did not find it a significant problem, and later did not even need to pump out water from that source coming into the excavation.[72]
[70]Smits p 3-87.
[71]Wilson (51) Exhibit Y: Photos Sept 28 2015 011; 13 Oct 2015 002; Walsh St 23-10-15 016; Jan 10 2016 007. See also Winters p 4-95: It happened about every three days.
[72]Affidavit of Curcio, para 31. I do not accept this evidence.
The defendant’s evidence was that, at the time of the plaintiff’s work, storm water drainage for the building itself operated on the basis that it was collected into a sump in the basement, from where it was pumped by an automatic pump to this outlet. There was a surprising amount of variation in the evidence about the operation of this automatic pump,[73] but apparently it normally operated automatically, when the water reached a particular level. Importantly, however, this pump was under the control of the head contractor, not the defendant.[74] If so, and this evidence was not contradicted, the defendant was not responsible for any water in the excavation as a result, at least unless the defendant had deliberately switched on the pump on a particular occasion, something never proved. The plaintiff’s daughter said that on about 12 October she spoke to the first defendant’s site foreman about this water and he said he would switch it off and did so, and there was no water flowing into the excavation for the pipeline which was then underway for the next two days, after which the water flow started again.[75]
[73]Smits p 3-88: automatic switch with manual override, both ways; but p 3-93: only turn off. Winters: p 4-96: Cannot switch off automatic switch, but can disconnect power to pump.
[74]Smits p 3-87. He did say anyone could operate the switch, including the defendant.
[75]Affidavit of Russell filed 5 September 2016, para 4-8. Winters did not recall any such conversation: p 4-96. He did recall a request from Mr Wilson: p 4-91. I prefer the evidence of Ms Russell.
The plaintiff’s day book records on 12 October cleaning up from tidal water over the weekend, and at approximately 2.30pm “flooding into pit from other building, delay approximately 15 to 20 minutes from water then 30 minute clean up”: p 434. On 13 October tidal pumping and clean up from the night before was noted, and at 9.30am “major flooding coming from 825 pipe upstream Manning Street, all staff delayed 2 hours”: p 435. On 14 October there was no reference to any problems with water in the excavation, but the sheet for 15 October records delay due to tidal water “plus runoff from surrounding buildings”: p 439. It does look as though there was some water coming into the excavation anyway at this time, but perhaps not from the construction site outlet.
It is clear, from the explanation I was given of the temporary stormwater drainage arrangements on the construction site, that storm water on that site was supposed to flow into a sump which when it was pumped out would be discharged onto the side of Walsh Street and in that way flow into the plaintiff’s works. This was certainly a source of water problems for it, but on the plaintiff’s evidence it had problems even if this pump was not operating. Mr De Luca claimed that the building site shed stormwater, and none drained to the basement: p 2-105. If this was true it would have put this water onto the adjacent streets, which drained to the plaintiff’s excavation and pit 5/1, but he spoke of a podium level, which suggests some surface to drain, and photos of the building show balconies on at least the south side, which would have drained to the temporary stormwater system. The photos show that water was pumped out from time to time, so some water must have found its way in, and I do not accept this evidence of Mr De Luca.
This problem was really a by-product of the fact that the plaintiff was working within a drainage system which was “live”, that is to say, which could be expected to have drainage flowing through it from time to time.[76] This would arise most acutely in the event of rain, but even apart from that there are various other events which can produce water which runs into a storm water drain, and if any of them operated upstream from pit 5/1, the result would have been water flowing into the excavation.[77] Apart from the pipes which were known about, there were apparently other old pipes located during the excavation, and they could also be carrying drainage. Another possibility of course is that water was coming from the river, either up the storm water drain pipes, or through sand or gravel in which the pipes were laid, or through other artificial or even natural aquifers.[78]
[76]Mr Wilson’s assertion to the contrary, p 38, 89, p 3-87 must depend on his interpretation of drawing 157, which I have rejected. In fact he knew before he started work that the system was “live”, at least to some extent: Exhibit 10; Wilson p 3-98; affidavit of Smits para 4; Smits p 3-74.
[77]Affidavit of Curcio para 29.
[78]Mander-Jones pp 4-25-27.
If the evidence of the defendant’s witnesses, that the excavation of the building site had water running into it during periods corresponding to high tide,[79] was correct, the water must have been coming from some source extraneous to the storm water drainage system, as the building footprint on its face did not impact on that system.[80] There was some evidence suggesting that there were unidentified drains in the area, and it is possible that old drains connected into the storm water drainage system which ran into the area of the excavation could have been a source of water, though it strikes me as a little surprising that tidal water would simply drain away again by that means as the tide fell. Another possibility is that water from the storm water drainage system escaped through leaks in that system into the surrounding area, and then travelled through the more porous parts of the ground into the excavation, though again it is a little surprising that the water would drain away again readily by that process as the tide fell. The other possibility is that water flowed to this area to and from the river through natural aquifers so that, in effect, the water table in this area was also tidal.[81]
[79]Affidavit of Smits para 10, 11.
[80]Smits p 3-91: did not see water flowing from pipes into his excavations.
[81]Smits p 3-78. Or the water table was just high: Hargreaves Exhibit 4.
There is little independent or expert evidence in relation to these matters. The defendant called an expert civil engineer, Mr Mander-Jones, who thought the water was river water at high tide, although his evidence was mainly directed to the question of what would have been obvious to a contractor from the material provided to the plaintiff by the defendant, and from material readily available to the public: Exhibit 11.[82] Mr Hargreaves excluded water table water as it was seen flowing out of the pipes (Exhibit 4), which would exclude that water, but there is also a video of water apparently flowing out of the ground, like a small spring. Mr Hargreaves said that the excavations were into clay, which was not porous, but water can flow at a clay/rock interface, or through sand (or I suppose gravel) placed around pipes: p 3-34. He did not see water flowing out of pipes, or seeping into the excavation, when he was there: p 3-35, 43. In his opinion, it was not tidal water, or water seeping through the ground: p 3-44. He seems however to have relied heavily on what he was told about the water by Mr Wilson.
[82]He said from tide levels and the levels on the drawings in the tender packages, tidal inundation was inevitable: p 4-24.
In relation to quantum, on a precautionary basis it appears that three of the workers were involved in work in the drainage pit, except perhaps for some brief period when they were assisting with the assembly and placing of the shoring. For labour charge I allow 4 hours for Mr Wilson, but that is all. There was an excavator on site but apparently only 5.5 hours were charged that day, $632.50, and there were also two tip trucks hired since some additional material had to be excavated from the hole, one for 5 hours at cost of $400 and one for 4 hours, $320. I have some difficulty in seeing that a second tip truck was necessary, but it appears there were three truckloads taken to the dump since tip fees came to $300 for three loads: p 446. In the circumstances, therefore I would allow $320 for the second tip truck as well, and $272.73 for tip fees, which is the plus GST figure. The Schedule includes the cost of hiring the shoring, which came in various parts but at a total cost of $570 per week: p 385. This is the equivalent of $114 per day, plus GST. There will also be half the usual daily charges for the steel plates, a toilet and fence, $107.60. If all of these costs are properly allowed therefore the specific expenses for Variation 26 are $2,282.83, which with the loading becomes $2,853.54, plus GST.
Variation 27
The Schedule describes this variation as an unexpected major water discharge from the construction site resulting in collapse of the benching, requiring the installation of the shoring, but the shoring had been installed the previous day, as shown by both the day book and the photos taken that day. It does appear that there were significant problems with water on 22 October; according to the day book there was water flowing through pit 5/1 at 8.30am, and again at around 1.00pm: p 448. In essence this is just another water claim, and fails for the reasons given earlier. It is not obvious that there was anything done or not done by the defendant which was responsible for the fact that nothing useful in terms of either ground improvement work or extending the twin cell pipeline occurred on this day. This claim also fails.
With regard to quantum, the day book says that there were two workers “rendering around pipes” presumably in pit 5/1, so it does appear that some work, presumably useful, was done that day.[166] In those circumstances, I will not allow any time for the labourers that day, but I will allow four hours for Mr Wilson’s time, $436. There was an excavator for which $460 was charged that day, for four hours, $114 for the shoring system. Assuming half the daily rate for the plates, toilet and fence, $107.60, the specific costs total $1,117.60, which with the loading becomes $1,397, plus GST.
[166]The pipes running into pit 5/1 must be the most thoroughly rendered pipes in captivity.
Variation 28
On 23 October 2015, which apparently was the last day on which the plaintiff worked on the site, another section of the twin cell pipeline was installed: p 449. The Schedule complained that day of further water discharges from the construction site, and it is clear from photographs in evidence that on that day water was being pumped out of the basement storage facility through the temporary discharge point on the western side of Walsh Street, from where it ran into the plaintiff’s excavation. This would undoubtedly have delayed the plaintiff’s work, and indeed given it extra work, but for reasons given earlier the plaintiff is not entitled to recover damages from the defendant for this. The rock which had already been placed was cleaned up, the geo-fabric placed on top of it, and material on top of the geo-fabric, and then the two pipes were laid. The extra work associated with the ground improvement works on this day therefore would have been the cost of the geo-fabric, some labour to place it, and some costs associated with placing material above the geo-fabric before the pipes were laid.
The cost of the geo-fabric is noted in the day book as $360, but this was for a much larger quantity, and I allow the amount allowed previously of $43.20. I allow two hours for Mr Wilson’s time, $218, and two hours for one labourer, $75.60. There would also have been an excavator used to place the material above the geo-fabric and I allow one hour for that, $115, although there were obviously other things that the excavator was used for that day. There was a quantity of drainage gravel provided that day, which I assume is the material placed above the geo-fabric, at a cost of $405.65: p 413. For consistency, I will also allow one quarter of a day for the cost of the shoring system, $28.50, and one quarter of a day for the steel plates, toilet and fencing, $53.90. The specific costs in respect of that part of Variation 28 that amounts to ground improvement works therefore come to $939.85, which with the loading becomes $1,174.81, plus GST.
If the plaintiff is entitled to be compensated for delays caused by water, it appears from the day book that there was one hour delay in the morning, and further water came into the site at around 4.00pm, though work finished at 5.00pm and I suspect the work that was done that day was largely finished by 4pm. There are no photographs taken after 4.00pm that day of water actually in the excavation, or indeed of any work being done; there are three photos shortly before 5.00pm showing the site closed up. In the circumstances if the claim for delay due to water is allowable, it would only cover one hour this day. Apart from Mr Wilson, $109, there were two labourers for whom the plaintiff was charged $37.80 per hour and one who charged $55 per hour, so for the three of them for 1 hour it was a total of $130.60. I would allow 1 hour for the excavator, $115, and one eighth of a day for the shoring, $14.25, and for the plates, fence and toilet, $26.95. The total specific expenses associated with delay due to water therefore come to $395.80, which with the loading becomes $494.75, plus GST.
Summary
The effect of my conclusions set out above is that the plaintiff has succeeded on some variations but failed on others. The variations on which the plaintiff has succeeded, and the amounts that I have allowed, in each case plus GST, are as follows:
Variation Amount Variation 4 $2,853.36 Variation 5 $6,942.34 Variation 6 $1,234.00 Variation 7 $1,234.00 Variation 8 $7,603.88 Variation 18 $2,893.31 Variation 19 $740.75 Variation 20 $2,061.99 Variation 21 $1,736.50 Variation 22 $3,167.25 Variation 24 $1,901.38 Variation 25 $1,254.50 Variation 28 $1,174.81 Total: $34,798.07 Plus GST: $3,479.81 Total: $38,277.88 Lesspart judgments 10 May 2016: $24,647.70 14 June 2016: $5,100.98 Balance payable: $8,529.20
There was also a claim for interest under the Civil Proceedings Act. The plaintiff will be entitled to interest on the total amount from the time that the cause of action arose until the time the first summary judgment was given, then on the reduced balance between that date and the time of the second summary judgment, and then on the further reduced balance payable until the date of judgment. On this exercise, I will assume that the cause of action arose on 1 December 2015, when it appears that most of the payment claims were made in some detail. Allowing interest at the rates in the practice direction, calculating interest in accordance with the court calculator produces an allowance for interest of $1,425.91. There will therefore be judgment that the defendant pay the plaintiff $9,955.11 which includes $1,425.91 by way of interest.