EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 25 and 26 February 1991, 18 October 1991 [1991] NSWCA 86 CONTRACT — collateral contract negligent misrepresentation contract avers reliance on own enquiries — contract upheld. CONTRACT — contract for removal of rock from sewer outfall — contract reduced to writing — written specifications contain agreement that contractor has examined drawings etc, information relevant to risks and site and surroundings — warranty that failure to do 80 will not relieve contractor of liability to perform contract in accordance with terms — quantity of rock discovered to be in excess of estimate — contractor argues entitled to recover additional sums on grounds of (a) collateral contract; (b) warranties made to induce it to enter into the contract; and (c) failure to exercise reasonable care in supplying information — held: (Dismissing appeal from Giles J) (1) The information conveyed in the contract was not warranted as true and correct; (2) There was no collateral contract; (3) The claim in negligence in supplying incorrect information was not established. Cutts v Buckley (1933) 49 CLR 189 considered. Kirby P I agree with Samuels JA. Samuels JA On 16 October 1986 the Minister for Public Works accepted the appellant's tender made on 9 September 1986 for the removal of rock from the seaward end of the Norah Head Outfall Tunnel of the Wyong Shire Sewerage Scheme. The respondent is the nominal defendant appointed pursuant to the provisions of the Claims Against the Government and Crown Suits Act 1912. No formal document of contract was executed, but there is no dispute but that there was a contract between the parties which consisted of the tender and its accompanying schedules, some further correspondence which passed prior to acceptance and need not be noted further, the letter of acceptance, the general and special conditions and the specification and drawings. In addition I note that the respondent contended, and the learned trial judge held, that the contract had been varied by a letter of 10 March 1987 sent by the Public Works Department ("the Department') to the appellant. The appellant claimed substantial damages of the order of $1.3 million upon four different and alternative bases, the last of which was added by amendment granted on 23 March 1989 during the course of the trial, was ultimately rejected by Giles J, and was not pursued on the appeal. The evidence is dense rather than extensive perhaps, although the four appeal books contain upwards of 1000 pages of oral testimony and written material, which, since the appellant challenged a number of critical findings of fact made by the learned trial judge, it was necessary to examine in some detail. However, once analysed, the evidence and the issues can be summarised tolerably concisely; and the labour involved has been very much lightened by Giles J's lucid and careful judgment with which, I may say at the outset, I am in general agreement. It seems to me that the best way of approaching the matter is first to indicate the general nature of the works which the appellant undertook; then to note the contractual provisions upon which the parties rely, and finally to indicate 2 UNREPORTED JUDGMENTS the way in which the appellant put its claim. In explaining the nature of the work and the circumstances in which it was to be carried out, I have drawn freely upon the judgment. A tunnel constructed as part of the Wyong Shire Sewerage Scheme terminated at Norah Head in three nozzles spread in a fan-like formation, slightly short of a roughly vertical cliff face and at a position below sea level. In introducing the work, which was the subject of the contract, Giles J turned first to two drawings known as 26 and 27, both included in the contract documents, the first being a longitudinal section and the second a plan view. I will adopt the same course because it is necessary, not merely to indicate in general the conventional dimensions, both horizontal and vertical, which the drawings adopted, but also to have regard to various notes and legends which the drawings contained. Horizontal measurement was described as chainage, although actually in metres, commencing at the seaward end of the nozzles at a point known as 'Chainage 0'. Features to seaward were measured in positive metres from the nozzles and features inland in minus quantities. Mean sea level was taken as Reduced Level ("RL") 100, and in the vertical scale features above that level were shown as reduced levels in excess of 100 and features below that level as reduced levels under 100. These vertical measurements were in metres too. Accordingly, as the learned judge pointed out, RL 94.1 meant a position 5.9 metres below mean sea level. On drawing 27, the plan view, there was shown to seaward of the nozzles a fan-shaped area in rough prolongation of the fan formation of the nozzles themselves. The boundaries of the 'fan' were formed approximately by an hypothetical extension of the axis of the two flanking nozzles. The 'fan' contained an inner portion, immediately to seaward of the nozzles to a distance of 5.2 metres, which was designated Zone 1, and the outer portion extending to about 20 metres was described as Zone 2A/2B. Flanking the outer portion of the 'fan' on either side were hatched areas forming lateral extensions and designated as Zone 2A. I take the rest of the description of the area from the judgment. In section, these zones were picked up with vertical dimensions. Zone 1 was depicted with vertical dimensions by way of stopped top and bottom lines, from RL 102.3 at the highest to RL 92.9 at the lowest. Zone 2A was given the added description, "(Loose Rock)', and was depicted with a top line running horizontally at RL 95.0 to approximately ch 15.0, and then sloping downwards to ch 20.0 at RL 90.0, and an irregular bottom line from RL 92.25 to RL 90.0. Zone 2B was given the added description, "(Solid Rock)", and was depicted with a top line being the landward part of the bottom line of Zone 2A and a stepped or alternatively sloping bottom line from RL 91.9 to RL 91.3 (stepped) or RL 92.25 to approximately RL 91.0 (sloped). Thus there was depicted three 'envelopes'. Broadly speaking, Zone 1 could be said to be solid rock above and below sea level being that part of the cliff face at the seaward end of the nozzles which required excavation to expose the nozzles to the sea; Zones 2A and 2B could be said to be the rock further to seaward which had to be removed in order to allow the discharge from the nozzles to flow freely into, mix with, and be carried away by the sea; and of Zones 2A and 2B, Zone 2A was the upper and larger envelope with a greater plan area said to contain loose rock and Zone 2B was the lower and smaller envelope said to contain solid rock. The contract was described in the documents, which were provided of course by the Department, as a "schedule of rates contract" and CT-05 "description of contract" (that is, the fifth condition of tendering) said: URJ EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES (Samuels JA) 3 "The Contractor shall be paid on a Schedule of Rates basis subject to cost adjustment." As it will appear, the contract was not strictly a schedule of rates contract but contained also lump sum stipulations. The works were described in this way: "The work to be carried out under this Contract is the removal of rock from the seaward (outlet) end of the Norah Head Outfall Tunnel. The works will form part of the effluent outfall system for Wyong Shire at Norah Head and are briefly summarised as follows: a) drilling of the rock between the tunnel discharge nozzles and the sea. b) cracking/breaking up of that rock by non-explosive means. c) removal and disposal of that material together with boulders (and some solid rock) from the sea-bed to leave a fan-shaped opening in front of the discharge nozzles. The material to be excavated is within the Munmorah Conglomerate. The rock types of this formation consist of sandstones, pebbly sandstones and conglomerates with siltstone and claystone beds." The description of the site stated that it was located "at the seaward edge of the rock platform adjacent to the Norah Head Lighthouse" and that the rock to be removed "generally lies between RL 102.0 and RL 90.0." The conditions of tendering in CT-16 drew attention to investigation reports referred to in para 5 of the description of the site and CT-O9 specifically informed tenderers that they "may ask for clarification of anything in the Tender Documents." The claim added by amendment at the hearing, to which I have referred, and which is not now pursued, was based upon general condition ("GC") 3.3(c) to which I need not further refer. But GC 12 is of importance and was in these terms: "The Contractor shall be deemed to have (a) examined carefully and to have acquired actual knowledge of the contents of the Drawings, Specification, Schedules, Bills of Quantities (if any), Conditions of Tendering, these General Conditions of Contract and the Special Conditions (if any) and any other information made available in writing by the Principal to the Contractor for the purpose of tendering; and (b) examined all information relevant to the risks, contingencies and other circumstances having an effect on his tender and which is obtainable by the making of reasonable enquiries; and (c) examined the site and its surroundings; and (d) satisfied himself as to the correctness and sufficiency of his tender for the work and that his price covers the cost of complying with all his obligations under the Contract and of all matters and things necessary for due and proper performance and completion of the Contract. Failure by the Contractor to do all or any of the things he is deemed to have done under this clause will not relieve the Contractor of his liability to perform and complete the Contract in accordance with the terms and conditions thereof." There are two special conditions which must be specifically mentioned. SC-14 provided: "The Principal does not represent that information made available shows completely the existing site conditions. The Principal is not responsible for any interpretation, deductions and conclusions made by the Contractor from the information made available and the Contractor shall accept full responsibility for any such interpretations, deductions or conclusions." SC 21 was in these terms: 4 UNREPORTED JUDGMENTS "The Contractor must check and must ensure that any sub-contractor checks all relevant dimensions on site before proceeding with the work under the Contract. In no circumstances shall dimensions be scaled from drawings. The layout of plant and equipment as shown on the Drawings shall be taken as diagrammatic only and all measurements and other information required to carry out the work specified shall be obtained by the Contractor on the site. No claim for extras arising from failure to obtain measurements and other information on site will be allowed." Several paragraphs of the Specification should be referred to. S-01.1 described the works in this way: "The work to be carried out under this contract involves the removal and disposal of rock from in front of the tunnel, which has been constructed by others, in order to expose the outlet nozzles (which will be uncapped (by others) when the system is commissioned). Rock shall be removed to the specified profile, either stepped or sloped as shown on Drawing 82272-26. Disposal shall be further out to sea and/or around the headland at Norah Head as specified in 5-07.1.1." The "specified profile" was congruent with what is later described as "the minimum clearance line" and appears in drawing 26 either as a stepped or sloped line as the lowest boundary of Zone 2B. S-06 dealt with rock breaking, and 06.1 provided: "Zone | (Refer Drawings Nos 82272-26 and 27) The Contractor shall break the rock by non-explosive means into pieces with size compatible with the disposal methods to be used (Refer 5-06.3.)" 5-06.2 provided: "Zone 2B (Refer Drawings Nos 82272-26 and 27) The Contractor may use explosives for breaking of sea bed solid rock (if any) seaward from line AD to the minimum clearance line shown on Drawing No. 82272-26." and S-06.4 said: "Payment for breaking and removal of sea bed solid rock (if any), that is Zone 2B, will be made as described in 5-08.4." I find it necessary, as the learned judge did, to set out in full the provisions of S-08.4, but its terms must be prefaced by indicating the provisions made in the Schedule of Rates of which Item 4 is the relevant portion. It was in these terms: "4. (a) Breakup, removal and disposal of rock from Lump Item Sum 68,785.00 Zone 1 as specified and shown on Drawings 82272-25, 26 and 27 (S-06, 07, 08.4) (b) Removal and disposal of rock on the sea bed in Zone 2A; and breakup, removal and disposal of rock in Zone 2B; as shown on the drawings and as specified. (S-06, 07, 08.4, SC-23) (i) Zone 2A - in situ loose rock 1070 cu.m 347.85 372,199.50 (ii) Zone 2B - in situ solid rock 100 cu.m 587.45 58,745.00" S-08.4 then provided as follows: "08.4 Item 4 08.4.1 The amount tendered for Item 4(a) will be paid for rock removal from Zone | that is, broken up, removed and disposed as specified and shown on Drawings 82272-25, 26 and 27. The amount shall be deemed to include all necessary additional drilling, over and above that specified and paid for under URJ EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES (Samuels JA) 5 Item 3, as well as removal of the timber formwork from around the nozzles, details of which are shown on Drawing No 8227-27. Based on survey measurements and mathematical calculations, the quantity of solid rock within Zone | has been estimated at approximately 290 cubic metres. Refer calculations on Drawing 8227-27. This quantity is not for contract purposes, but for information only. For purposes of this contract, Zone 1 will not be re-surveyed, other than in accordance with S-09, nor its estimated quantity re-calculated The Contractor will be deemed to have made his own assessment of the totality of work required within Zone 1 and of the sufficiency of his tender amount for Item 4(a) for performance of such work. Irrespective of the accuracy of the said estimated quantity and irrespective, also, of the actual quantity of solid rock broken up and disposed from Zone 1, the contract amount for Item 4(a) will be paid upon completion of rock removal/disposal from Zone 1 in accordance with the contract. For purposes of progress valuation and payment for item 4(a), regard will be had for: * the amount of rock drilling within Zone 1 (other than that along lines ABCD for which payment will be separately made against Item 3) * the assessed quantity of solid rock which has been broken up but not yet removed to disposal * the assessed quantity of solid rock which has been broken up and removed to disposal all as an assessed proportion of the totality of work covered by Item 4(a). However, the Superintendent reserves the right which right will not be exercised unreasonably to make no progress payment under Item 4(a) except in respect of the assessed proportion of the total quantity of solid rock from Zone 1 which has been removed to its final disposal. 08.4.2 Based on survey measurements and mathematical calculations, as shown on Drawings 82272-25, 26 and 27, the total quantity of rock - whether loose or solid on the sea bed within Zones 2A and 2B - has been determined at 1170 cubic metres. For all purposes of the contract, the said total quantity will apply unless it be challenged by the Contractor. Should the Contractor wish to challenge this total quantity of 1170 cubic metres for Zones 2 and 2B, he shall do so prior to any removal of rock from Zone 2 and prior also to any deposition of broken rock from Zone | into or onto Zone 2A. Otherwise, no challenge will be entertained. Upon a challenge by the Contractor to the total quantity of Zones 2A and 2B, the surface of Zone 2A will be resurveyed, and the total quantity within Zones 2A and 2B will be recalculated. Such a re-calculation shall be by mathematical formulae equivalent to those shown on Drawings 82272-26 and 27 or such other mutually agreed formulae. The re-survey and re-calculation of quantity shall be undertaken jointly on behalf of the Principal and the Contractor, with each party initially bearing its own costs. For all contract purposes, the revised quantity determined by re-survey and re-calculation whether greater or lesser than 1170 cubic metres will supersede and supplant the previously determined quantity of the 1170 cubic metres. In the event of the revised quantity being different (greater or lesser) from the 1170 cubic metres by 5% or more, the Contractor's reasonable costs for re-survey and re-calculation will be reimbursed by the Principal. Should the revised 6 UNREPORTED JUDGMENTS quantity be different (greater or lesser) from 1170 cubic metres by less than 5%, the Principal's costs for re-survey and re-calculation shall be met by, or recoverable from, the Contractor. In like manner, should the revised quantity be different from 1170 cubic metres by 5% or more, the Contractor will be entitled to an extension of time for completion in respect of any delays to progress caused by the re-survey and re-calculation; but, if the difference be less than 5%, then no claim for extension of time will be entertained. The Principal has not attempted to measure the separate quantities in Zones 2A (loose) and 2B (solid). For purposes of Item 4(b)(i) in the Schedule of Rates, it has been assumed that 1070 cubic metres of the total quantity is in Zone 2A and the remainder (100 cubic metres) is in Zone 2B. Attention is directed to Clause SC-23 which deals with the guaranteed accuracy of those assessed quantities and to sub-clause 3.3(c) of General Conditions of Contract which deals with the impacts of departures from such guaranteed accuracy. Attention is further directed to Clause S-07.2, which provides for a survey of the surface of Zone 2B after removal of all loose rock from Zone 2A. From that survey, the quantity of solid rock remaining within Zone 2B will be calculated, using mathematical formulae similar to those shown on Drawing Nos 82272-26 and 27. This calculated quantity for Zone 2B will be the total quantity for which payment will be made against Item 4(b)(ii), provided always that the Superintendent shall have directed removal of rock from Zone 2B. Refer S-07.3 The calculated quantity for Zone 2B will be subtracted from the total quantity for Zones 2A and 2B (ie 1170) cubic metres or as revised in accordance with the foregoing) to determine the quantity for Zone 2A, which will be deemed to be the actual total quantity for which payment will be made against Item 4(b)(i). The progress quantity of loose rock removed to final disposal from Zone 2A for which progress payments will be made against Item 4(b)(i) will be as mutually agreed, or as determined by the Superintendent in the event of disagreement. Such progress quantities will be assessed by whatever means are appropriate to the circumstances, including visual observation of the sea bed and/or assessment of quantities transported to disposal, and/or underwater survey. Similar principles will apply for progress measurement and payment, if required, for removal from Zone 2B against Item 4(b)(ii). 08.4.3 The rate tendered for Item 4(b)(i) will be paid for each cubic metre of loose rock pre-existing in and removed from Zone 2A but not material from Zone 1 as specified and as shown on Drawings Nos 82272-25, 26 and 27 as might be moved from Zone | into/onto Zone 2A. The rate tendered shall be deemed to include disposal. Refer S-08.4.2 and SC-23 regarding quantities and limits of accuracy for Item 4(b)(i). 08.4.4 The rate tendered for Item 4(b)(ii) will be paid for each cubic metre of solid rock broken up, removed and disposed from Zone 2B as specified and shown on Drawings Nos 82272-25, 26 and 27. Refer S-06.2, S-06.4, S-07.3, S-08.4.2 and SC-23. 08.4.5 Where disposal is wholly or in part on land the rates for Items 4(a), 4(b)(i) and 4(b)(ii) shall be deemed to include the cost of carrying out the work in accordance with the particular requirements of 5-07.1.1(b)." URJ EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES (Samuels JA) 7 As the learned judge pointed out, in S-08.4.2 there were references to SC-23, GC 3.3(c) and S-07.2 and 5-07.3. The first and second of these provisions were of relevance to what Giles J treated as the first ground of the plaintiffs claim, which was added by amendment, and which is not pursued in the appeal, and I need not therefore refer further to these stipulations. However, S-07.2 and S-07.3 remain material and were in the following terms: "07.2 Underwater Survey after Completion of Zone 07.2.1 After the removal of all loose rock from Zone 2A (whether pre-existing or disposed there from Zone 1) a joint underwater survey shall be carried out in order to ascertain the surface of Zone 2B. Notice of such survey shall be given by the Contractor to the Superintendent at least two weeks before the sea bed is expected to be in readiness for it, in order that the necessary arrangements can be made and to allow for suitable diving access. 07.2.2 The time for completion of the survey will be two (2) weeks from the date notified by the Contractor. The Contractor shall be entitled to an extension of time and reasonable costs should the survey not be able to be carried out within the time specified. 07.3 Rock Removal from Zone 2B The Principal reserves the right to direct the removal of solid rock from Zone 2B or to leave it in-situ. Attention is directed to S-08.4.2 and SC-23 regarding the limits of accuracy for work under Item 4(b)(ii). No payment will be made arising from the non performance of work under Item 4(b)(ii) should the Superintendent direct that solid rock on the sea-bed be left in-situ." The time for practical completion of the works was thirty weeks from 16 October 1986, the date upon which the tender was accepted, and was thus 13 May 1987. It is unnecessary, I think, to traverse in any detail the performance of the works. It is enough to say that, ultimately, a certificate of practical completion was issued on 8 June 1988, and in a cross-claim the respondent claimed liquidated damages for the over-run of fifty six weeks in the sum, including interest, of $130,779.18. Before turning to the way in which the appellant presented its case at the trial and on the appeal, I must refer to a variation of the contract which was effected by a letter of 10 March 1987 written by the Department to the appellant and the subject of considerable contention at the trial. However, although the notice of appeal disputed the conclusion to which the learned judge came in respect of it, the appellant no longer presses those grounds of appeal. Accordingly, the provisions of the contract, that is, in S-08.4.2, and, of course, in the drawings, which "determined at 1170 cubic metres" the total quantity of rock to be removed, stood unaffected by the possibility of the challenge contemplated by S-08.4.2; and, secondly, the variation recorded in the letter abolished any distinction between loose rock or solid rock within the total determined quantity of 1170 cubic metres. Hence, a further consequence was that the provision for a survey in S-07.2 could thereafter be put aside. This explanation of the terms of the contract now enables me to state succinctly the fundamental issue between the parties. Following the variation effected by the letter of 10 March 1987 (or, indeed, according to the respondent's contention accepted by the learned judge, even before that variation in the absence in fact of any challenge to the "determined" quantity of rock), the contract was one in which the appellant was to be paid at the agreed rate for the removal of 1170 cubic metres of rock. As the learned judge put it: "For all 8 UNREPORTED JUDGMENTS purposes of the contract that total quantity would apply unless it be challenged by the plaintiff." And I cannot do better than state the ultimate interpretation of the contractual provisions in his words: "The result of these provisions was that the total quantity of rock removed for which payment would be made was not the actual quantity of rock removed but either 1170 cubic metres or some other total quantity calculated consequent upon challenge." As I have pointed out, there was not only no challenge in fact but the provision for challenge was in effect removed from the contract. I should add that, in any event, by 10 March 1987, removal of rock having already begun from Zone 2, the time limited for any challenge pursuant to S-08.4.2 had probably expired. Hence, the appellant's case was that it had entered into a contract to remove 1170 cubic metres of rock disposed in certain formations, but found that the amount of rock which had to be removed, and which the plaintiff did remove, was very much in excess of that figure in circumstances of considerable difficulty. This case was put at the trial in four different ways, but now only three remain for consideration. First of all, it was alleged that there were contractual warranties - (a) that there was no more than 1,170 cubic metres of rock in Zone 2; (b) that Zone 2 consisted of the rock shown in the drawings; (c) that the rock in Zone 2 was below RL 95.2; (d) that there was no solid rock in Zone 2 seaward of ch 13.5; (e) that the sea floor seaward of ch 16.7 was at RL 89.3 and consisted generally of sand and shingle." These warranties were made, it was contended, expressly or by necessary implication by the Schedule of Rates Item 4(b)(ii), S-01.1, S-08.4.2 (para 1 and para 2) and by Drawings 26 and 27. However, in breach of these warranties (a) there was approximately 2,500 cubic metres of rock in Zone 2; (b) Zone 2 did not consist of the rock shown in the drawings but consisted of rock generally two to three metres higher than the rock shown in the drawings, and almost all solid, not loose, rock; (c) the rock in Zone 2 rose as high as RL 97.5; (d) there was solid rock 2.6 metres deep in Zone 2 seaward of ch 13.5 as far as ch 20 and beyond; (e) the sea floor seaward of ch 16.7 as far as ch 20 and beyond was at RL 92 and consisted of solid rock. Secondly, the plaintiff asserted that "in order to induce the plaintiff to tender for, and thereafter to enter, the contract, the Department" made the warranties upon which the first cause of action depended. Finally, (I am taking these claims in the order in which the learned judge dealt with them and not in the order in which they appear in the amended statement of claim) the plaintiff contended that the respondent failed to exercise reasonable care in supplying the information which made up the warranties to which reference has already been made. This information was said to have been conveyed by those portions of the contractual documents in which the so-called warranties were said to reside. The acts and omissions relied upon were (a) failing to carry out proper underwater survey of the site; (b) failing to follow proper underwater survey procedure; (c) failing to obtain accurate survey data; (d) failing to process survey data accurately (alternatively to (a)-(c)); (e) failing to plot survey data accurately (alternatively to (a)-(d)); (f) providing information which contained gross errors (the errors being the respects in which the information was said to have been incorrect). URJ EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES (Samuels JA) 9 I turn first to the claim that the contract contained the contractual warranties which I have set out above. His Honour rejected that submission, taking the view that reading the contract as a whole, the representations (a word his Honour used to comprehend the substance both of the contractual counts and the count in negligence) were not, on its proper construction, to be found in it. The appellant repeated before us the same submissions which he had advanced to the judge below. First of all, it was contended that support for the argument was to be found in the various notes, legends and descriptions on the drawings, in particular numbers 26 and 27. It was said, for example, that they contained a description that Zone 2A consisted of loose rock and Zone 2B of solid rock; and that the longitudinal section on drawing 26 of Zone 2A showed "rocks both large and small not filling the envelope entirely." Reference was made to the position of survey marks on drawing 26, particularly the note in the area of RL 89.3 "generally 89.3 (sand/shingle bottom)", and to various other legends and depictions on the drawings, the calculations of the volumes of the "envelopes", especially those on drawing 27, and to the survey notations on the plans. Secondly, some support was sought from the diver's report, not arising from any detailed information which it contained, but said to be provided merely by the indication that there had been an underwater survey undertaken. Thirdly, the argument relied upon various provisions of the contract, in particular, as I have already mentioned, S-6, S-08.4.2 and the Schedule of Rates. I have only summarised these contentions because they are very fully set out in the judgment under appeal and may be categorised in this way. The contention that the Department promised that there was no more than 1170 cubic metres of rock in Zone 2 was essentially based upon Items 4(b)(i) and (ii) of the Schedule of Rates and 5-08.4.1 and S-08.4.2; and the representations, to adopt the learned judge's word, which were said warrant the topographical condition of the area of the works, were said to be established as promises by what appeared on the drawings. It is plain, of course, that the contract must be construed as a whole. When it is considered in this way it seems to me, with all respect to the argument of counsel for the appellant, that it is very clear indeed that language was chosen which was intended to indicate, and fairly did so, that the amount of rock to be removed, and its precise disposition, were essentially uncertain. It was submitted, for example, that the appellant could draw some comfort from the confrontation between the word 'estimated' in S-08.4.1 and the word 'determined' in S-08.4.2. If the suggested conflict between them is in fact realised, and I do not think that it is, it would be extremely difficult in any event to assign any precise or certain meaning to the information which each word was designed to convey. The use of 'estimated' obviously indicates something short of certainty, and there is no certainty to be got from 'determined' when regard is had to the context in which the word appears. It, in effect, introduces the provision for challenge, to which reference has already been made, by pointing out that the determination of 1170 cubic metres based on survey measurements and mathematical calculations as the total quantity of rock within Zones 2A and 2B will apply "for all purposes of the contract.... unless it be challenged by the Contractor." There follow the detailed provisions of challenge which I need not repeat. Further, later in the formula, this is said: "For all contract purposes, the revised quantity determined by re-survey and re-calculation [that is, following upon a challenge].... will supersede and supplant the previously determined quantity of 1170 cubic metres." 10 UNREPORTED JUDGMENTS In those circumstances, I find it impossible to see how the quantity of 1170 cubic metres can be regarded as in any way a promise of how much rock was actually there. Again, towards the end of S-08.4.2, it is specifically provided that: "The Principal has not attempted to measure the separate quantities in Zones 2A (loose) and 2B (solid). For purposes of Item 4(b)(ii) in the Schedule of Rates, it has been assumed that 107 cubic metres of the total quantity is in Zone 2A and the remainder (100 cubic metres) is in Zone 2B." The emphasis appears in the original document. The way in which S-07.2 contemplated an underwater survey after the work had been completed in Zone 2A and the references to this exercise in S-08.4.2 tend, in my opinion, to reinforce the respondent's answer to the appellant's argument and the learned judge's conclusions. The provisions to which I have just referred make it plain that the quantity 'determined' was not intended to be a prediction of what the contractor would encounter, but was a conventional figure adopted as an essential ingredient in the formula for payment. Similarly, the notes and legends on the drawings abound in examples of what can reasonably be regarded only as intimations of lack of certainty and definition, «6 for example, phrases such as "theoretical bottom profile", "approximate extent of boulder covered area", "approximate limit of boulder covered area (varies)", with no indication of course as to the precise dimensions of the variation. I add the use of the description "cliff (nominally vertical)", and the reference on drawing 27 to the volume in the hatched areas on either side of the main portion of the fan area as being "based on an assumed depth of loose material of 1.5 metres"; and the appearance on drawing 26 of the profile decorated with question marks. Finally, overall must stand the opening sentence of SC-14: "The Principal does not represent that information made available shows completely the existing site conditions." In my opinion, the learned judge was perfectly correct to conclude that the information conveyed in the contract documents, including the drawings, was not warranted as true or correct. The second submission put to the learned judge and rejected, and run again before us, was that there was, in the alternative, a collateral contract to the effect that in consideration that the appellant would enter into the contract, the Department warranted the truth of the various representations alleged. This is a curious argument because, in essence, it amounts to this; that in consideration that the appellant would enter into a contract upon certain terms the Department warranted that those terms were true. A collateral contract of the kind which the appellant is seeking to erect is ordinarily to be found in the provisions of some antecedent contract or promise, the consideration for which was the claimant's entering into a main or principal contract, and "intended to be collateral, extrinsic or supplementary to the main contract as distinguished from being part of it": Cutts v Buckley (1933) 49 CLR 189 at 198 per Dixon J. In the present case there is no such antecedent or independent contract. The consideration for the promises allegedly made can only be the entry into the contract in which those promises are, as the appellant contends, to be found. There was, therefore, no collateral contract. The argument was, no doubt, stimulated by an endeavour to escape from the very real difficulties perceived to lie in the way of the assertion of the contractual warranties. To adapt Lord Brightman's words in Cinzano (UX) Ltd v Customs and Excise Commissioners (1985) 1 WLR 484 at 488 I admired counsel's ingenuity and tenacity but was totally unconvinced. In any case, for the reasons which I have already given, the representations were not warranties at all, so that the argument fails in limine. If, contrary to my view, any collateral contract, that is to say, an engagement separate from this URJ EDEN CONSTRUCTIONS (NSW) PTY LTD v HAINES (Clarke JA) 11 contract to execute these works could be found, its material terms, if they were warranties, would be inconsistent with the terms of the principal contract which are not: Esanda Ltd v Burgess (1984) 2 NSWLR 139. That brings me finally to the claim in negligence which contends that the respondent owed the appellant a duty to exercise reasonable care that "the information supplied", that is what I have called, following Giles J's terminology, the representations, was correct. Because, in my view, the information relied upon was not supplied in the contract documents (for the reasons I have already discussed) the claim must fail. Those documents (including, of course, the drawings) did not assert or represent the facts, or convey the representations, upon which this cause of action depends; and no other source of those representations is suggested. The appellant seeks to rely on the judge's finding that "the information was substantially incorrect", this being a reference to the conclusion that, for example, more rock than 1170 cubic metres was in fact removed from Zone 2. But that finding does not supply an affirmative answer to the question whether the respondent represented that there was not more than that figure. It is unnecessary to consider the authorities, which were not in any case the subject of dispute. But I think I should observe that I agree with the respondent's contention that in Morrison-Knudsen International Company Inc and Anor v Commonwealth of Australia (1972) 46 ALJR 265 it was assumed, in the absence of a demurrer, that the statement of claim disclosed a cause of action. There remains the cross-claim. Here the appellant's challenge must fail for the same reasons as those which have proved fatal to its earlier contentions. The appellant;s argument was that it was the respondent's acts and omissions that had prevented the appellant from completing the works by the contractual date; so that the respondent was not entitled to exploit the provision for liquidated damages: see Percy Bilton Ltd v Greater London Council (1982) 1 WLR 794. I entirely agree with Giles J's answer: "The plaintiff was obliged under the contract to carry out the work of rock removal to the specified profile regardless of the quantity of rock which it in fact encountered and had to remove, and (whether or not in breach of duty) nothing the Department did prevented it from doing so." It is unnecessary for me to express any views about Mr Fitzhenry's evidence, and I do not do so. The appeal should be dismissed with costs. Clarke JA I agree with Samuels JA. Appeal dismissed with costs Counsel for Appellant: R H Macready Solicitors for Appellant: Colin Biggers and Paisley Counsel for Respondent: D Cowan Solicitors for Respondent: H K Roberts, State Crown Solicitor