Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 270

New South Wales Court of Appeal

CITATION : Peninsula Balmain Pty. Limited v. Abigroup Contractors Pty. Limited [2002] NSWCA 270 FILE NUMBER(S) : CA 40949/01 HEARING DATE(S) : 6 and 7 June 2002 JUDGMENT DATE : 19 August 2002

PARTIES : Peninsula Balmain Pty. Limited - appellant Abigroup Contractors Pty. Limited - respondent JUDGMENT OF : Mason P at 1; Stein JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT SC55034/99 FILE NUMBER(S) : LOWER COURT Barrett J JUDICIAL OFFICER :

COUNSEL : Mr. F.M. Douglas QC with Mr. M.G. Rudge SC and Mr. M. Christie for appellant Mr. B.W. Walker with Mr. I. Faulkner for respondent SOLICITORS : Deacons Lawyers, Sydney for appellant Clayton Utz Lawyers, Sydney for respondent CATCHWORDS : CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Agreeemnt that terms of General Conditions prevail over terms of Tender - Whether provision for "reasonable rates and prices" in General Conditions displaces quantification in Tender. DECISION : Order 3(b) made on 3 July 2002 deleted.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40949/01 SC 55034/99

MASON P STEIN JA HODGSON JA

Monday 19 August 2002 PENINSULA BALMAIN PTY. LIMITED V. ABIGROUP CONTRACTORS PTY. LIMITED Supplementary Judgment 1 MASON P: I agree with Hodgson JA as set out below. 2 STEIN JA: I also agree with Hodgson JA. 3 HODGSON JA: Pursuant to leave granted in Order 6 made on 3 July 2002, Abigroup provided written submissions applying for reconsideration of Orders 3(b) and 5. Peninsula then provided written submissions, Abigroup responded with further written submissions, and Peninsula again responded. 4 In relation to Order 3(b), Abigroup accepted that the version of cl.36 applied by the primary judge had been displaced by the version set out in par.[10] of this Court's judgment, but submitted that this version too was inconsistent with the quantification of delay costs in the tender and therefore displaced that quantification. Abigroup also submitted that this quantification was displaced by cl.40.5 of the contract dealing with valuation of variations, providing that "reasonable rates or prices shall be used in any valuation of a variation" and also: (f) If the valuation relates to extra costs incurred by the Contractor for delay or disruption, the valuation shall include a reasonable amount of overheads but shall not include profit or loss of profit. 5 In order to deal with this submission, it is necessary to consider the effect of par.3 of the formal instrument of agreement, which was as follows: 3. The Contract means: a) This Formal Instrument of Agreement; b) AS2124-1992 General Conditions of Contract and Annexure, Part A & Part B c) The Special Conditions of Contract for AS2124-1992 for Guaranteed Maximum Price; d) Schedule of Contract of Documents dated 9th March 1998. Ref: RM/NJ/0298106, 11 pages. e) Letter of acceptance dated 30th January 1998; f) Tender dated 11th December 1997.