New South Wales Supreme Court CITATION : STUART v FETENI & ORS; COOGEE SANDS APARTMENTS v STUART & ANOR [2004] NSWSC 237 revised - 8/04/2004 HEARING DATE(S) : 23/2/04, 24/2/04, 25/2/04, 26/2/04, 27/2/04, 1/3/04, 2/3/04, 3/3/04, 5/3/04 JUDGMENT DATE : 7 April 2004 JUDGMENT OF : McDougall J at 1 DECISION : See para [341] of judgment CATCHWORDS : BUILDING AND CONSTRUCTION - contract - amended standard form Building Works Contract - whether entitled to extensions of time - determination of date for extended practical completion - whether entitled to liquidated damages - whether liquidated damages clause a penalty - whether unconditional guarantee of completion date given - whether any such guarantee relied upon - whether negligent certification that the design of works complied with relevant requirements - whether certification relied upon in deciding whether to enter into the contract - misrepresentation LEGISLATION CITED : Trade Practices Act 1974 (Cth) AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 CASES CITED : Esanda Finance Corporation Ltd v Plessnig (1989) 166 CLR 131 Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504 Turner Corporation Pty Ltd (Receiver & Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378 In proceedings 55021/01: Stuart Pty Ltd (Plaintiff) Feteni Pty Ltd (First Defendant) Robin Edmiston & Associates Pty Ltd (Second Defendant) PARTIES : Tatton Park Pty Ltd (Third Defendant) In proceedings No. 55010/02: Coogee Sands Apartments Pty Ltd (Plaintiff) Stuart Pty Ltd (First Defendant) Alexander Stuart (Second Defendant) FILE NUMBER(S) : SC 55021/01; 55010/02 F C Corsaro SC/M J Dawson (Stuart) J B Simpkins SC/N J Kidd (Feteni & Coogee Sands) COUNSEL : G A Sirtes (Edmiston & Associates) I G B Roberts (Tatton Park) R A Cavanagh (Architects Haywood + Bakker - first cross-defendant in matter 55021/01) PricewaterhouseCoopers Legal (Stuart) Snelgrove & Partners (Feteni & Coogee Sands) SOLICITORS : Henry Davis York (Edmiston & Associates) Phillips Fox (Tatton Park) James Tuite & Assoc (Architects Haywood + Bakker) INDEX STUART PTY LTD v FETENI PTY LTD & ORS 55021/01 COOGEE SANDS APARTMENTS PTY LTD v STUART PTY LTD & ANOR 55010/02 Paragraph Introduction 1 Order under Pt 31 r 2 5 The issues for decision 7 The contract 12 Findings on credibility 30 The events leading up to 30 August 1999 49 The meeting of 30 August 1999 62 Extension of time claims: general matters 81 EOT 2: furniture delays 84 The facts 84 The expert evidence 117 Construction of clause 9.01 – critical path 126 The contractual requirements 144 Conclusion on EOT 2 161 EOT 3: planter boxes 162 The facts 162 The expert evidence 186 INDEX EOT 3: planter boxes 162 The contractual requirements 195 Conclusion on EOT 3 203 EOT 4: disabled access ramp 204 The facts 204 The expert evidence 241 Stuart's design obligation 243 Analysis 250 The contractual requirements 265 Conclusion on EOT 4 266 The date for practical completion 267 The date of practical completion 268 Penalty 280 Liquidated damages – other issues 287 The notice argument 288 The grace period 292 The prevention principle 295 Conclusions on liquidated damages 298 Feteni's claim for general damages 299 The claim against Edmiston Associates 300 The claim against Tatton Park 334 Cross-claims between the defendants 337 CSA's claim: 55010 of 2002 338 Summary of conclusions; order 341 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST McDOUGALL J 7 April 2004 55021/01 STUART PTY LTD v FETENI PTY LTD & ORS 55010/02 COOGEE SANDS APARTMENTS PTY LTD v STUART PTY LTD & ANOR JUDGMENT HIS HONOUR: Introduction 1 On 14 July 1998, Feteni Pty Ltd ("Feteni") as proprietor and Stuart Pty Ltd ("Stuart") as builder entered into a building contract ("the contract"). The work to be performed by Stuart under the contract included alterations and additions ("the project") to an existing building, used as a motel, at 161 to 167 Dolphin Street, Coogee ("the site"). The site, including its improvements, was owned by Feteni. Feteni was the operator of the motel, under the name "Coogee Sands Motor Inn". Robin Edmiston and Associates Pty Ltd ("Edmiston Associates") was named as the architect under the contract, although by special condition 1.3, references to the "Architect" were to be read as references to the "Project Manager" unless otherwise provided. The project manager was Tatton Park Pty Ltd ("Tatton Park"). 2 The intention underlying the project was to convert the existing motel premises into serviced apartments, providing a superior level of accommodation to people who might otherwise take a hotel or motel room for short term stays. Initially, it was intended that the apartments (each of which would have separate strata title) would be sold to investors who would lease them back to an operator. 3 There are two sets of proceedings in this Court relating to the contract. Stuart is the plaintiff in proceedings 55021 of 2001. Coogee Sands Apartments Pty Ltd ("CSA"), a related company of Feteni, is the plaintiff in the other. 4 The essential issues in dispute between Stuart and Feteni, and Stuart and CSA, relate to: (1) The date on which Stuart achieved practical completion. (2) Stuart's entitlement to extensions of time for three extension of time claims known as EOT 2 (the furniture dispute), EOT 3 (the planter box dispute) and EOT 4 (the disabled access ramp dispute). (3) The extended date for practical completion under the contract having regard, in particular, to those three extension of time claims. (4) An agreement said to have been reached between Stuart and CSA on 30 August 1999 whereby, so Feteni and CSA say, Stuart guaranteed that it would achieve completion of the project by 20 October 1999. Order under Pt 31 r 2 5 The parties were agreed that some of the issues in the proceedings should be referred to a referee for enquiry and report pursuant to Pt 72 r 2(1). To facilitate that, I made an order pursuant to Pt 31 r 2 that I should decide separately all issues in proceedings 55021 of 2001 and 55010 of 2002 other than: (1) The claims made by Feteni and CSA relating to alleged defective works (including lift system) performed by Stuart; (2) The claims made by Feteni that it is entitled to set off any damages other than monetary entitlements it may have arising out of the alleged defective works (including lift system) against any liability it may be found to have to Stuart; and (3) The quantification of the delay costs claimed by Stuart relating to EOT claims 2, 3 and 4. 6 The excepted matters are to be the subject of the proposed reference. An order for reference will be included in the orders to be made consequent upon publication of these reasons. The issues for decision 7 I directed the parties to furnish a list of the issues that would require decision by me, having regard to the order under Pt 31 r 2. After considerable negotiation, Stuart produced the following list: " STUART PTY LTD v FETENI PTY LTD & ORS SUPREME COURT – CONSTRUCTION LIST – 55021/01 List of Issues for Determination Issues between [Stuart] and [Feteni] 1. Having regard to the terms of the Contract and in the circumstances which occurred, whether the progress of the Works were delayed by: (a) furniture deliveries, and if so: (i) the nature and extent of the delay (by reference to its commencement, cessation and duration); (ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion; and if so: (iii) by how much; (iv) whether the delay was a compensable cause of delay; (b) planters, and if so: (i) the nature and extent of the delay (by reference to its commencement, cessation and duration); (ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion; and if so: (iii) by how much; (iv) whether the delay was a compensable cause of delay; (c) disabled access, and if so: (i) the nature and extent of the delay (by reference to its commencement, cessation and duration); (ii) whether [Stuart] was entitled to an extension to the Date for Practical Completion having particular regard to: (A) whether [Stuart] was responsible under the Contract for the design of disabled access and whether the cause of any delay was beyond the control of [Stuart]; (B) whether clause 9.01A of the Contract disentitles [Stuart] to any extension of time entitlement in relation to disabled access that it would otherwise have; (C) the alleged instructions by or on behalf of [Feteni] in respect of: (1) the re-grading of the footpath; and/or (2) the laying of new pavers as part of such re-grading; (D) whether those alleged instructions constituted a variation; (iii) and if so, by how much; (iv) whether the delay (or parts thereof) was a compensable cause of delay; (d) what delays were concurrent with (a), (b) and (c) such that if it be held that [Stuart] is not entitled to an extension of time for practical completion by reason of those matters, then is [Stuart] otherwise entitled to an extension of time by virtue of those concurrent delays. 2. Having regard to (1), what was the Date for Practical Completion of the Works. 3. What was the Date of Practical Completion of the Works. 4. What is [Feteni's] entitlement (if any) to liquidated damages having regard to the terms of the Contract and the circumstances which occurred and particularly: (a) the Court's findings as to (2) and (3) above; (b) [Feteni's] occupation of the Works prior to the issue by [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, of the certificate of Practical Completion; (c) whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, gave the required notices which would entitle [Feteni] to apply liquidated damages; (d) whether the amounts claimed by [Feteni] to be due to it as liquidated damages are unenforceable as being a penalty; (e) the operation of the grace period referred to in clause 10.14(ii) of the Special Conditions to the Contract; and (f) the operation of Special Condition 73 of the Contract and prevention. 5. Having regard to (4), if [Feteni] is found to be not entitled to liquidated damages, the amount of [Feteni's] entitlement (if any) to damages by reason of [Stuart's] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion. 6. Having regard to the terms of the Contract and in the circumstances which occurred, whether [Stuart] was entitled to a variation in relation to disabled access. [Stuart's] claims against [Edmiston] 7. In the event that [Stuart] is not entitled under the Contract to the claimed extension of time in relation to disabled access, whether [Stuart] is entitled to recover from [Edmiston]: (a) any liability to pay damages to [Feteni] arising from [Stuart's] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion; (b) any loss [Stuart] may suffer arising from any inability to claim from [Feteni] under the Contract: (i) its direct costs and expenses of delay; and/or (ii) a variation, in relation to disabled access. 8. In the circumstances which occurred, whether [Edmiston] was negligent in carrying out the design of the Works and/or in certifying the design of the Works complied with the Relevant Requirements and in particular: (a) whether [Edmiston] owed [Stuart] the duty of care pleaded in paragraph 65 of the Amended Summons; and if so: (b) whether [Stuart] relied upon the letter of 2 June 1998; and if so: (c) whether [Stuart's] reliance was reasonable; and if so: (d) whether [Stuart's] loss was caused by any act or omission of [Edmiston]; (e) whether [Stuart's] loss was caused by: (i) [Stuart's] own breach of contract; (ii) [Feteni's] alleged instructions referred to in 1(c)(ii)(C); (f) if it is found that the loss sustained by [Stuart] was caused by [Edmiston's] negligence, whether [Stuart] was contributory [sic] negligent in causing such damage. 9. In the circumstances which occurred, whether [Edmiston] made negligent misstatements. 10. In the circumstances which occurred, whether [Edmiston] engaged in conduct which was misleading or deceptive or likely to mislead or deceive by issuing the 2 June 1998 letter to [Stuart]. [Stuart's] claims against [Tatton Park] 11. In the event that [Stuart] is not entitled under the Contract to the claimed extension of time in relation to disabled access, whether [Stuart] is entitled to recover from [Edmiston]: (a) any liability to pay damages to [Feteni] arising from [Stuart's] alleged failure to bring the Works to Practical Completion by the Date for Practical Completion; (b) any loss [Stuart] may suffer arising from any inability to claim from [Feteni] under the Contract: (i) its direct costs and expenses of delay; and/or (ii) a variation, in relation to disabled access. 12. In the circumstances which occurred, whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, made negligent misstatements. 13. In the circumstances which occurred, whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, engaged in conduct which was misleading or deceptive or likely to mislead or deceive. [Feteni's] Cross Claim against [Edmiston] 14. In the event that [Stuart] is entitled under the Contract to the claimed extension of time (and delay costs) in relation to disabled access (and [Feteni] is correspondingly not entitled to apply liquidated damages against [Stuart), whether: (a) [Edmiston] owed [Feteni] a duty of care as pleaded in paragraph 28 of the Further Amended Second Cross Claim; and if so: (b) whether [Edmiston] breached any such duty; and if so: (c) whether any breach by [Edmiston] caused the damage alleged by [Feteni]. [Edmiston's] Cross Claim against [Feteni] 15. Whether [Edmiston] and [Feteni] were joint tortfeasors in relation to [Stuart]; and if so: 16. If it is found that [Edmiston] is liable to [Stuart], was [Feteni] also responsible for the loss sustained by [Stuart]. [Edmiston's] Cross Claim against [Tatton Park] 17. Whether [Edmiston] and [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, were joint tortfeasors in relation to: (a) [Stuart]; and/or (b) [Feteni], and if so: 18. If it is found that [Edmiston] is liable to either [Stuart] or [Feteni], was [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, also responsible for the loss sustained by either [Stuart] or [Feteni]. [Tatton Park's] Cross Claim against [Edmiston] 19. Whether [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, and [Edmiston] were joint tortfeasors in relation to [Stuart]; and if so: 20. If it is found that [Tatton Park], by sending to [Stuart] the facsimile transmission dated 13 August 1998 which is at p 570 of Exhibit PX05, is liable to [Stuart], was [Edmiston] also responsible for the loss sustained by [Stuart]. COOGEE SANDS APARTMENTS PTY LTD v STUART PTY LTD & ANOR SUPREME COURT – CONSTRUCTION LIST – 55010/02 List of Issues for Determination 21. What representations (if any) were made by [Stuart] to [CSA] on or about 30 August 1999; and 22. Whether [CSA] relied upon any representations found to be made by [Stuart]; and if so: 23. Whether [CSA's] reliance was reasonable; and if so: 24. Whether [CSA] suffered any loss as a result of such reliance; 25. Whether [Stuart] engaged in conduct in contravention of s52 of the Trade Practices Act (1974) Cth; 26. Whether [Mr Alexander Stuart] was involved in that contravention for the purposes of s75B and s82 of the Trade Practices Act (1974) Cth; 27. Whether [Stuart] negligently misstated to [CSA] the date of completion of the building; 28. The amount of damages (if any) to which [CSA] is entitled under section 82 of the Trade Practices Act in respect of (25) and (26) and at common law in respect of (27)." 8 As to paragraph 1(d) of the issues in proceedings 55021 of 2001: the parties agreed that this was not to be decided by me and that it should be the subject of reference if necessary. 9 As to paragraph 4(f) of those issues: Feteni did not agree that this was in issue between it and Stuart. 10 As to paragraph (6) of those issues: the parties agreed that this, to some extent, overlapped the issues stated in paragraph 1(c), and that I was not required to consider any question of quantum relating to that variation. 11 As to paragraphs 12 and 13 of those issues: the shaded words were inserted by consent into the document that was propounded by Stuart. The contract 12 The terms of the contract were based on the standard form Building Works Contract – JCC– F 1994 Without Quantities and With Staged Practical Completion. The standard form was very substantially amended, because there was no provision for staged practical completion. At least some of the problems of interpretation that the parties argued arose from the conversion process. 13 By clause 1.02.04 and Appendix Item B.4, the "Works" under the contract were defined as follows: "The whole of the work to be completed and executed by the Builder, namely. To refine and revise the Preliminary Documents into the Final Documents all of which shall comply with the requirements of statutory authorities having jurisdiction over the Works and otherwise in conformity with this Contract but not limited to [sic] the Building Code of Australia and the Scope of Works by renovating and constructing additions to the existing building so as to provide to the Proprietor a fully operational strata titled 4 star (as defined and satisfy the prerequisites of [sic] the Australian Automobile Association classification scheme dated January 1997) Serviced Apartment building and which shall be completed in one stage or stages [sic] as provided herein." 14 Despite the reference to the works as including "one stage or stages" the contract provided, as I have said, that there were to be no stages. 15 The start date was defined as 31 August 1998, or such other date as might be agreed, subject to conditions as to "finance satisfactory to the proprietor … [being] approved and in place" by that date. It does not appear that any other date was agreed as the start date. 16 The date for practical completion was, subject to extensions of time, 28 weeks after the start date. 17 Stuart's obligations were said to be to commence execution of the works once the proprietor made the site available (clause 1.03.01); to proceed "regularly and diligently" with the works in accordance with the contract (including the "Contract Documents" being the "Final Documents"); and to bring the works to practical completion by the date for practical completion (clause 1.03.03). 18 By special condition clause 3.3, this last obligation was expanded as follows: " AND in so doing and as part of the Final Contract Sum revise the Preliminary Documents into the Final Documents and comply with all Building Approvals/Consents and Development Approvals/Consents and Conditions of the responsible Local Government Authority … and undertake and carry into effect the construction duties of the Builder as set out in this Contract." 19 The "Contract Documents" were said to be those listed in item B.5 of the Appendix (clause 1.02.06). Identification of that appendix was not an easy matter. The appendix to the JCC-F 1994 form of contract was amended to refer to "pages 28 to 34 inclusive" of the "Appendix in Annexure B". That appears to have been a misprint for, or misreference to, pages 30 to 34 of that appendix. If that assumption is correct (and the parties seemed to think that it was) then the Contract Documents were defined, by item B.5, to be the documents "to be completed". There was nothing to suggest that there was an annexure "B" to the special conditions (but the special conditions themselves were annexure "B" to the contract). Annexure "C", however, did identify a number of documents, most of which were not in evidence and some at least of which appear to be of no conceivable relevance. 20 The "Final Documents" into which the Contract Documents were to be revised are referred to in a number of places in the contract (specifically, in the special conditions) but do not appear to be defined except in so far as, by inference, they are the product of revision of the "Preliminary Documents" or "Contract Documents". 21 By special condition 2, the contract was further complicated by the insertion into it of the concept of a "preliminary period" and of provisions relating to that concept. The preliminary period was the "period commencing on the date hereof" (ie, presumably, 14 July 1998) and ending on the Start Date (ie, absent any agreement to the contrary, 31 August 1998). 22 The "Works" were then divided into a number of modules, which were described in special condition 2 (or, more accurately, in clause 1.03A.1.3 of the conditions of contract as inserted by special condition 2). The description of the modules occupied almost four pages, but it is only necessary to refer to the "design modules" set out in part A of the description of the modules. For present purposes, not all the design modules need to be set out. Those that are said to be relevant are: "1. DESIGN MODULES including but not limited to the following : - A. In consultation with the Proprietor the Builder will select Consultants (and whether or not such Consultants have previously been retained by the Proprietor) PROVIDED THAT as and from the time of such retainer the Proprietor shall be responsible for … the … costs and expenses of such consultants. … C. The revision of the Preliminary Documents and co-ordination between Consultants of the revision process in relation to the Preliminary Documents (as listed in clause 1.03A.1.6.1.) D. Revision of the Preliminary Documents as listed in clause 1.03.1.6.1 so as to accommodate them into the design and to become the Final Documents but incorporating no less than or lesser standard as required by : - 1. … 2. BA and DA consent conditions including specifications and documentation; 3. Building Code of Australia; … E. … " 23 Practical Completion was defined by clause 1.02.10 of the conditions of contract as follows: "1.01.10 Practical Completion – The state of being substantially complete and fit for use and/or occupation by the Proprietor, all tests required under the provisions of this Agreement having been satisfactorily completed – AND the obtaining by the Builder from the relevant Local Council of a Building Certificate under the Local Government Act; a Certificate of Classification under the Building Code of Australia; notification of change of or special by-laws as required by the Local Council; Local Council approved Section 88B Instrument and Strata Plan all duly signed by the Local Council and in registrable form (refer to special condition 73)". and omissions or defects being limited to items: (See special condition 1.6)." 24 The shaded words were inserted by special condition 1.6. 25 Special condition 1.6 makes it necessary to consider special condition 73. Relevantly, that reads as follows: "If the Builder has complied with all of its obligations hereunder but is delayed as to all or any one of the matters hereinbefore referred through no fault of the Builder, and such delay shall have occurred for a period of twenty one (21) days and has not been satisfactorily resolved by the end of that period, then, the Builder shall not be in default hereof and provided the Builder has complied with all of its other obligations hereunder to obtain Practical Completion, then Practical Completion shall be deemed to have occurred the day following expiry of the said period of twenty one (21) days." 26 Clause 9 of the conditions of contract, as amended by the special conditions, reads, relevantly, as follows: "9.01 NOTIFICATION OF DELAYS If the commencement or progress of the execution of so much of the Works constituted by any one or more of the Stages is or will be delayed by any cause beyond the control of the Builder including any act (other than any instruction by the Architect as to a Variation) default or omission on the part of the Proprietor, the Architect, any Separate Contractor, employee or agent of the Proprietor in a manner which might reasonably be expected to result in a delay in that Stage or those Stages reaching Practical Completion the Builder shall, if he desires to claim an extension of time for reaching Practical Completion of that Stage or any one or more of those Stages, as soon as practicable and in any event not later than fourteen (14) days after the cause of delay arose give a notice in writing to the Architect identifying the affected Stage or Stages and stating the nature, the cause and, where possible, the extent of the delay. 9.01A Unless otherwise contained herein the Builder will not be entitled to any extension in time caused by any non-compliance with any Regulations (Building Code of Australia [sic] Local Council and/or Regulatory Authorities) or for any industrial disputation originating from or arising out of things done or not done on the Site or in respect of labour employed in and about the Site either directly by the Builder or labour employed through other contractors, sub-contractors and/or suppliers or originating from any act committed by any person employed on the Site or committed off the Site giving rise to industrial disputation. 9.02 NOTICE OF CLAIMED EXTENSION As soon as practicable the Builder shall give a further notice in writing to the Architect stating a fair and reasonable time or times by which in his opinion the time or times for Practical Completion of the identified Stage or Stages should be extended. 9.03 ARCHITECT'S DETERMINATION Subject to the Builder having complied with the provisions of Clauses 9.01 and 9.02 the Architect shall as soon as practicable but not later than fourteen (14) days after receiving the Builder's notice pursuant to Clause 9.02 determine what, if any, extension or extensions of time for Practical Completion of the particular identified Stage or Stages shall be granted to the Builder and shall thereupon notify in writing the Builder accordingly. … 9.05 ARCHITECT MAY EXTEND Notwithstanding that the Builder has not given either of or both notices pursuant to Clauses 9.01 and 9.02 the Architect may at any time by notice in writing addressed to the Builder extend the time or times for Practical Completion of any one or more Stages if in his opinion the Builder would otherwise be entitled to such an extension or extensions. 9.06 CONDITION PRECEDENT TO EXTENSION OF TIME Notwithstanding the preceding provisions of this Section 9 the Builder shall not be entitled to any extensions of time unless he shall have taken proper and reasonable steps both to preclude the occurrence of the cause of delay and/or to avoid or minimise the consequences thereof. … 9.10 OCCUPATION BEFORE PRACTICAL COMPLETION Occupation of a Stage prior to Practical Completion of the Stage shall be dealt with as follows: 9.10.01 Should the Builder fail to bring a Stage to Practical Completion by the Date for Practical Completion for that Stage then the Proprietor may with consent of the builder and after issue by the Architect of the notice of occupancy hereinafter referred to occupy the whole or any portion or portions of those parts of the Works constituting that Stage prior to Practical Completion of that Stage. 9.10.02 In any such case the Architect shall after agreement between the parties as to the matters contained therein issue both to the Builder and to the Proprietor a notice of occupancy stating: .01 That the whole or certain stated parts of the Works within the particular Stage may be occupied prior to the particular Stage reaching Practical Completion; .02 the date or dates upon or after which such occupation may take place; .03 the Date or Dates for Practical Completion of each Stage or the Particular Stage; and .04 the effect of such occupation upon the provisions of this Agreement relating to insurance, liquidated and ascertained damages, security and the Defects Liability Period. 9.10.03 The provisions of such notice shall take full effect notwithstanding any provisions of this Agreement to the contrary or inconsistent therewith. … " 27 The shaded words were amended, or inserted (as the case may be), by the special conditions. It should also be noted that the special conditions deleted clause 9.10.04, which had read as follows: "9.10.04 If the Proprietor occupies and/or uses the whole or any portion or portions of those parts of the Works constituted any Stage or Stages prior to Practical Completion … in the absence of any such agreement and such notice or of [sic] other written agreement between the Proprietor and the Builder then the whole of the particular Stage or Stages, as the case requires, shall be deemed to have reached Practical Completion on the date of commencement of such occupancy and/or use." 28 Liquidated damages were dealt with by clause 10.14. (As drafted, that clause had dealt with the application of liquidated damages where Stuart failed to bring a stage of the works to practical completion by its date for practical completion.) It reads as follows: "10.14 LIQUIDATED AND ASCERTAINED DAMAGES If the Builder shall fail to bring a Stage to Practical Completion by the Date for Practical Completion for that Stage: 10.14.01 The Architect may give notice in writing to the Builder and to the Proprietor that in his opinion the particular Stage ought reasonably to have been brought to Practical Completion at some earlier date to be stated in that notice, not being earlier than the Date for Practical Completion for that Stage. 10.14.02 If such notice is given the Builder shall pay or allow to the Proprietor a sum calculated and certified by the Architect at the rate stated in Item O of the Appendix as liquidated and ascertained damages applying to the particular Stage for the period (commencing from the date so stated) during which the particular Stage shall remain or have remained not brought to Practical Completion. 10.14.03 In the event of no further moneys being payable to the Builder or in the event of the sum calculated in accordance with paragraph 10.14.02 exceeding the amount remaining payable by the Proprietor to the Builder, the Proprietor shall be entitled to recover the same, or any such excess, as a debt due to the Proprietor by the Builder. 10.14.A (See special condition 54)." 29 Clause 10.14A was inserted by special condition 54. It reads as follows: "10.14A (i) If the Builder completes the Works after the date nominated for Practical Completion THEN the Builder shall pay to the Proprietor the sum of $15,000 per week or pro rata on a daily basis for part thereof from such date so nominated up until the date that Practical Completion is attained PROVIDED THAT if the effect of the Builder not so completing the Works by the date nominated for Practical Completion is that the Proprietor's mortgagee increases the interest rate in respect of funds borrowed by the Proprietor in relation to the funding of this Contract THEN the reference herein to $15,000 per week shall be amended to $20,000 per week. (ii) The Builder shall be entitled to a grace period of up to but not exceeding four (4) weeks during which Practical Completion has been delayed and not attained by the date nominated for Practical Completion, which grace period shall be calculated from the date nominated for Practical Completion." Findings on credibility 30 It is necessary to consider in some detail the way in which Stuart performed (or sought to perform) its obligations under the contract. There were conflicts in the evidence of Stuart and the evidence of Feteni, and those conflicts assume particular relevance for events that occurred after 25 August 1999. Accordingly, before I turn to the narrative of events, I will set out my findings on credibility. 31 Stuart's principal witness of fact was its project manager, Mr Mark Georgiadis. Stuart also called, on issues of fact, its (then) managing director, Mr Alexander Stuart, and its foreman on the project, Mr Paul Dunand. 32 I have come to the conclusion that, in substance, I accept the evidence of Messrs Georgiadis, Stuart and Dunand. In general, where it conflicts with the evidence of fact called for the defendants, I prefer it. 33 To the extent that demeanour is a reliable guide, each of Messrs Georgiadis, Stuart and Dunand impressed me as someone who was doing his best to tell the truth to the best of his recollection. 34 The evidence of Mr Georgiadis was, to a very substantial extent, substantiated by contemporaneous documents – specifically, communications that he sent to other parties (usually, to Tatton Park) as relevant events occurred. It does not appear that Mr Georgiadis maintained a separate diary or system of file notes. His evidence was, in substance, that he documented relevant events, instructions or decisions in his correspondence. I see no reason to doubt that evidence – particularly where there is not, in the documents to which I have been taken, any indication of disagreement with facts stated in his correspondence. (By this I mean that although there were replies to most, if not all, of the documents emanating from Mr Georgiadis, those replies did not take issue with any facts stated in Mr Georgiadis' documents.) 35 Further, I think, on the critical issues, Mr Georgiadis' evidence is consistent with what, objectively regarded, is likely to have happened. This applies, in particular, to the account given by Mr Georgiadis of the meeting of 30 August 1999. Mr Stuart participated in that meeting and the same comment applies equally to his evidence. I discuss and analyse the different accounts of that meeting, against its factual background, in para [62] and following below. 36 Mr Georgiadis had a clear and detailed recollection of the relevant events. That is not surprising, given his day-to-day involvement. There was no occasion of any significance on which his recollection was shown to be faulty; and when it was, he readily admitted the error. 37 Mr Stuart had little day-to-day involvement. Indeed, his major involvement was in the events leading up to, and during, the meeting of 30 August 1999. Accordingly, one would not expect him to have had a clear and detailed recollection; nor did he profess to have one. Again, my acceptance of his evidence on the meeting of 30 August 1999 (which is really the only controversial matter with which his evidence dealt) is facilitated because it is consistent with what I regard as the probabilities, objectively ascertained. 38 No attack was made on the credibility of Mr Dunand's evidence. His recollection of detail was hampered by the fact that the site diary (for the maintenance of which he had been responsible) was lost. It was not suggested that his evidence that it was, indeed, lost was false; or that he had played any part in its being "lost". To the extent that Mr Dunand had a recollection of relevant events (I interpose that he was not a participant in the meeting of 30 August 1999), I accept him as a witness of truth. 39 The principal witness of fact on whom Feteni relied was Mr Paul Hickman. Mr Hickman was a director of Tatton Park and, on the evidence, was the person who was responsible for the performance of Tatton Park's role as project manager (for Feteni) and "Architect" (see para [1] above). 40 I regret to say that I do not regard Mr Hickman as a witness on whose evidence I could generally rely, to the extent that it was in conflict with other evidence in the case. Firstly, to the extent that considerations of demeanour are of any assistance, I did not regard him as impressive. 41 Secondly, on at least two occasions, in relation to crucial matters, he flatly contradicted his own evidence. At T 317.5-.10, he agreed that, as at 25 August 1999, he had no complaints about Stuart's performance; but at T 318.45 he "would have had concerns prior to 25th"; see also T 319.20, where he repeated the denial. Again, at T 343.45, he agreed that it would have been easy to prepare a "furniture programme" (ie, a programme for the delivery and installation of furniture); but at T 344.5, he asserted that it was not possible to do so. 42 Thirdly, his evidence on crucial points was marked by obfuscation (for example, as to his rejection, on no reasoned basis, of the tentative programme for completion sent to him by Mr Georgiadis on 25 August 1999: T 319.25-320.5). 43 Fourthly, on other crucial points, his evidence was simply incapable of belief (for example, his attempts to explain the circumstance that the only note that he had made of the meeting of 30 August 1999 contained no reference to the alleged "guarantee": T 327.20-.40, 329.25-332.50). 44 Fifthly, on a number of occasions, his evidence was tainted by evasion and prevarication (for example, the evidence lastly referred to relating to his note of the meeting of 30 August 1999; and see also his evidence as to the "builder's critical path" and the "client's critical path" at T 316.30-317.5), and his evidence as to the "furniture programme" requested by Stuart from him (or Feteni) (at T 340.40-344.40). 45 The matters to which I have referred, individually and together, made it very difficult for me to accept Mr Hickman's evidence where it was in conflict with other evidence that I found, on its own merits, to be credible. However, a final – and compelling – reason for not accepting his evidence, insofar as it conflicts with (in particular) the evidence of Messrs Georgiadis and Stuart is that, on the crucial area of conflict – the events at the meeting of 30 August 1999 – I regard Mr Hickman's account as inconsistent with the probabilities, objectively viewed. To anticipate, briefly, what I say in paras [66] to [70] below: I find it impossible to accept that an experienced builder in Mr Stuart's position, supported by an experienced project manager with Mr Georgiadis' knowledge, and cognisant of the circumstances that existed as at 30 August 1999, could have given the guarantee that Mr Hickman asserts was given. 46 Feteni also relied on the evidence of Mr Sam Papallo, a director and shareholder, and on the evidence of his late brother, Mr George Papallo. It was apparent that Mr Sam Papallo had no detailed recollection of events. Further, there were some difficulties in his evidence. For example, a crucial part of the case for CSA in proceedings 55010 of 2002 related to the alleged agreement between it and Feteni for CSA to have the management of the Coogee Sands Apartments (after the completion of the construction works) and to pay Feteni rent. The documentary evidence, consisting of minutes of meetings of Messrs Sam and George Papallo, being the directors of the two companies, suggested that this had occurred on 16 August 1999. However, his oral evidence was that "the meetings would have to have been given [sic] at a time after October 1999 and probably prior to the commencement of business in November 1999" (T 378.10-379.5; see also T 377.5-377.25). The minutes now relied upon were not kept in the regular minute books of Feteni and CSA, where one might expect them to be kept (see exhibits PX 9 and PX 10); instead, they were kept "in a file in my office" (T 379.10). Indeed, on Mr Sam Papallo's evidence, the circumstances in which the alleged minutes now relied upon were brought into existence are unclear (T 379.20-381.20, noting that, at this last reference, Mr Sam Papallo denied that the minutes had been backdated). That having been said, Feteni's solicitor, Mr John Anthony Snelgrove, gave unchallenged evidence as to the date of the meetings to which the minutes related. I therefore do not rely on the anomalies as to the minutes in forming my views as to Mr Sam Papallo's credibility. I do, however, rely on his inconsistent oral evidence, to which I have referred. 47 Again, as with Mr Hickman, I do not accept Mr Sam Papallo's account of the meeting of 30 August 1999, insofar as it asserts the giving of a guarantee, simply because I find this inconsistent with the probabilities objectively viewed. 48 Mr George Papallo died on 22 April 2003. His affidavit was tendered and admitted under s 63 of the Evidence Act. It is apparent from the text of the affidavit that Mr George Papallo had had regard to the affidavits of his brother before he swore his own affidavit. For that reason, and also having regard to the circumstances that I have referred to in relation to the evidence of Mr Hickman and Mr Sam Papallo, and to the (obvious) circumstance that Mr George Papallo's evidence was not tested by cross-examination, I do not regard it as providing corroboration of the evidence of Mr Hickman and Mr Sam Papallo sufficient to cause me to accept their evidence where it differs from that of Mr Georgiadis and Mr Stuart. Events leading up to 30 August 1999 49 The "Start Date" under the contract was extended to 8 September 1998 and, it appears, Feteni gave Stuart possession of the site on that date (although, for some unexplained reason, the preliminary period was extended up until 14 September 1998). 50 Work proceeded thereafter under the contract but was much affected by rain. An extension of time (EOT 1) for 52.5 days was granted on 2 February 1999. A further extension of time for 24 days was granted on 2 June 1999. A further extension of time for 10 days was granted on 11 August 1999. The effect of those extensions of time was that, Stuart and Tatton Park agreed, the date for practical completion was extended up until 11 October 1999. 51 Mr Hickman agreed that he had no concerns with Stuart's performance up to 4 August 1999. (This was the date on which Stuart made the last extension of time claim referred to in the preceding paragraph, the effect of which was, as noted, to extend the date for practical completion until 11 October 1999.) 52 On 25 August 1989, Mr Georgiadis sent to Mr Hickman an "[u]pdated program". His covering note stated (omitting formal parts): "Updated program attached. Please note that the revised completion date is tentative at this stage as we are still awaiting information and decision from yourselves and as such the full extent of the delays can not yet be determined. Alex (Stuart) has asked that I remind you to organise a meeting with the client for Monday and advise the time and location ASAP to discuss the program and outstanding issues." 53 The programme showed an estimated completion date of 5 November 1999, with the critical activities being works in stair 1 and stair 3 and, thereafter, "Touch ups and Final Clean". 54 Mr Hickman responded the same day, stating (omitting formal parts): "On behalf of our client we confirm receipt of your latest programme dated 25.8.99 and advise that we do not accept the finish date as noted and place you on notice once again that any delays to your completion date of the 11.10.99 will incur substantial and consequential damages. Any change to the 11.10.99 would require your justification within the terms of the contract. Please advise what these contractual justifications are. Your response is required by 2.00 pm tomorrow being Thursday 26.8.99. Upon receipt of your response we shall confirm a meeting time on Monday." 55 Mr Georgiadis replied, again on 25 August 1999, stating (omitting formal parts): "As previously discussed, the full extent of the delays are not known at this stage as there are several items still to be finalised by yourselves as well as a number of recent variations which have to be considered. In the interim we have submitted the revised program to show you the anticipated delay. We will be in a position to submit a thorough delay claim with the relevant backup when the full extent is known. To that end we are currently liaising with all our subcontractors with the view to accelerating the program and reducing the impact on the completion date. The meeting requested by Alex Stuart for Monday is about trying to minimise the delays and prevent further delays in the interest of the client." 56 Mr Hickman agreed that: (1) As at 26 August 1999, it was correct to say, as Mr Georgiadis had said in the document last referred to, that "there are several items still to be finalised by yourselves" (ie, by Tatton Park and/or Feteni). (2) It was also correct to say that there were "a number of recent variations which have to be considered". (I interpose that the evidence showed, as Mr Hickman agreed, that variation instructions continued to be given as late as December 1999, and January, February, March and April 2000, most of which he approved.) (3) He understood that the programme sent on 25 August 1999 could not be considered because there were still matters to be resolved and that it was at least a possibility that the 5 November 1999 completion date would "blow out" further. 57 Against that background, Mr Hickman's out of hand rejection of the programme of 25 August 1999 is, frankly, incomprehensible. That view of Mr Hickman's action is reinforced by his concession (T 319.30-35) that his only concern with the programme was its finish date. He could not recall how long he spent assessing the programme, nor could he recall if he had observed anything in its logic, its sequencing or its duration that would cause him to doubt that it was not a proper programme setting out an estimated end date to the best of Stuart's ability having regard to the information that, as he acknowledged, Stuart required. However, he agreed that, had he formed a view that it was not a genuine estimate, he would have recorded that view in writing, and that there is no such recorded view (T 319.55-320.5). I have no doubt that, in fact, Mr Hickman did accept that the programme was a genuine attempt by Stuart to estimate the end date, and that he did not find any fault with it. I find his purported lack of recollection on this point to be no more than prevarication. It is worth noting that no attempt has been made to impeach the programme or to suggest, let alone demonstrate, that it was other than a genuine estimate prepared to the best of Mr Georgiadis' ability, based on what was known to him as at 25 August 1999. 58 In truth, I think, Mr Hickman had abandoned any attempt to act in an objective or impartial manner by 25 August 1999, and was acting solely in his role as project manager for Feteni. I regard his actions, in relation to the programme of 25 August 1999 and thereafter, as inconsistent with the impartial performance by him, on behalf of Tatton Park, of the role of "Architect" under the contract. 59 The information that Stuart required included the dates for delivery of furniture: what was referred to in correspondence and evidence as a "furniture programme". I will consider this evidence in detail when I deal with EOT 2, relating to furniture. It is sufficient, for present purposes, to note that on 13 August 1999 Mr Hickman had asked Mr Georgiadis to "advise as to the current expected date for completion of painting and laying of carpets to the units on a floor by floor basis, in order that George can programme delivery of furniture", and that, on 3 September 1999, Mr Georgiadis replied, attaching a "carpet laying scheduled [sic]", stating that the carpet layers "should be able to complete an average 12 rooms per week" and asking "that you do not commence furniture deliveries until 24 September". 60 On 27 August 1999, Mr Georgiadis sent a further note to Mr Hickman. It stated (relevantly and omitting formal parts): "Items for discussion on Monday: 1. Identifying items critical to the opening of the apartments. 2. Discuss possible changes to achieve the above. 3. Identify works that can be carried out after the opening. … As discussed, given the delays in decisions and recent variations, we now have to work on several fronts at the same time. Some of the problems with the critical trades are [details were then given in relation to ceilings, tiling, renderer, shower screens, handrails, lifts and fitout.] In order to minimise the impact of the delay we are currently seeking additional men from the important trades at a time when resources are scarce in order to determine what is achievable. We have been given undertakings by the ceiling rendering and tiling trades to boost their crews in an attempt to compress the program as much as possible." 61 Mr Hickman agreed that this was, in essence, an agenda for the meeting that was held on Monday 30 August 1999. The meeting of 30 August 1999 62 There is a substantial discrepancy in the evidence as to some of the things that were said at the meeting. For the reasons that I have given, I think that the account given by Messrs Georgiadis and Stuart is substantially accurate. 63 In their affidavits, Messrs Sam and George Papallo and Hickman all had Mr George Papallo saying words to the effect of: "I am now taking my Feteni hat off and putting on my Coogee Sands Apartment hat on [sic], as the operator … When can the operator get occupation of the building? … There are many things to get organised before the opening and we need to plan … ." 64 Each of those gentlemen has Mr Stuart replying, in substance: "I guarantee 20th October." 65 In cross-examination, Mr Hickman said that Mr George Papallo did not refer to putting on a "Coogee Sands" or "Coogee Sands Apartments" hat, but merely an "operator's" hat. This discrepancy, of itself, does not seem to me to be significant. However, the real difficulty in accepting the account given by Messrs Sam and George Papallo and Hickman is the sheer improbability that Mr Stuart would have given an unconditional guarantee. 66 As at 30 August 1999, Mr Stuart was not closely involved in the project. He relied on Mr Georgiadis, in whom he reposed complete confidence. Mr Georgiadis had briefed Mr Stuart prior to the meeting. Mr Stuart knew that Mr Georgiadis had prepared a programme showing, in effect, 5 November 1999 as the earliest completion date assuming that (as at 25 August 1999) all outstanding requests for information were satisfied and that there were no further variations directed that would have an adverse impact on the date for practical completion. Mr Stuart knew, as at 30 August 1999, that the requests for information had not been satisfied. It must have been apparent to him, as an experienced and capable builder (as it was apparent to Mr Hickman, as an experienced and capable project manager), that even the date of 5 November 1999 was likely to "blow out". 67 Further, the project had been very severely affected by wet weather. As at 30 August 1999, extensions of time totalling 86.5 days had been sought and granted for wet weather. 68 If Messrs Sam and George Papallo and Hickman are to be believed, Mr Stuart: (1) would have given a guaranteed completion date about 2 weeks earlier than his own project manager had forecast was achievable; (2) would have given that guarantee knowing that certain crucial assumptions on which the forecast was based had not, 5 days after the forecast was made, been satisfied; and (3) would have taken a gamble, in unconditional terms, that the wet weather that had hitherto severely afflicted the project would cease completely to do so. 69 As to the third point: although, obviously enough, the wet weather would affect either only, or most severely, the outside trades, Mr Hickman agreed that, as at 30 August 1999, there was still outside work to be done. In other words, a recurrence of the wet weather would have had a direct impact on the ability of Stuart to achieve completion by any forecast date. 70 I do not accept that Mr Stuart would have acted, and spoken, in the way alleged by Messrs Sam and George Papallo and Hickman. I do not accept their evidence that Mr Stuart gave an unconditional guarantee of completion. Nor, in the face of Messrs Stuart's and Georgiadis' denials, do I accept the evidence of Messrs Sam and George Papallo and Hickman that Mr George Papallo referred in terms to changing his hat, although I do find that there was reference to the position of (whoever might be) the operator: see paras [77] to [80] below. 71 There are other difficulties with Mr Sam Papallo's and Mr Hickman's account of the meeting. 72 One is that, on 22 June 2000, Mr George Papallo wrote to Stuart disputing an amount claimed by Stuart under the contract and asserting a number of items of damages claimed by CSA. Mr George Papallo referred to "advice that practical completion would occur on 11.10.99". Subsequently, he made it plain that this was a reference to the meeting of 30 August 1999. He referred to "Mr Alex Stuart making deceptive and misleading statements by way of absolute assurances that practical completion would occur on the 11th October 1999". It has never been suggested that Mr Alex Stuart gave a "guarantee" or "absolute assurance" of completion on any occasion other than at the meeting of 30 August 1999, and it must have been to this meeting that Mr George Papallo was referring. But neither Mr George Papallo nor anyone else has ever suggested in evidence that such an assurance was given in those terms at that meeting. 73 Mr Hickman claimed to have no knowledge of that letter. He said that, had he been asked to comment on it, he would have corrected the date to 20 October 1999 (thus confirming that, in his understanding, this was the only date that Mr Stuart had represented, or guaranteed, as a date for completion). The evidence showed that on 13 June 2000, Mr George Papallo had sent a letter in almost identical terms to Mr Hickman (there were immaterial changes to the first paragraph, and to what was the last paragraph of the letter to Mr Georgiadis). The letter to Mr Hickman had added to it: "As you are in full command of the building contract issues we herby [sic] instruct you, to now, also handle this separate claim against Stuart Pty Ltd and Mr Alex Stuart." 74 Mr Hickman did not suggest that he had sought to correct the reference to 11 October 1999, and it is plain, from the terms of the letter that was sent to Mr Georgiadis 9 days after Mr George Papallo wrote to Mr Hickman, that no correction was made. The inconsistency between his act (or omission) in October 1999, and his evidence in March 2004, is irreconcilable. 75 Another matter that makes it very difficult for me to accept Mr Hickman's account is that, as I have mentioned in para [43] above, Mr Hickman's note of the meeting contained no reference to the alleged guarantee, although on any view the guarantee (had it been given) was the most material thing said at the meeting. Mr Hickman's attempts to explain this could most kindly be described as unconvincing. 76 The correspondence that passed between Stuart and Tatton Park after the meeting is inconsistent with the giving of any guarantee: (1) On 1 September 1999, Mr Georgiadis wrote to Mr Hickman referring to "our meeting, whereby the client request[ed] that we endeavor [sic] to have the works completed prior to the 20th October for a large booking they wish to take". The letter set out "the essential items for completion" (including, as the fifth item, "[c]ompletion of as many units as possible"). It pointed out "that the remainder of the works will not be complete until early November". It said that, on a number of assumptions, "we will be able to complete the abovementioned items by 20 October". It is crystal clear from that letter that, firstly, what was being discussed was not practical completion of the works (ie, in their entirety), but completion in fact of sufficient rooms and other works to enable a large booking to be honoured. It is also crystal clear that the works would continue, and that practical completion would not occur until, after 20 October 1999. (2) Tatton Park's response was to insist on 11 September 1999 as the date for practical completion. That response is incomprehensible if, as Mr Hickman (who wrote the letter) now says, a guarantee of 20 October 1999 had been given (and by implication accepted) at the meeting. Otherwise, the most notable feature of Mr Hickman's response was that it failed to mention any "guarantee" that had allegedly been given. (3) On 8 October 1999, Mr Hickman wrote to Mr Georgiadis to advise that "all rooms to the southern façade will not be ready until approximately 6 days after" 20 October 1999, and stating that this was "contrary to your previous advice in the meeting with Alex and our client". That letter referred also to "[t]he agreement you made at our previous meeting … with our client but also with the manager of the Hotel …". (4) On 12 October 1999, Mr Stuart wrote to Mr George Papallo stating that "[w]e have reviewed our program and with the amount of works still to complete we feel it prudent to advise you that regretfully we will be unable to guarantee completion of the project by the 20th October as was previously targeted." Although, in submissions for Feteni, it was suggested that the words "guarantee completion" were consistent with the evidence given by Messrs Sam and George Papallo and Hickman, I do not think that this is right. Those words, in my view, relate to the state of affairs as at 12 October 1999. The word that Mr Stuart chose to describe what had been said on 30 August 1999 was "targeted". In my view, that word is an appropriate description of what was in fact said, as to completion of sufficient rooms to enable a booking to be taken, on 30 August 1999. 77 I find that, at the meeting of 30 August 1999, Mr George Papallo said words to the effect: "Coogee Sands have [sic] taken a large booking for 20 October 1999. The works must be completed by then. Otherwise, we might as well call our solicitors now." 78 I find that Mr Georgiadis replied in words to the following effect: "We cannot guarantee that the whole of the works will be completed by this date. We will do the best we can. We will try and accelerate our programme so that as many of the rooms as possible are finished by then. We are presently waiting on further information and a number of clarifications that are holding it up." 79 I find that there was discussion of the outstanding requests for information, and of the works that needed to be completed, substantially in accordance with Mr Georgiadis' note of 27 August 1999 referred to in para [60] above. I find that either Mr Georgiadis or Mr Stuart said words to the following effect: "You will need to attend to the matters we have discussed today if there is any hope of the apartments operating from 20 October." 80 I do not find that the reference to "Coogee Sands" was, specifically, a reference to CSA. On the evidence, the motel business formerly operated by Feteni at the site was known as the "Coogee Sands Motor Inn", and it was understood that the serviced apartment operation would be known by the similar name "Coogee Sands Apartments". It is, however, clearly enough an indication that the operator of that business (whoever that may have been, or was understood to be) had taken a large booking for 20 October 1999. Extension of time claims: general matters 81 The remaining matters of history that are relevant to the project are best considered by reference to the three controversial extension of time claims. 82 Consideration of those three extension of time claims requires consideration not only of the factual circumstances relevant to each but also consideration of the relevant contractual provisions. Specifically, as to the latter aspect, it is necessary to give consideration to the extent to which Stuart complied with the contractual provisions, as to notification and other matters, in respect of each extension of time claim. 83 Feteni addressed this subject in great detail in its written submissions. Stuart replied to those written submissions. One of the contractual issues raised by Feteni was whether Stuart had complied with clause 9.06 of the contract. As will be seen, Feteni advanced no affirmative case on this issue, in relation to any of the extension of time claims. It contented itself with the submission that there was no evidence that Stuart had taken the necessary steps. The question of compliance with clause 9.06 was not an issue raised on the pleadings, nor was it referred to specifically (or even by implication) in the agreed statement of issues. However, Stuart did not take this point, but made a submission to the effect that it had complied with the requirements of clause 9.06. It may be that Stuart's attitude reflects the fact that, in terms, clause 9.06 is a condition precedent to an extension of time. In any event, since Stuart has not taken the point, I feel constrained to deal with it: although in doing so, I bear in mind that to the extent that the evidence is scant, that may well be explained by the fact that the pleadings did not direct Stuart's attention to the issue. EOT 2: furniture delays The facts 84 The furniture for the apartments was manufactured by a company known as Bindi Industries Pty Ltd ("Bindi"). It included console units for the bedrooms and for the living rooms (the latter units were intended to include a television set). Feteni directed that the living room consoles be "hard wired": ie, that live power be connected to switched outlets mounted inside the consoles: facsimile transmission from Mr Hickman to Mr Georgiadis, dated 1 October 1999. Originally, power for the television units was to be taken from wall mounted switches and it was only the bedroom consoles that were to be hard wired. Clearly enough, the electrical wiring and fit out could not be completed until the furniture was delivered and installed. 85 Mr Georgiadis said that Bindi was not the original furniture supplier and that it was selected, as the result of a change, in about mid 1999. He was not cross-examined on this, nor was it contradicted. It is not clear whether the change in relation to wiring was connected with the change to Bindi as furniture supplier. 86 The purchase order for the furniture, from Pacific Hotel Design (who claimed to be "acting as agents for the project manager and owners of the Coogee Sands Apartment [sic]") to Bindi, was dated 18 June 1999. It noted that installation was to be carried out "no later than 2 days after the carpet installation dates as shown on the builders [sic] bar chart annexed hereto or 2 days from any changes to the carpet schedule as shall be notified …". Unfortunately, the bar chart was not attached to the copy of the purchase order that was tendered. 87 Bindi apparently required a bank guarantee for about 20% of the purchase price. Accordingly, on 21 June 1999, Mr Hickman passed on the purchase order to Feteni's financier, Suncorp Metway Ltd ("Metway"). In that letter he stated, among other things: "Please note that the Bank Guarantee is required urgently as the installation of the above items [ie, the furniture to be manufactured and delivered by Bindi] are [sic] directly linked with the critical path of the project." 88 At first, Mr Hickman sought to explain this paragraph as being written "[f]rom my client's point of view": T 307.10. However, he conceded, the delivery of furniture was "critical for the project", "critical for rooms to open", "critical for handover", and "critical for Stuarts": T 307.20-.35. 89 At one stage in his evidence, Mr Hickman sought to assert that the furniture was indeed ready before deliveries commenced on 11 October 1999 and "it was sitting in the warehouse": T 343.35. That answer was in no way responsive to the question, and I do not think that Mr Hickman could have thought it was. Further, the assertion is not something found in his (or any other witness's) evidence-in-chief, and is not supported by any contemporaneous documentation. I do not accept it. It is likely, although the evidence does not enable me so to conclude, that the real reason that Mr Hickman did not furnish a furniture programme was that he did not, until relatively late in the piece, know when it was that the furniture would be ready for delivery. 90 Generally, the sequence of works was that the rooms would be painted and carpeted, the furniture would be supplied and installed, all wiring would be carried out and then any necessary touch ups to the paintwork would be completed. 91 As I have noted, on 13 August 1999 Mr Hickman requested Stuart to advise the date for completion of painting and carpeting. Mr Georgiadis' updated programme, sent to Mr Hickman on 25 August 1999, indicated "early start" and "early finish" dates for these activities on the various levels. Thereafter, and again as I have already noted, Mr Georgiadis sent a copy of the proposed carpet laying schedule to Mr Hickman on 3 September 1999. 92 On 7 September 1999, Mr Georgiadis sent a facsimile transmission to Mr Hickman that, among other things, requested a copy of Mr Hickman's furniture programme. 93 At a meeting held on 23 September 1999, it was noted that Mr Hickman was "to issue a furniture program ASAP". 94 Furniture installation did not commence on 24 September 1999, in accordance with the request (which was at least implied) in Mr Georgiadis' facsimile transmission of 3 September 1999. On 28 September 1999, Mr Georgiadis spoke to Mr Hickman, asking when the bedroom furniture would be delivered. Mr Hickman said it would not be ready until 5 October 1999. Mr Georgiadis confirmed this in a facsimile transmission to Mr Hickman on the same day. Mr Hickman did not deny Mr Georgiadis' account of the conversation. 95 At a meeting held on 30 September 1999, it was again confirmed that Mr Hickman was "to issue furniture programme ASAP". 96 On 1 October 1999, Mr Hickman sent Mr Georgiadis a facsimile transmission advising that delivery of furniture for levels 5 and 6 would commence on 6 October 1999, and confirming the instruction to hard wire the television consoles. 97 No furniture was delivered on 6 October 1999. On that day, Mr Georgiadis sent a facsimile transmission to Mr Hickman noting that "[w]e have asked on several occasions for an installation program but have yet to receive one", noting that electrical fit out was being delayed by the delay in furniture delivery, and asking "[c]an you please issue us a program tomorrow so that we can coordinate this work". 98 Mr Georgiadis says that he had a brief discussion with Mr Hickman on 7 October 1999, in which he said that Stuart were waiting for the furniture and its installation programme. Mr Georgiadis says that he indicated that if the furniture was delivered the next day, then some rooms could be handed over by 20 October 1999 as planned, but that other rooms "will not be handed over because they are being held up by other variations". Mr Hickman denies this conversation. However, I find that it took place, in substantially the terms alleged by Mr Georgiadis. It was confirmed, in part, by Mr Georgiadis, in his facsimile transmission of 8 October 1999, and, in part, by Mr Hickman in his memorandum of the same date. Between the two documents, essentially the entirety of the matters to which Mr Georgiadis adverts is covered. I find it impossible to accept Mr Hickman's denial, if for no other reason than that his memorandum of 8 October 1999 substantially undermines it. 99 On 8 October 1999, Mr Georgiadis sent a further facsimile transmission to Mr Hickman referring to repeated requests for, and to the failure on Mr Hickman's part to furnish, a "programme for the furniture installation for the project". It also noted that deliveries had been postponed for a third time until 7 October 1999, but that nothing had been delivered or installed. It pointed out that there was over 2 weeks' work in wiring, so that the work could not be completed by 20 October 1999. 100 Mr Hickman's response was to seek to divert blame from Feteni or Tatton Park to Stuart. On 8 October 1999, he sent the memorandum to Mr Georgiadis that I have referred to in part in para [76(3)] above. Relevantly for present purposes, it stated: "Your request for a furniture installation programme is for want of a better word, a snow [sic] screen as no rooms appear to be in any state to accept the same [sic]. Furniture deliveries are now scheduled for Monday 11.10.99 and as such we expect all rooms you wish to place the furniture in to be in a fit and proper state to accept same." 101 It is notable that Mr Hickman did not, in that memorandum, suggest that the furniture was in fact ready to be delivered, or that delivery was being held up simply because of the state of the rooms. Nor did Mr Hickman say so in his affidavit evidence. 102 On 11 October 1999, Mr Georgiadis sent a facsimile transmission to Mr Hickman, in response to the memorandum of 8 October 1999. He noted that "[t]he rooms in question have not changed for the past 3 weeks, they were painted and carpeted promptly to facilitate the installation". He said that Mr Hickman "certainly did not offer this excuse the first 3 times [he] missed [his] installation date". It does not appear that Mr Hickman responded to this transmission at the time, nor did he refer to it in his evidence. I think that his failure to rebut it at the time (particularly given his habit of commenting in writing on matters great and small in other contexts) is significant. I cannot believe that Mr Hickman would have let the accusation go past had he thought that there was a worthwhile response. The clear inference, in my view, is that Mr Hickman realised that he had been caught out in a foolish excuse, and decided to let matters lie. 103 The position taken by Mr Georgiadis is substantially confirmed by an invoice from Stuart's carpet subcontractor, dated 27 September 1999, showing that a substantial quantity of carpet had been supplied and delivered. It is also supported by an independent assessment of Stuart's progress claim No. 13, dated 30 September 1999, showing that the "floor coverings" trade work was 83% complete. (The same assessment showed that the works overall were 87% complete.) 104 Deliveries of furniture did not commence until 11 October 1999. On that day, a number of "Bedside Tables – Standard with false Drawer Front" were installed into a room on level 2, and into a number of rooms on levels 3, 4, 5, 6 and 7. The following day, Bindi wrote to Mr Sam Papallo confirming that delivery and stating, among other things: "We are also concerned that some of the rooms were not carpeted or painted or are being used as storerooms, we will not accept responsibility for furniture being damaged after delivery. Our past experiences with these situations is [sic] that tradesmen will use the cabinets to stand on or as workbenches. Please ensure that this will not happen. Can you please advise when the lift will be ready, we cannot carry the TV cabinets up the stairs, they are too heavy. There were three of us at yesterdays [sic] delivery and towards the end we could not physically carry a bedside cabinet to levels 6 & 7." 105 Mr Georgiadis says that on each floor rooms 13 and 14, being the rooms closest to the stairs, were used as storerooms. Mr Hickman says that there were other rooms used for the same purpose and that, in addition, Stuart had material and equipment "stored in these rooms". There is no evidence that, apart from rooms 13 and 14, the presence of either building material, carpet, material or equipment hindered the delivery and installation of furniture. 106 On 13 October 1999, Mr Hickman wrote to Mr Stuart. That letter asserted, among other things, that "the building is still not in a fit and proper condition to receive furniture". The assertion is a little difficult to understand, given that some 36 bedside tables had been delivered the previous day. Further, it is not supported by Bindi's letter, which refers only to an alleged inability to carry the television cabinets up the stairs. 107 Mr Hickman also said: "We have been requesting for more than 6 weeks when [sic] the building will be in a satisfactory condition to receive furniture, to date we have received only deceptive answers and requests. It is evident that, even at this late date as previously advised the building is not in a fit and proper condition to accept furniture." 108 There is no credible evidence that Bindi was in a position to deliver any furniture prior to 11 October 1999. (I interpose that, thereafter, no further delivery occurred until either 26 October or 1 November 1999: see para [110] below.) Nor is there any support in the correspondence for the assertion of more than six weeks' requests for information as to "when the building will be in a satisfactory condition to receive furniture". The only requests for information that had been made were the requests by Mr Georgiadis for a "furniture programme"; ie, for information as to when, on and after 25 September, furniture would be delivered. They, of course, were the requests that Mr Hickman chose to ignore, both at the time and in his evidence-in-chief. The oral evidence that he gave on that topic was (viewed in the most favourable light) confused; and in reality, I think, prevaricating: see T 340.50-344.40. It should be noted that Mr Hickman conceded that Stuart needed the programme for the completion of its works (T 341.50, .55-342.5) and that he agreed to provide it in the meetings to which I have already referred (T 342.5). When asked why he did not give the furniture programme, he said "I cannot recall": T 342.40. He said that he did not hand it over because "Stuarts weren't ready": T 343.30. In reality, as his answers at T 343.45-55 showed, there was no furniture programme in existence that could have been handed over. 109 Mr Georgiadis says that, between 13 and 20 October 1999, he and Mr Stuart had a discussion with Mr Hickman relating (among other things) to the delivery of furniture. He says that Mr Hickman promised that the television units would be delivered and installed by 20 October 1999. Mr Stuart does not give evidence of any such conversation. Mr Hickman denies that it occurred. It was not confirmed in any contemporaneous document. Notwithstanding my general preference for the evidence of Mr Georgiadis where it conflicts with that of Mr Hickman, I do not find that the conversation took place. However, I have no doubt that Mr Georgiadis frequently asked Mr Hickman when it was that the balance of the furniture would be delivered. 110 Mr Georgiadis says that there was no delivery of furniture after 11 October until 1 November. He refers to a transport invoice and says that even if the furniture that was referred to in it was delivered on 26 October 1999 (as the invoice stated), it was not installed until 1 November. Mr Hickman does not deny this evidence and I accept it. Mr Georgiadis also says that, once the units were delivered, they had to be modified so that they could accept wiring. Mr Hickman does not deny this but says, in substance, that until he read Mr Georgiadis' affidavit he was not aware of this fact. 111 Mr Georgiadis had a discussion with Mr Hickman on 2 November 1999, in which he said, among other things, that completion of the building would be delayed by a further one to two weeks because of the variations and in which he referred to the commencement of delivery of television consoles on 1 November 1999. Mr Hickman denies that this conversation took place. However, on 3 November 1999, Mr Hickman sent a memorandum to Mr Georgiadis referring to a meeting on 2 November and purporting to confirm a number of matters that had been agreed. There was further correspondence between Messrs Georgiadis and Hickman on that day. Significantly, Mr Georgiadis referred to delays because the television consoles had been promised by 20 October but were not delivered until 1 November and were still to be installed, and referred also to the late supply of bedside consoles. Mr Hickman responded to that and noted that "[m]ay [sic] of your points are incorrect and not acceptable" and listing "his comments to some of the items". Mr Hickman did not see fit to comment on the matters to which I have referred. In my view, particularly having regard to the nitpicking nature of the comments that he did make, that is a strong indication of the substantial accuracy of at least that part of Mr Georgiadis' message. 112 On 13 November 1999, about 40 rooms were completed and, according to Mr Georgiadis, were ready to be handed over. Mr Hickman does not dispute this. There is a dispute as to how many rooms were in fact taken by Feteni. 113 On 17 November 1999, Mr Georgiadis asked Mr Hickman when the remaining furniture would be delivered and what was to happen in relation to consoles that Bindi had installed in the wrong rooms. Mr Hickman replied that the remaining furniture would be delivered on 18 November 1999 and that a variation, relating to the wrongly installed consoles, was "sent to site 18.11.99". A further delivery was made but, it appears, there was still further furniture required. Mr Georgiadis says, and Mr Hickman does not dispute, that there was a further delivery in mid December 1999, and that the final delivery took place on 23 December 1999. 114 There is a volume of evidence relating to work that, according to Mr Hickman, was required to be done to bring rooms to a state for handover. It is unnecessary to consider that evidence in detail given that it does not seem to be in dispute that, following delivery and installation of furniture and completion of wiring, touch up and cleaning works remained to be done. Mr Georgiadis made the point, in a facsimile transmission to Mr Hickman of 26 November 1999, that the majority of the alleged defects "were rectified with [sic] half an hour". Mr Georgiadis also made the point that a number of the alleged defects were in fact variations. Mr Hickman did not at the time challenge those propositions; nor does he in his affidavit evidence. 115 On 2 December 1999, Mr Georgiadis wrote to Mr Hickman claiming "an extension of time of 5 weeks due to the late supply of furniture" and referring to the delayed delivery of consoles. He stated that "this delay is concurrent with other client delays as previously notified" and that there were "further delays". The nature of those further delays was amplified in correspondence dated 14 December 1999. 116 On 14 December 1999, Mr Hickman rejected the claim for an extension of time "as the supply and installation [of furniture] has no bearing on Stuarts [sic] handing over the building or on Practical Completion". Mr Hickman did not seek to reconcile this ground of rejection with his assertion to Metway, and his concession in cross-examination, that the supply and installation of furniture was critical to the completion of the project (see paras [87] and [88] above). The expert evidence 117 Stuart and Feteni each relied on expert evidence. Stuart called Mr Gerard King and Feteni called Mr David Plaister. I directed Messrs King and Plaister to confer. They produced an agreed statement. In relation to EOT 2, they stated: "The experts agree that a reasonable extension of time resulting from furniture supply is 27 working days." 118 Mr Simpkins SC, who appeared with Mr Kidd of Counsel for Feteni, submitted that I could not rely on the agreement of the experts because the relevant assumptions and methodology were not proved. I do not accept this submission. The assumptions and methodologies of the experts are set out in their reports. To the extent that any remaining assumptions were unresolved, the record of their agreement states this. Where (as in relation to EOT 2) no assumption is stated, then in my view the proper inference to draw is that the experts concluded, as a necessary part of their agreement that Stuart was entitled to a reasonable extension of time, that (for example) the effect of the delays relating to the supply of furniture was that Stuart was delayed in the completion of the works. I do not accept that it is incumbent upon them to demonstrate the reasoning process by which they reached this agreement. 119 Mr Simpkins further submitted that the agreement of the experts could not be taken to overcome all obstacles: for example, the relevant requirements, as to notice and other matters, of the contract. I do accept this submission. However, in my view, the effect of the experts' agreement is that, if the relevant contractual conditions are satisfied, then Stuart is entitled to an extension of time for the agreed number of days. 120 In relation to other delays (where the experts specify their assumptions), then the effect of their agreement is, in my view, that where the relevant contractual conditions are satisfied, and if (and only if) the specified assumptions are made good, then Stuart is entitled to an extension of time of the agreed number of days. 121 Although evidence-in-chief was led from both Mr King and Mr Plaister, to supplement and explain their agreed position, I do not regard that oral evidence as inconsistent with the conclusions that I have just set out. 122 The oral evidence of Messrs King and Plaister was taken on the voir dire, on the basis that Stuart objected to any evidence that might be seen as an attempt to resile from the agreement that had been reached. I have come to the view that the evidence should be admitted as evidence in the proceedings (Mr Simpkins having tendered it). On reflection, I do not think that either gentleman sought to withdraw from or, indeed, qualify the agreement that had been reached. At least in the case of Mr King, the evidence-in-chief was directed to explaining, or giving background to, the agreement. No inconsistent evidence was led from Mr Plaister, which gives me more confidence in accepting as helpful explanation or background the oral evidence-in-chief of Mr King. 123 The further evidence-in-chief of Mr Plaister was given by way of affidavit. He set out various "assumptions" that he had in mind when he conferred with Mr King and when they produced the written outcome of their deliberations. There is no suggestion that those assumptions were communicated to Mr King, let alone that they became common assumptions, or that they were in some way the foundations of the agreed outcome. I do not regard that evidence of Mr Plaister as being of particular assistance. A strict view might indicate that it should be rejected on the ground of relevance. However, given that I do not see the evidence as being inconsistent with my understanding of the joint position (as recorded in paras [118] to [120] above), I do not propose to take up further time or space on the issue. 124 Much the same may be said of much of the cross-examination of Mr King. Some of the cross-examination undoubtedly is of assistance in enabling a fuller understanding to be gained of the agreed position as between him and Mr Plaister. Some of it is not. Again, given that I do not see any of the evidence as being inconsistent with my analysis, there is no point in going through the cross-examination in minute detail to determine what should be admitted and what should be rejected. Much the same can be said of the cross-examination of Mr Plaister; the only relevant point is that, once again, I do not see anything therein inconsistent with my analysis. 125 I therefore admit the oral evidence-in-chief of Mr King, and the cross-examination of Messrs King and Plaister, as evidence in the proceedings. Construction of clause 9.01 – critical path 126 There was said to be some difference between Messrs King and Plaister as to whether it was necessary, as part of the relevant analysis, to identify a critical path for the works. Mr Plaister appeared to contend that an extension of time should not be allowed unless it could be seen, as a result of that analysis, that the relevant delay was to an activity on the critical path. Feteni certainly advanced, as a criticism of Mr King's analysis, that he had at no stage identified a critical path: T 204.25-.50. The apparent difference between Messrs King and Plaister (at least, before the conclave process took place) is explained clearly at T 212.5-.25; and Mr King's view is encapsulated in his answer at T 212.35: "My view is, if those activities shown as being non-critical are delayed such that the float they have is consumed and then those activities delay completion of the works then, yes, there is an entitlement to extension of time." See also Mr King's evidence referred to in para [138] below. 127 On consideration, that answer appears to suggest that there was no real difference, in point of principle, between the approach of Mr King and the approach of Mr Plaister. Mr King's view was, clearly enough, that it was not necessary to ask whether the delayed work was on the critical path as shown in a current (or the last) construction programme. It was necessary to see whether delay in that work delayed completion overall. That, I think, is tantamount to saying that, once the float in the delayed (ie, prima facie non critical) works was consumed, and those works delayed completion overall, then they were on the as built critical path (or an as built co critical path). If that is correct then I do not think that it is consistent with clause 9.01. 128 To the extent that there remains a difference between Messrs King and Plaister, that difference would appear to arise from their differing views of the application of clause 9.01. 129 Clause 9.01 requires that there be delay to the commencement or progress of the execution of the works. The delay must be the result of a cause beyond the control of Stuart. If Stuart wishes to claim an extension of time, it must give notice as soon as possible and in any event not later than 14 days after the cause of the delay arose. 130 One of the problems in the construction of clause 9.01 is that – unlike many other provisions in the contract – it was not amended to take account of the fact that there was not to be staged completion. Another problem is that there is an apparent ambiguity. 131 The ambiguity relates to the words "in a manner which might reasonably be expected to result in the delay in that Stage or those Stages reaching Practical Completion" (which I shall call "the qualifying words"). Do the qualifying words qualify the immediately preceding words ("any act … default or omission on the part of the Proprietor, the Architect, any Separate Contractor, employee or agent of the Proprietor") (which I will call "the preceding words")? Or do they qualify the words "the commencement or progress of the execution of so much of the Works constituted by any one or more of the Stages is or will be delayed by any cause beyond the control of the Builder" (which I will call "the earlier words")? 132 If the qualifying words qualify the earlier words, then, before an entitlement to an extension of time can arise, there must be: (1) delay of the kind described in the earlier words, which (2) might reasonably be expected to result in a delay in the achievement of practical completion, as contemplated by the qualifying words. 133 I think that the better view of the qualifying words is that they do qualify the earlier words and not the preceding words. I say this because the reference in the qualifying words to "that Stage or those Stages" in context appears to be a reference back to the words "any one or more of the Stages" in the earlier words. 134 Even on this construction – which is the one most favourable to Feteni's "critical path" submission - I do not think that clause 9.01 requires that the delay occur to works on the critical path. The delay must be of the kind described in the earlier words, and must be reasonably capable, at the time it occurs, of having the effect described in the qualifying words. Thereafter, if the appropriate notices are given, the Architect (ie, in this case, Tatton Park) is required to make a determination in accordance with clause 9.03, on the basis of the information then available. The Architect's determination will turn on whether, there being delay of the relevant kind, it can then be seen to be one which "might reasonably be expected to result in a delay to" practical completion. That is not the same as a determination that the relevant events will result in a delay to practical completion. 135 On this approach, there is no rigid requirement for an analysis of criticality. Clearly, the concept remains relevant: if the relevant causes of delay are so obviously "non critical" that they cannot reasonably be regarded as having an impact on the achievement of practical completion, then there could be no entitlement to an extension of time. But I do not think that it is a condition precedent to an extension of time that the delay be to works on the critical path. 136 On the alternative view, it will be necessary to identify the critical path at the time the cause of the delay occurred. The works concerned might (or might not) have been identified as critical on whatever was the last programme that had been issued. But this, of itself, could not be determinative. Further, insistence on the existence in fact of criticality seems to me to impose a higher – and impractical – test than that which flows from the concept of reasonable expectation (as opposed to demonstrated certainty) that is found in the qualifying words. That is because, in the course of construction of a substantial project, it will often not be possible, and will almost always be difficult, to determine where the as built critical path will be found to lie. 137 The question for the Court is whether the Architect should have granted an extension of time. That involves a review of the material available to the Architect. The question of entitlement is to be judged in accordance with the terms of the contract, and not on the basis of material that was not available to the Architect at the time the determination was (or should have been) made. It is therefore not necessary to identify the as built critical path and to determine whether, as a matter of fact, the delayed works are located on that critical path. 138 In truth, I think, Feteni's approach reflected a failure to distinguish between the critical path, as shown on construction programmes issued from time to time, and the as built critical path. The distinction between the two was covered by Mr King in his evidence at T 212.45-213.5. At T 212.55, he said that works shown as non critical on a construction programme would not necessarily remain non critical regardless of what, in fact, happened: "If those activities are delayed such that they consume the float that they have on them, then they have the potential to delay the completion of the works and they become critical." See also his evidence referred to in para [126] above. 139 The entitlement to an extension of time is required to be determined in accordance with clause 9.03. In my view, to take into account, as an element of that analysis in these proceedings, the concept of the as built critical path – something that would not be available to the Architect at the time of performing its clause 9.03 determination – is to fall into error. 140 Feteni submitted in its closing submissions that "the activities relied upon by Stuarts have not been shown (if delayed) to have been on any critical path or to have brought about any later completion date than that that otherwise would have been achieved" (outline of submissions, paragraph 57). 141 Firstly, for the reasons that I have just given, I do not think that it is necessary to show that the relevant activities were, or have been shown to be, "on any critical path". For the same reason, it is not necessary to show (with hindsight) that the delayed activities did in fact bring about a later completion date than did in fact occur. 142 Secondly, Mr King's evidence was that he did determine the critical path, by looking at "the activities that, ultimately … dictated when the project was handed over, when it was in a position to be able to be inspected for certificate of occupancy and I consider those to be reasonable tests to determine what was critical and what was not": T 215.5-.15. I accept that evidence. It would follow that this evidence shows that there were resultant delays in completion. 143 Thirdly, in my view, the proper analysis of the agreement between Messrs King and Plaister is that they have agreed that it was (at the least) reasonably likely (at the times that extensions of time were claimed) that the delays that formed the subjects of EOTs 2, 3 and 4 (at the time they occurred) would delay the achievement of practical completion. Otherwise, there is no basis upon which they could have agreed (as they did) on an entitlement (in some cases expressly conditional) to an extension of time. If in fact (as is likely given their approach to clause 9.01) they have agreed that the relevant occurrences did in fact delay completion, then Feteni's criticism becomes irrelevant. The contractual requirements 144 In substance, EOT 2 does not relate to a variation. To the extent that there is an element of variation (for example, in relation to the hard wiring of the television consoles), Feteni's submissions do not take the point that any relevant contractual provision was not met. It is therefore necessary to consider only those provisions relating to notices. 145 The relevant provisions of the contract, relating to extensions of time, are set out in para [26] above. 146 Under clause 9.01, Stuart is entitled to an extension of time if: · there is delay · to the progress of the works · beyond Stuart's control · that might reasonably be expected to delay practical completion; and · Stuart · within 14 days · after the cause of delay arose · gives written notice · to Tatton Park · stating the nature, the cause and, where possible, the extent of the delay. 147 In relation to EOT 2, the cause of the delay was an omission: on Stuart's case, the failure to deliver furniture on and from 25 September 1999. Stuart's case is that it was then ready to receive the furniture and for the furniture to be installed. 148 The notification, for the purposes of clause 9.01, on which Stuart relies is a facsimile transmission from Mr Georgiadis to Mr Hickman dated 28 September 1999. It read as follows (omitting formal parts): "The furniture installation was to have commenced by 24th September, we understand that you now do not want to commence fitout until 5th October. Please note that we have to wire up the consoles, which will take at least 2 weeks to carry out. To avoid delaying the project, can you commence fitout of the console units now so that the associated electrical and mechanical works can commence as planned. Also, we have commenced electrical fitout but we have been advised that the client is considering wiring up the TV consoles instead of having wall outlets [a reference to the 'hard wiring' issue]. Please advise, as this will delay the project if we have to now wait for the TV consoles to be installed before we can fit out the power and MATV points." 149 The document did not refer to clause 9.01. However, there is nothing in clause 9.01 that requires a notice under it to state, in terms, that it is given pursuant to that clause. To qualify as a notice for the purposes of clause 9.01, a document must state the nature, the cause, and where possible, the extent, of the delay. 150 The document was addressed to Tatton Park. It was sent within 14 days of the relevant omission. Does it meet the remaining requirements of clause 9.01? It makes it plain that there is (or will be) a delay arising from the nondelivery of furniture. Mr Hickman so understood it: T 342.45: "Q. … they are now making it absolutely plain to you that it is severely affecting their work, correct? A. Correct." 151 I accept this evidence. It confirms that the facsimile transmission of 28 September 1999 is a notification that the nondelivery of furniture will delay "the project". The document states in substance how this will occur when it says that fitout must start forthwith "so that the associated electrical and mechanical works can commence as planned". This is to be read in conjunction with Mr Hickman's acknowledgment that the supply and installation of furniture was critical: see para [88] above. 152 Plainly, as at 29 September, Stuart could not assess the extent of the delay: if only because, until all the furniture was delivered and installed, it would not be known what was the impact on completion. 153 Plainly, having regard to Mr Hickman's evidence referred to in paras [150] and [151] above, it was reasonable to expect that a delay in the supply of the furniture would be likely to delay practical completion. 154 I therefore conclude that all but the last of the requirements of clause 9.01 were satisfied by the facsimile transmission of 28 September 1999, and that, at the time the document was sent, it was not possible to assess the extent of the delay. 155 The delay was referred to again in a facsimile transmission from Mr Georgiadis to Mr Hickman on 6 October 1999. That said, relevantly: "The consoles were to be delivered on 24/9/99, then 5/10/99 and 6/10/99 now I believe there [sic] are being delivered tomorrow. This is delaying the electrical fit-out." 156 If I were wrong in my view of the facsimile transmission of 28 September 1999, then in my view the facsimile transmission of 6 October 1999 would in any event make the point crystal clear (if this needed to be done, given that, as I have indicated in para [150] above, Mr Hickman well understood the import of the earlier document). It was sent within 14 days of the relevant omission. It met all but the last of the requirements of clause 9.01. As at 6 October 1999, it was not possible to assess the extent of the delay. 157 On 8 October 1999, Stuart made its first attempt to quantify the extent of the delay when reference was made to "over two weeks [sic] work in wiring up the consoles and the TV units" and noting that "this work will not be completed by the 20th October". However, the first serious quantification did not occur until 2 December 1999, in the extension of time claim that I have referred to in para [115] above. The delay was quantified at 5 weeks. There is no basis in the evidence for concluding that it was possible, prior to 2 December 1999, for Stuart to quantify the extension of time. Nor could it be seriously suggested that it was, considering the haphazard and piecemeal history of deliveries that I have recounted above. In my view, the facsimile transmission of 2 December 1999 is a sufficient and timely notice for the purposes of clause 9.02. That this is so is confirmed by Mr King's evidence (which I accept) that the delay ended no earlier than 1 December 1999. 158 There is a question as to whether the furniture delay can be ascribed to a cause beyond the control of Stuart, for the purposes of clause 9.01. That issue arises, not because Stuart was in some way responsible, under the contract, for the delivery and installation of furniture (it was not). It arises, as I understand Feteni's case on this point, because, so it is said, the rooms were not in a position to receive the furniture prior to the dates upon which deliveries were made. 159 This proposition is not made good on the facts. It depends on an acceptance of Mr Hickman's evidence. For the reasons that I have given, I do not in general accept his evidence. Specifically, on this question, I accept the evidence of Mr Georgiadis, principally coming from his contemporaneous correspondence, that Stuart was ready and able to receive deliveries of furniture from 25 September 1999. Whatever was the reason why furniture deliveries did not then commence, it was not a reason for which Stuart was responsible. 160 Feteni raised in its written submissions as an issue whether Stuart took proper and reasonable steps to preclude the occurrence of the cause of the delay and to avoid or minimise its consequences (see clause 9.06 of the contract). The only submission made, in relation to this issue in so far as EOT 2 is concerned, was that "no evidence has been lead [sic] by Stuarts to establish that it took any steps to keep damages to a minimum". That submission seems, if I may say so, to have a degree of unreality. I have dealt at some length with Stuart's repeated requests for a furniture programme and with Mr Hickman's evasion of that request: see paras [91] to [99] above. I have referred also to Mr Hickman's "snow screen" memorandum and set out my conclusions on that: see paras [100] to [103] above. It is difficult to imagine what else Stuart could have done, in the face of Mr Hickman's inaction and evasions, to speed up the delivery and installation of furniture and thereby preclude or minimise the furniture delay. Conclusion on EOT 2 161 Messrs King and Plaister agreed (within the sphere of their expertise) that the quantification of EOT 2, relating to furniture delays, was 27 working days. For the reasons that I have given, I find that the relevant contractual preconditions have been made out. I therefore conclude that Stuart is entitled to an extension of time, of 27 working days, from the last extended date for practical completion, namely 11 October 1999. EOT 3: planter boxes The facts 162 There were terraces to the eastern and western sides of what is now known as level 3 of the Coogee Sands Apartments building. The upper levels, namely 4, 5, 6 and 7, were considerably narrower. Scaffolding was erected on level 3 to enable work to be carried out on the upper levels. The scaffolding on the eastern terrace (of level 3) was removed on 16 October 1999. The scaffolding on the western terrace was removed by 1 November 1999. 163 There were planter boxes on the eastern and western terraces of level 3. The drawings prepared by Edmiston Associates provided for a "spitter" drainage system: a piece of pipe inserted through the wall of the planter boxes that would allow water to drain out. Mr Georgiadis gave evidence that, in his opinion, this was a common and effective form of drainage for something such as a planter box. I accept that evidence. 164 Mr Georgiadis formed the view that it was not practical to do the necessary work relating to the planter boxes until after the scaffolding had been removed from level 3. That was because of access constraints: the planter boxes were located close to the scaffolding. It was however possible to remove the existing soil from the planter boxes and, Mr Georgiadis says, this was done on about 7 October 1999. 165 Mr Hickman did not agree with some of Mr Georgiadis' evidence as to access constraints. Mr Hickman thought that the soil and "rubbish and generally builders' [sic] debris etc" should have been removed before the scaffolding was erected. However, he did not dispute that the soil had been removed by about 7 October 1999. The balance of his disagreement is irrelevant because it is not suggested that any delay, until about 7 October 1999, in removing soil was itself a cause of delay in completion of the project. 166 On 5 August 1999, it was noted at a "client meeting" that landscaping details were required and that Mr Hickman was to provide them. The only landscaping work to be carried out was in relation to the planter boxes. It appears to be common ground that this request related to the planter boxes. It further appears that (as was the case with the request for issue of a furniture programme) Mr Hickman did not attend to this request. It was repeated at subsequent client meetings held on 26 August 1999, 9 September 1999, 16 September 1999 and 23 September 1999. 167 Landscaping details were not issued until about 30 September 1999. Even then, as the minutes of the meeting held on that day show, the details that were issued did not include the plant selection. 168 It was Mr Georgiadis' opinion that the required work to the planter boxes would take some 8-10 working days. That work included removal of the existing soil and material (which in any event was done by 7 October 1999), reconstruction of the planter boxes, inserting the spitters, waterproofing and painting, the placement of aggregate, and the planting of selected trees and plants in potting mix, finished with bark chips. Mr Hickman states that all that work "could all have been done prior to the erection of the scaffolding". That may be correct as a matter of theory. However, Mr Hickman did not condescend to explain how the landscaping works could have been carried out before the landscaping details were issued, or how the trees and plants to be selected by Feteni could be planted before the plant selection was made and notified to Stuart. 169 On 7 October 1999, Tatton Park directed a change to the drainage system in the planter boxes. The change involved the deletion of the aggregate drainage and the installation of something called "Atlantis drains". Mr Georgiadis did not think that this would involve any extra time or cost, and accordingly did not submit a variation claim. 170 In mid or late October 1999, Mr George Papallo directed Mr Georgiadis "to put drains in the bottom of the planter boxes". Mr Georgiadis asked him to procure Tatton Park to issue an instruction to that effect. Mr George Papallo's affidavit (which was sworn after Mr Georgiadis' first affidavit, in which the relevant conversation is set out) did not controvert what Mr Georgiadis said. 171 The relevant variation was directed on 28 October 1999, in a facsimile transmission from Mr Hickman to Messrs Georgiadis and Dunand. It read (omitting formal parts): "We confirm clients [sic] instructions to drain both east and west garden beds through the bagg-grates [sic] to be covered with appropriate geo fabric – laid beneath Atlantis cell – as specified. Outlets to be placed in new concrete base (with falls) and spaced at recommended centres." 172 Mr Hickman now says that the original planter boxes did not have sufficient falls to drain properly and effectively and that, at some unspecified time, Mr Georgiadis pointed this out to him. If this is suggested as being the true cause of the variation that Mr George Papallo requested and Mr Hickman directed, it does not find expression either in the request made by Mr George Papallo of Mr Georgiadis, or in the instruction subsequently given by Mr Hickman to Mr Georgiadis. I do not accept Mr Hickman's evidence on this point. 173 After Mr Georgiadis received Mr Hickman's instructions, he spoke to him and asked "what are the nominated centres that you refer to?". Mr Hickman then sent another facsimile transmission, which read (omitting formal parts): "Please install 2 drains to each large bay in garden beds. Also install 2 No 50 mm spitters to same area." 174 Again, this instruction made no reference to the variation being needed because of some defect in the existing drainage arrangements. 175 The revised drainage arrangements required drilling 2 drains in each of the planter boxes and through the existing concrete surface of the terrace, and linking those drains to the stormwater drainage system that had already been installed. Mr Georgiadis says that this meant that Stuart required access to the underside of the level 3 slab to enable this to be done. Stuart's site and office sheds were located on level 2 (which was a car park level) at the very point where these additional works were required. Mr Georgiadis says that, as a result, it was necessary to relocate the site and office sheds. Mr Hickman does not agree with that. Consistent with my general preference for the evidence of Mr Georgiadis over that of Mr Hickman, I accept Mr Georgiadis' evidence on this point. 176 The facsimile transmission sent by Mr Georgiadis to Mr Hickman on 3 November 1999 (part of the exchange of correspondence referred to in para [111] above) advised, as one of "the current client delays and variations affecting completion of the project", the following: "16. Additional drainage to planters". The document continued to note that "all of the above client delays" that were listed "has [sic] effected [sic] our revised completion date of 5/11/99" and that "we believe practical completion will be affected by at least a further 1 to 2 weeks". 177 Mr Hickman's response, which as I have noted took issue with some of the matters stated (see para [111] above), did not controvert item 16. Nor did it assert that the variation was required to correct the alleged insufficient existing drainage. Mr Hickman did not supplement these deficiencies in his response (if such they be) by oral evidence. 178 It took Mr Georgiadis from 2 to 8 November to relocate the site sheds and "identify a contractor who was able to perform the varied works". That contractor proved to be the hydraulic subcontractor, Bangor Plumbing Services ("Bangor"), who had already been working on the site. There is no explanation as to why it took Mr Georgiadis so long to identify Bangor, who would appear to have been the obvious candidate. Apparently, it took Bangor some time to mobilise to perform the varied drainage works to the planter boxes. Those works were completed by about 7 December 1999. 179 Mr Georgiadis said that rooms 301 to 314 on level 3 were adjacent to the eastern terrace. He said, in substance, that the handover of those rooms was delayed because of the drainage works. This, as I understand it, was because those rooms had access to the eastern terrace, and the terrace was to be divided by some sort of fencing to afford a measure of privacy to each room. The relevant dividers could not be installed until after the drainage works and installation of plants had been completed. 180 Feteni made a valiant attempt to suggest that, once the varied drainage works were completed, the balance (ie, filling the planter boxes and planting the selected plants) could have been undertaken by bringing the requisite material through the rooms. Frankly, this proposition borders on the absurd. It would require soil, plants and pine bark (or some other mulch) to be conveyed – presumably in wheelbarrows - through the finished rooms to the terrace. It would require the workmen to pass through the rooms on their way to and from the work site. I cannot conceive that Messrs George or Sam Papallo or Mr Hickman would have accepted this. Even if they had, I cannot conceive that the rooms could be regarded as available for letting, whilst these activities were taking place. 181 On 2 December 1999, Mr Georgiadis sent a further facsimile transmission to Mr Hickman relating to delay. It claimed an extension of time relating to additional drainage work to the planters on the eastern façade, set out why the delay had occurred, and noted the impact on "the interconnecting fences" (ie, the divisions on the terrace) and completion of the fire passage. It stated an estimated date for completion of 18 December 1999. 182 That claim was rejected by Mr Hickman in a memorandum of 14 December 1999 to Mr Georgiadis. Mr Hickman stated the ground for rejection as being: "… it was not until Stuarts completed the removal of all the soil to the existing planters [that] it became apparent what was required in the form of drainage. The removal of the soil should have taken place at an earlier time." 183 This appears to be the first attempt by Mr Hickman to relate the variation to some alleged deficiency in the work undertaken by Stuart. However, it overlooked the simple fact that the variation was directed pursuant to a request by Mr George Papallo. As I have said, there was no suggestion either in Mr George Papallo's request, or in the direction, that the variation was a result of some defect in the work performed by Stuart. 184 Soil and pine bark mulch were ordered on 7 December 1999 and delivered on 8 or 9 December 1999. However, the plant selection had not been advised. On 20 December 1999, Mr Hickman enquired what was happening and Mr Georgiadis informed him that the plants would be ordered as soon as they were selected. Mr Hickman sought to suggest, in a memorandum of 22 December 1999, that there had been some arrangement between Stuart and Feteni that Stuart would give Feteni 3 days' notice that the plants were required. Mr Georgiadis replied to this, characterising the suggestion as "complete fabrication" and made the point that "[t]he selection of plants was made yesterday when they should have been selected by September last year". There is no contemporaneous evidence of the agreement alleged by Mr Hickman in his memorandum of 22 December 1999. Mr Hickman was not prepared to swear to the truth of what was said in that memorandum. In the circumstances, I have no difficulty in accepting Mr Georgiadis' emphatic characterisation of the alleged arrangement. 185 The position was that, in September 1999, numerous requests had been made for landscaping details; and even when some details were issued, they did not include the plant selection. A further request was made for that on 30 September 1999. On the evidence, Feteni and Tatton Park either overlooked the need to provide, or decided not to provide, that information until 22 or 23 December 1999. Once the plant selection was provided the plants were ordered and delivered, and the work was completed, in a day. The expert evidence 186 Messrs King and Plaister agreed as follows in relation to EOT 3: "The experts agree that if the instructions as noted in King's affidavit are found to be correct (paras 101, 108, 111 and 119) then Stuart is entitled to 18 working days' extension of time." 187 In his oral evidence-in-chief explaining the agreement, Mr King made it clear that the analysis of the planter box delay was divided into two parts. The first related to the revised drainage arrangements. The second related to the delay in advising plant selection. The first delay was quantified as 6 working days running from 9 November to 17 November. The second period of 12 days ran from 8 December to 23 December. Mr King said further that the agreement in relation to EOT 2, and the agreement in relation to EOT 3 (and, for the sake of completeness, the agreement in relation to EOT 4), took account of all concurrency. The days agreed did not involve any overlapping so that, if on a proper construction of the contract and in the events that have happened Stuart is found to be entitled to all three EOT claims, its entitlement would be the sum of their three assessments, namely 45 working days plus a further 30, or alternatively 19, working days (depending upon the precise findings made in relation to EOT 4). 188 Again, Mr Plaister did not dispute this view of the agreement. 189 Coming back to EOT 3, it follows that, if the relevant contractual conditions have been satisfied, and if the condition specified by the experts (relating to paragraphs 101, 108, 111 and 119 of Mr King's report) are met, then Stuart is entitled to a further 18 days' extension of time. 190 The findings of fact that I have made deal with all the assumptions referred to in paragraph 101 of Mr King's report, and with the assumptions stated in paragraphs 108, 111 and 119. It is therefore necessary only to give consideration to the question of compliance with the relevant contractual conditions. 191 There is no doubt that Tatton Park gave a written instruction to perform the variation: see paras [171] and [173] above. 192 Equally, there is no doubt that Stuart notified Tatton Park that the variation was likely to cause delay: see para [176] above. There is no basis for concluding that the notification of 3 November 1999 was not given with sufficient expedition. Nor is there any basis for concluding that, as at 3 November 1999, Stuart was in a position reasonably to estimate the likely extent of the delay. 193 In my view, the notification of 2 December 1999 (see para [181] above) satisfies the requirements of clause 9.01 (if it had not earlier been satisfied) and clause 9.02. That is to say, I think that, by 2 December 1999, Stuart was able: (1) To assert that the circumstances encompassed in EOT 3 had in fact delayed completion; and (2) To estimate, and advise, the delay thereby caused. 194 I therefore conclude that the issues, or conditions, reserved by Messrs King and Plaister, in relation to EOT 3 (see para [186] above) are, in their terms, "found to be correct". The contractual requirements 195 I have already dealt in substance with the contractual requirements, in so far as they relate to notification: see paras [191] to [193] above. Reference may also be made to Mr Georgiadis' facsimile transmission of 14 December 1999 to Mr Hickman, giving further notice that Stuart was being delayed by reason of the planter delays. (By that time, the additional drainage works had been completed, the topsoil had been delivered and placed in the planter boxes and the only remaining delay related to the failure of Feteni, or Tatton Park, to notify a plant selection.) That document also drew attention to the impact on handover of the rooms and notified Stuart's intention to make a claim. 196 Reference may be made also to Mr Georgiadis' further facsimile transmission of 23 December 1999 to Mr Hickman which, referring to the planter delays, stated that "[t]ime and delay costs will be advised when known". 197 The claim for extension of time was made on 18 January 2000. That claim did not differentiate between delay due to the requirement to change the drainage in the planter boxes and delay in notification of plant selection. (On this point, see Mr Georgiadis' evidence at T 95.15-.25.) I do not think that it was necessary for Stuart to split up the delay in this fashion. Nor, on the evidence, do I think that there is any basis for concluding that it was practicable for Stuart to make the claim at some earlier date. 198 Again, Feteni submits that "no evidence has been lead [sic] by Stuarts to establish that it took any steps to keep damages to a minimum". 199 Again, I think, there is an element of the unreal in this submission. 200 As to the drainage works: I have referred in para [178] above to the time taken to engage the hydraulic subcontractor, Bangor, to perform the drainage works. However, there is no evidence that Bangor could have been mobilised any earlier than in fact occurred. In any event, having regard to the agreed analysis of Messrs King and Plaister (see para [187] above), it does not appear that the delay in the engagement of Bangor has had any relevant effect. 201 As to the second aspect of delay – plant selection – it is (as was the case with EOT 2) clear that Mr Georgiadis was pressing Mr Hickman for the plant selection and that Mr Hickman did not see fit to provide it: see paras [166], [167] and [184] to [185] above. In this context, I refer in particular to the exchange between Messrs Hickman and Georgiadis on 22 December 1991 (see para [184] above). 202 It is clear in my opinion that Stuart did what, reasonably, it could to extract the plant selection from Mr Hickman and, thereby, to minimise the damages, costs and expenses that would flow from delay in providing it. Conclusion on EOT 3 203 I find that Stuart is entitled to an extension of time for 18 working days in relation to EOT 3. For the reasons given in para [187] above, that entitlement is additional to, and not concurrent with, Stuart's entitlement in respect of EOT 2. EOT 4: disabled access ramp The facts 204 The preliminary drawings that formed the basis of the contract were prepared by a firm known as Architects Haywood + Bakker ("H+B"). It was apparent on at least one of those drawings that there was a step down from the building to Dolphin Street at about the point of the front entrance. The extent of the step down was not easy to ascertain because of the scale of the drawings (1:100) and the quality of the reproduction. Estimates varied from 60 to 115 mm. Other drawings prepared by H+B appeared to show that there was no step down: ie, that the ground floor slab of the building was level with the footpath at the entrance. 205 In fact, at the ground floor entrance to Dolphin Street there was, before the works with which EOT 4 was concerned were executed, a step measured at 150 mm. 206 The works as completed by Stuart contained disabled access into the ground floor (foyer area) of the building. That access came from the car park into the rear of the foyer. In turn, to gain access to this disabled access point (either to enter or to leave the building) it was necessary to traverse the ramp leading from Dolphin Street down into the car park. That ramp sloped down from the street. This form of disabled access was shown on the preliminary drawings. 207 The consents issued by Randwick Council ("council") were subject to a number of conditions. Those conditions included the following: "56. Access and facilities for disabled people being provided in accordance with Part D3 of the B.C.A. and Council's Access Policy and designed in accordance with [Australian Standard] AS 1428.1, Design for Access and Mobility." 208 Part D3.2 of the Building Code of Australia ("BCA") provided that buildings must be accessible as required by Table D3.2 and that parts of buildings required to be accessible must comply with Part D3 and with AS 1428.1. It provided further that external access to a building required to be accessible must be in accordance with Part D3 and AS 1428.1 and must be provided (among other things) from the allotment boundary at the main points of entry. 209 It was common ground that the building was required to be accessible for the purposes of Part D3.2 of the BCA. 210 The relevant table applicable to the building provided that, for common areas, access was required to and within the common areas on the storey incorporating the principal public entrance. 211 The effect of the BCA was, therefore, that (among other things) external access was required to the building through the main entrance on Dolphin Street. Access through the car park was insufficient. 212 Council's "Access Policy" appears to be a document described as "Code for Access and Facilities for Disabled Persons". The objectives of that code included making buildings and facilities accessible to as many people as practicable. This objective was to be achieved by, among other things, providing accessible paths of travel to connect accessible building entrances with all accessible spaces and facilities within the building, and to connect accessible entrances with those exterior and interior spaces and facilities that serve the building. The content of the concept of "accessible paths of travel" was explained in the code. 213 Australian Standard AS 1428.1-1998 dealt with "Design for Access and Mobility". Its objective is stated as being "to provide building designers and users … with the minimum design requirements for new building work to enable access for people with disabilities". Clause 4.3 defined the expression "continuous accessible path of travel" as being "an uninterrupted path of travel to or within a building providing access to all required facilities". Such a path was not to "incorporate any step … or other impediment which would prevent it from being safely negotiated by people with disabilities". 214 Clause 5.1 of AS 1428.1 required "[w]alkways, ramps and landings [to] be constructed with smooth transitions between sections of different gradients … " and with, at such transition points, "the maximum construction tolerances between abutting surfaces [being] 5 mm …". 215 It is clear, and should have been clear to anyone who considered the question on 14 July 1998 when the contract was made, that: (i) The proposed disabled access (and the disabled access that was initially constructed) through the car park did not comply with the relevant provisions of the BCA, council's access code and AS 1428.1; (ii) Complying access for disabled people would need to be given from the Dolphin Street entrance to the foyer; and (iii) The 150 mm step at that point (or even the step estimated off the preliminary drawings at, variously, from 60-115 mm) would not comply with AS 1428.1. 216 In other words, it should have been obvious that disabled access would have to be provided by means of a graded or ramped access way at the Dolphin Street entrance, connecting the footpath to the foyer. 217 On 2 June 1998, Mr Robin Edmiston, who was the principal of Edmiston Associates, had (on his evidence) a telephone conversation with Mr George Papallo in about May 1998 in which Mr George Papallo asked Mr Edmiston to "go through" certain drawings and "see if they comply with the BCA as the builder wants this assurance". According to Mr Edmiston, Mr George Papallo said that he needed "to write a letter and address it to Robert Britt of [Stuart]". Mr Edmiston said that he replied that he could "only comment on what is actually on the drawings and not what is not on the drawings …". 218 Thereafter, Mr Edmiston reviewed a number of drawings prepared by H+B and the consents given by the council in conjunction with the BCA. He prepared and sent to Mr Britt, who was a director of Stuart at the time, what Mr Edmiston calls "the certification letter". That letter referred to a number of "DA plans" and "BA plans" which were "as prepared by Hayward and Bakker". The plans so referred to included sections and elevations that showed, from varying perspectives and with varying degrees of clarity or obscurity, the relationship between the front of the building and Dolphin Street. The certification letter stated: "In relation to the above, we have conducted a detailed examination of the documents listed above and from an architectural construction perspective, have concluded that these documents comply with: (I) All Development Application consent conditions … (II) All Local Approval Application consent conditions under [the relevant consents] and all requirements of the Building Code of Australia. (III) All Building Code of Australia requirements." 219 The exceptions to the above are as follows: "(I) Windows to East Elevation L 6 & 7 do not appear to contain a vertical fire separation as required by Clause 2.6 of the B.C.A. (II) Walls to the Staff Room Level 1 and associated areas require minus \240\30 separation to the Car Parking Area. (III) Upper terraces to the street frontage require a kerb to contain the rainwater and to maintain an even fascia to the street. Should you require any further information please do not hesitate to contact the writer." 220 Mr Edmiston says, and I accept, that he sent that letter to Mr Britt. 221 Mr Georgiadis did not become involved with the project until after the contract had been signed. He was then given a large number of documents. It may be that the documents given to him included what Mr Edmiston called, and what I will continue to call, the certification letter. 222 There was a meeting at Stuart's offices on 21 July 1998. It was attended by Messrs George Papallo, Hickman, Britt and Georgiadis. The minutes include the following: "3. Stuart's request that the Architect/Surveyor provide a report on the design with respect to any Strata issues and certification to the effect that the design fully conforms with all the necessary regulations." 223 During the meeting, Mr Georgiadis said words to the effect of: "We need to get the Architect to sign off that the design complies with all Council requirements." 224 Mr Hickman agrees that such words were said, although his present understanding of the context is that there was "discussion with respect to the design and strata issues and certification, that is, did the design satisfy all requirements with respect to issues that might arise with respect to the registration of the strata plan". To the extent that this is inconsistent with Mr Georgiadis' account (and it is by no means clear that it is) then, consistent with my general preference for the evidence of Mr Georgiadis over that of Mr Hickman, I accept Mr Georgiadis' account. 225 On 10 August 1998, Mr Georgiadis sent a facsimile transmission to Mr Hickman that said (relevantly, and omitting formal parts): "Can you please obtain certification from the Architect and Structural Engineer that the documentation has been revised to fully comply with Council conditions, the BCA and the Trevor Howse Report. We have as yet to receive the Architects [sic] advise [sic] that the design complies with all necessary strata requirements. … " 226 The "Trevor Howse Report" is a report prepared on 28 June 1996 by Trevor R Howse and Associates Pty Ltd for Alanto Investments Pty Ltd ("Alanto") – a company controlled at the time by Messrs Sam and George Papallo, and therefore a related company of Feteni and CSA. The Howse report (as I shall call it) formed part of the contract. It purported to show the way in which, or the extent to which, certain drawings prepared by H+B did or did not comply with the requirements of the BCA. It set out in summary form the requirements of clause D3.2, and stated that no details were available of what was proposed to meet those requirements. It noted further that if disabled access was required, then it was to be provided in accordance with clause D3.3, and that what was required would be provided. The basis of this conclusion is unclear. 227 At the time Mr Hickman received Mr Georgiadis' request, he had been given (by Mr George Papallo) the project documentation, but had not had an opportunity to consider it. He spoke to Mr George Papallo about Mr Georgiadis' request and was told that Stuart had already received the material. 228 Mr Hickman says that, when he received the facsimile transmission, he telephoned Mr Georgiadis to tell him that "you have already got a copy of the structural and architectural certificates as part of the contract conditions". He says that Mr Georgiadis replied to the effect that "I have lost my copy of the architect's certificate. Could you send me another one". Mr Georgiadis does not recall that conversation, and in any event denies that he said that he had lost his copy of the certificate. Whilst I think it likely that Mr Hickman did telephone Mr Georgiadis to point out that the relevant architectural certificate had already been provided (in the form of the certification letter), I find (if it matters) that Mr Georgiadis did not say that he had "lost" his copy of that document. This is both because of my general preference for the evidence of Mr Georgiadis over that of Mr Hickman where they are in conflict, and because there is no basis for thinking that Mr Georgiadis was aware of the existence of, let alone had lost, the certification letter. 229 On 11 August 1998, Mr Hickman sent a memorandum to Mr Edmiston by facsimile transmission. It purported to attach Mr Georgiadis' facsimile transmission and asked Mr Edmiston to "commence action on the requests but discuss with me first". It further asked Mr Edmiston to "confirm that the current drawings have been revised to comply with all Council conditions and BCA requirements as supplied by Trevor Howse". However, Mr Hickman omitted to send a copy of Mr Georgiadis' document to Mr Edmiston. In any event, Mr Edmiston sent to Mr Hickman a copy of the certification letter. 230 After Mr Hickman sent his memorandum to Mr Edmiston, he telephoned Mr Edmiston and was told that Mr Edmiston had received it. According to Mr Hickman, Mr Edmiston said that he had already given Stuart what it was now requesting. Mr Edmiston does not recall, but does not deny, that such a conversation took place. It is unlikely that it did – at least in the precise terms alleged by Mr Hickman - because Mr Hickman did not send with his memorandum a copy of Mr Georgiadis' request. Mr Edmiston agreed that, if asked, he would have said something to the effect that he had already written a letter to Stuart stating that the drawings complied. Clearly enough, on Mr Edmiston's evidence, he understood that the request in Mr Hickman's memorandum of 11 August 1998 would be answered by providing a copy (or further copy) of the certification letter. 231 Mr Hickman asked Mr Edmiston to fax a copy of the certification letter. Mr Edmiston did so. 232 On 13 August 1999, Mr Hickman sent a memorandum to Mr Georgiadis by facsimile transmission. It stated, relevantly, that "Structural and Architectural Certificates are attached", and noted that "a copy is already on your file". 233 Mr Hickman omitted to send a copy of the certification letter with that memorandum. Mr Georgiadis says that he telephoned Mr Hickman and that they had a discussion about another aspect of Mr Hickman's memorandum, in which Mr Hickman had suggested that "the contract is clearly a D & C", ie, a "design and construction" contract. Mr Georgiadis says that he also asked Mr Hickman to confirm that the Architect's certificate was the certification letter, and that Mr Hickman confirmed this. Mr Hickman denies that such a conversation took place. However, both because of my general preference for the evidence of Mr Georgiadis over that of Mr Hickman and because, in one respect (relating to the "D & C issue"), it is confirmed by a handwritten note, made by Mr Georgiadis, on his copy of the memorandum, I accept Mr Georgiadis' evidence on this point. Presumably, by the time this conversation took place, Mr Georgiadis had located the certification letter (or copy) that had been provided by Mr Edmiston to Mr Britt. 234 Stuart proceeded substantially in accordance with the drawings that were the subject of the certification letter. There was no provision for disabled access through the Dolphin Street entrance. There was a step up from the footpath to the building of about 150 mm. The only disabled access that was provided was from the rear of the reception area into the car park area. 235 Mr Georgiadis arranged for a council inspection to take place on 12 November 1999, as part of the process of obtaining the requisite certification. The council inspector, Mr Greg Hines, walked around the project. He enquired where the disabled access was and was referred to the ramp at the rear of the reception area. He said that disabled access had to be provided at the front of the building. Mr Hines also said that Stuart would need to obtain an up-to-date survey of the property and certification in relation to smoke hazard management. (These last two requirements were satisfied by about 23 November 1999.) 236 Mr Georgiadis discussed the matter with Mr Hickman, who undertook to speak to Mr Edmiston (there is an irrelevant dispute as to whether the conversation took place by telephone or in person at the site). 237 Mr Hickman contacted Mr Edmiston. Mr Edmiston attended the premises and, with Mr Dunand, undertook measurements of the levels. He then prepared a drawing for a ramp at the front of the building, commencing (on the boundary) at the level of the footpath and ramping up into the building. Mr Edmiston said, and this does not appear to be in dispute, that a ramp constructed in accordance with that drawing would have satisfied the relevant requirements of council, the BCA and AS 1428.1. It is also, apparently, common ground that such an access ramp could have been built at any time before or during November 1999, without impeding the efficient execution of the works or delaying completion. 238 However, Mr Edmiston's solution was not implemented. Mr George Papallo, upon becoming aware of the proposal, said that he did not want this done and wanted the footpath raised. It appears that Mr George Papallo took the view that an internal ramp, as proposed by Mr Edmiston, would not be in keeping with the character of the building as "4 star" apartments. 239 Raising the footpath required the consent of council. It also required the consent of Telstra, because the footpath to be raised included an area where there was located a Telstra access pit. Finally, there was an issue as to whether the existing pavers could be reused, or as to whether new pavers would be used. 240 In the event, Mr George Papallo had his way. The requisite consents were obtained. The level of the footpath was raised in a way that provided adequate disabled access. The work was covered with new pavers, apparently sourced through council. The expert evidence 241 Messrs King and Plaister analysed the footpath delay in two parts. They concluded, subject to what follows, that there was a delay of 11 days relating to the raising of the footpath to the level of the Dolphin Street entrance, and a further delay of 19 days relating to the repaving of the footpath once raised. The issue between them relates to the question of design responsibility. They agree that, if Stuart did not have responsibility for compliance with the conditions of consent (which embraced, among other things, the BCA) then there was an entitlement to an extension of time for 30 days in all after adjusting for concurrency with the furniture and planter delays. If Stuart did have that responsibility, then they are agreed that it is not entitled to the 11 working days that, in their opinion, were required to execute the works relating to disabled access at the Dolphin Street entrance. 242 As I have said, Messrs King and Plaister agree that the "variation" relating to paving resulted in a 19 day extension of the date for completion. Mr King takes the view that this is additional work which delayed the issue of the certificate of occupancy. Mr Plaister takes the view that it falls within what he sees as Stuart's design responsibility, relating to compliance with the relevant conditions. Stuart's design obligation 243 Feteni contended that, although the contract was not, in the usual sense, one for design and construction, Stuart nonetheless had some design responsibility. 244 I have already referred to some of the relevant provisions of the contract: see paras [13], [18] and [22] above. Feteni also relied on clauses 1.03A.1.6.3, 1.03A.3.4 (which required Stuart to check the "Preliminary Documents" for correctness and completeness), clause 2.02.01 (which required Stuart to take full responsibility for the "Final Documents" – ie, those documents that were the product of the revision obligations set out in Part D of the design module), special condition 82.3 and clause 6.05 of the contract. 245 In my judgment, the contract did impose on Stuart the obligation to revise the Preliminary Documents into Final Documents that, among other things, complied with any relevant conditions of consent and with the relevant provisions of the BCA. Under clause 1.03.02, as amended by special condition 3.2, Stuart's obligations included that it should regularly and diligently proceed to execute and complete the Works. By clause 1.02.04, incorporating Item B.4 of the Appendix, the works included refining and revising the Preliminary Documents into compliant Final Documents. 246 By clause 1.03.03 as amended by the special conditions, Stuart's obligation included (perhaps for greater emphasis), substantially the same obligation. 247 Further, it was agreed by clause 1.03A.1.3 that the Works to be undertaken by Stuart included the modules that were thereafter set out. Part D of the first of those modules (the design module) once again required revision of the Preliminary Documents into compliant documents: they were to incorporate "no less than or lesser standard as required by … BA and DA consent conditions … [and] Building Code of Australia … ". 248 I do not understand how the obligations under the various clauses to which I have referred can be construed in any way other than that Stuart had the contractual responsibility for ensuring that the Preliminary Documents were revised to ensure that the building was constructed according to Final Documents that complied, among other things, with the conditions of consent imposed by council and with the BCA. It will be remembered that the conditions of consent imposed by council required, in any event, compliance with the relevant requirements of the BCA. It will also be remembered that council's access policy (compliance with which was required by the conditions of consent) required compliance with the relevant provisions of AS 1428.1. 249 It follows, in my opinion, that it was Stuart's responsibility to ensure that the building as constructed incorporated disabled access through the Dolphin Street entrance. As I have noted in paras [209] to [213] above, that flows inevitably from the application of the relevant provisions of the BCA and AS 1428.1. Analysis 250 For the reasons that I have just given, I conclude that at least the first part of the delay referable to disabled access is the responsibility of Stuart. This follows from: (1) My conclusion that Stuart had the relevant design responsibility under the contract; and (2) The circumstance that no delay would have been caused had the design been rectified, and the relevant works performed, in the course of performance of other work under the contract. 251 It therefore follows that Stuart is not entitled to at least the first 11 days of the delay that the experts have quantified. Clause 9.01A makes it clear that this is so. 252 The more difficult question relates to the "paving" issue. As I have said in para [242] above, Mr King's view that this was, in effect, a variation. Accordingly, in his opinion, Stuart is entitled to the second part of the relevant delay. 253 It is conceptually somewhat difficult to understand how Mr George Papallo's requirement, that disabled access be provided not by means of a ramp at the Dolphin Street entrance but by raising the footpath at the Dolphin Street entrance, could be regarded as a variation. A variation is an increase or decrease in the Works or a change in the character or quality of any material or work (see clause 1.02.12 as amended by special condition 1.8). If the drawings had provided for disabled access by means of a ramp at the Dolphin Street entrance, then, clearly, Mr George Papallo's instruction would amount to a variation. However, the drawings did not so provide. 254 Stuart's obligations under the works included the revision of the Preliminary Documents into Final Documents that complied, relevantly, with the conditions of consent, the BCA and AS 1428.1. Final drawings that showed a ramp (constructed in accordance with AS 1428.1) at the Dolphin Street entrance would have satisfied Stuart's obligations in this regard. The question is, therefore, whether Stuart was required to do only what might be called the minimum work necessary to achieve compliance, or whether it was required to design and construct to a more elaborate standard. 255 The question is complicated because, as I have noted, the definition of "works" imports the notion of a 4 star serviced apartment building; the reference to "4 star" is a reference to something called the Australian Automobile Association Classification Scheme, dated January 1997. 256 The contract documents included the Australian Automobile Association's "National Classification Guidelines" for hotel/motel accommodation dated January 1997. It is clear that this is the document to which reference should be made for the purpose of understanding what is required. Four to 5 stars are said to indicate "accommodation offering exceptional standards". In terms of "appearance", the word "excellent" connotes "[a] property with exceptional visual appeal, uniqueness and landscaping, in keeping with the areas [sic] environment and carries [sic] no visual imperfections". It is said that "[t]his category represents the benchmark to the industry". 257 However, the overall rating under the "star" system appears to be the product of a detailed process of assessment that considers a vast number of aspects, of which exterior appearance forms but one small part. 258 There is nothing in the statement of "essential items for 4 star+ and 5 star rate of properties" to indicate that disabled access as required by Mr George Papallo, instead of that proposed by Mr Edmiston, would be required if the "4 star" classification were to be met. 259 Because the allocation of a star rating is the product of an overall assessment, it is not possible for me to say, reading the guidelines, whether provision of disabled access as proposed by Mr Edmiston would have resulted in a downgrading from 4 stars. In other words, there is no basis within the guidelines upon which I can determine that Mr George Papallo's solution was essential if the property was to carry a 4 star rating. 260 There is no evidence, expert or other, directed to the point. Accordingly, there is no basis upon which I can conclude that Feteni would have been entitled, under the contract and not as a variation, to have disabled access at the Dolphin Street entrance provided by raising the footpath rather than by ramping. 261 On the evidence, disabled access in accordance with Mr Edmiston's solution would have satisfied Stuart's obligation to design in accordance with relevant requirements and to construct in accordance with that design. That obligation could only be enhanced, or expanded, to take in Mr George Papallos' requirements, if there were evidence that would enable me to conclude that his solution, rather than Mr Edmiston's solution, was required on a fair reading of all relevant contractual conditions. There is no such evidence. 262 This analysis, I think, requires the conclusion that disabled access in accordance with Mr George Papallo's requirements (instead of Mr Edmiston's design) is a "variation". It is either an increase in the Works or a change in the character or quality of material or work that formed part of the Works. Notwithstanding the reservation that I have expressed in para [253] above, the same conclusion is available on a more literal approach. The relevant drawings did provide for disabled access (between the rear of the foyer and the carpark). Mr George Papallo's instruction required a different form of disabled access. Whether or not what was proposed by the drawings was "appropriate", Mr George Papallo's instruction, on a literal approach, was an instruction to perform a variation. 263 But analysing Mr George Papallo's requirements as amounting to variation does not resolve this aspect of EOT 3. Mr Plaister's point is not that the relevant work was not a variation (indeed, on one view of the experts' agreement, it was common ground that it was a variation; but I have not relied on that in concluding, for the reasons that I have already given, that it was a variation). 264 The problem relating to disabled access, and the need to provide compliant disabled access from the Dolphin Street entrance, should have been picked up in Stuart's revision of the Preliminary Documents into the Final Documents. That is something that should have happened during the Preliminary Period. Under the contract (as varied), the preliminary period was to end on 14 September 1998. Had Stuart picked up the problem during the Preliminary Period, it would presumably have provided for disabled access in the manner that, in November 1999, Mr Edmiston proposed. Had it done so then, presumably, Mr George Papallo would have requested that disabled access be provided as he preferred: by raising the level of the footpath at the Dolphin Street entrance. There might have been an argument as to the cost, but there is no reason to think that the work could not have been programmed in such a way that, even allowing for the need to obtain council and Telstra consent and raise and repave the footpath, it could have been completed without having any impact on the date for practical completion. In other words, if the problem had been recognised and dealt with when it should have been, I do not think that there would have been any delay to practical completion. There is no basis for concluding that the work could not have been carried out concurrently with other works and prior to practical completion. The contractual requirements 265 The conclusions to which I have come make it unnecessary for me to consider the extent to which Stuart (otherwise) complied with the relevant requirements of the contract in relation to EOT 4. Had it been necessary to do so, I would have concluded that Stuart had complied with the requirements of clauses 9.01, 9.02 and 9.06. Conclusion on EOT 4 266 I conclude that Stuart is not entitled to any extension of time for EOT 4. The date for practical completion 267 It follows that the date for practical completion is 45 working days after 11 October 1999. The date of practical completion 268 It is common ground between Stuart and Feteni that, subject to an esoteric argument as to Stuart's obligations to procure registration of the strata plan for the Coogee Sands Apartments and Feteni's alleged obstruction of Stuart's performance of that obligation, the last relevant event necessary to enable Stuart to obtain practical completion occurred on either 18 or 21 February 2000. On 18 February 2000, council issued an "occupation certificate" under ss 109C(1)(c) and 109H of the Environmental Planning and Assessment Act 1979. On the latter date, Mr Georgiadis forwarded a copy of that certificate to Mr Hickman and stated, perhaps optimistically, that "this certificate brings the project to an indisputable practical completion". 269 The requirements for practical completion, as amended by the special conditions to the contract, included "the obtaining by [Stuart] from [council] of a building certificate under the Local Government Act" as well as approval of, among other things, the relevant s 88B instrument and strata plan "all duly signed by [council] and in registrable form". 270 Special condition 73 expanded the completion obligations of Stuart. It is set out in para [25] above. 271 I do not propose to investigate the esoteric argument to which I have referred. That is because, as Feteni acknowledges, the most favourable (to Stuart) construction of the relevant contractual provisions, and the most favourable application of those provisions in the events that have happened, means that the date of practical completion was 21 days after 18 February 2000. 272 Subject to Stuart's submissions as to the effect of handing over part of the works in late 1999, that means that the date of practical completion is 10 March 2000. 273 However, Stuart argued that, because Feteni had taken possession of part of the works during October and November 2000 (in the circumstances that I have described above in relation to EOT 2), the effect was that practical completion of the whole of the works was deemed to have occurred when Feteni took possession of the first part. 274 Stuart's submission was based on the provisions of clause 9.10 of the contract. Clause 9.10 was amended by special condition 44. I have set out clause 9.10 in para [26] above, and the relevant effect of special condition 24 is dealt with in para [27] above. 275 Stuart's argument based on clause 9.10 formed part of its argument on the question of penalty. I trust that I am not doing Stuart an injustice by splitting up the argument and dealing with it now, in relation to practical completion, and in the next section of these reasons, in relation to penalty. 276 There is no doubt that, as the contract stood without the amendment effected by special condition 44, Feteni's occupation or use of part of the works before practical completion, in the absence of agreement or notice to the contrary, would have led to deemed practical completion. However, given that clause 9.10 was deleted, I find it impossible to see how this argument can be sustained. 277 There was no express agreement to the effect that taking possession of part gave rise to practical completion of the whole (or, indeed, of the part of which possession was taken). In the circumstances that I have described, particularly bearing in mind that Stuart made it plain that handing over part of the works was being done before practical completion, no such agreement could be implied. 278 If "the Architect" had any certifying role in respect of deemed practical completion based on early handover, there was no certification of practical completion by reason of early handover. Neither Tatton Park (which was deemed to be the architect), nor Edmiston Associates (which was named as the architect), certified that practical completion had taken place at any time when any part of the works was handed over. 279 Finally, I think, the deletion of clause 9.10.04 must be taken as signifying the clear intention of Stuart and Feteni that, absent express agreement, practical completion was not to be inferred from the handing over or use or occupation of part only of the works. Penalty 280 The relevant contractual provisions are set out in paras [28] and [29] above. There is no reason to think that the stipulated sum of $15,000 per week should be characterised as "extravagant, exorbitant or unconscionable", to use the classic formulation cited with approval by Mason and Wilson JJ in AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170, 190 and itself cited with approval by Wilson and Toohey JJ in Esanda Finance Corporation Ltd v Plessnig (1989) 166 CLR 131, 139 (and cf Brennan J in the same case at 143). 281 The uncontested evidence was that Feteni's holding charges for the project, based on its borrowings and the rate of interest, were close to the stipulated sum. If one adds other holding charges and the opportunity cost of Feteni's own funds invested in the project, the stipulated sum must be entirely reasonable. 282 In my view, it is appropriate to have regard to holding costs in considering whether a stipulated liquidated damages amount is "extravagant, exorbitant or unconscionable": see the decision of Cole J in Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504, 513 (as to the admissibility of evidence if, notwithstanding the failure of Stuart to object, this is in issue); 519-521 (as to the use of holding costs as an appropriate indicium of the amount of liquidated damages). 283 Stuart submitted that the effect of giving early occupation of part of the works was to render the stipulated sum excessive. That may be accepted for the sake of argument, although what evidence there is on this point suggests otherwise. However, it is clear that the question of whether or not a stipulated sum is penal is to be considered from the point of view of parties at the time the contract is made: Plessnig at 142 (Wilson and Toohey JJ). If the effect of Stuart's agreement to hand over part of the works ahead of practical completion was to give Feteni a windfall in the event that it was also entitled to liquidated damages, then that was something that flowed from Stuart's subsequent agreement to hand over possession, not from something that was inherent in the contract at the time it was made. 284 Clause 10.14 does not bear on the point, simply because there was no agreement, or certification, as to the impact of handing over partial possession on liquidated damages. The harsh reality is that Stuart neglected to protect its position when it agreed to hand over part of the works. 285 If clause 10.14 were enforceable, it would provide a mechanism for the adjustment of liquidated damages. In that case, the question having been addressed when the contract was made, there could be no question of penalty. If clause 10.14 were not enforceable (because, as Feteni submitted, it was an agreement to agree), it could have no bearing on the question of penalty. If it was not effective to force Stuart to hand over possession of part of the works prior to completion then the impact, on liquidated damages, of Stuart agreeing so to do was, as I have said, something flowing from Stuart's subsequent act and not from the terms of the contract. 286 However one approaches the question, the stipulated sum of $15,000 per week cannot be regarded as penal in character. Liquidated damages – other issues 287 Stuart raised three other arguments relating to the application of liquidated damages. The notice argument 288 Firstly, Stuart submitted that liquidated damages could not be levied because "the Architect" had not given the requisite notice. 289 The requirement for notice arises under clause 10.14.01 and is picked up in clause 10.14.02: "If such notice is given the Builder shall pay or allow … ". 290 The provisions of clause 10.14, in so far as they relate to practical completion of stages, are irrelevant. The only relevant provisions are, in the events that have happened, those contained in clause 10.14A. Clause 10.14A does not include any requirement for notice, of the kind set out in clause 10.14.01 and apparently made a condition of entitlement by clause 10.14.02. Nor do I think that there is any basis upon which the notice provisions in clause 10.14.01, .02 can be transported to, or imported into, clause 10.14A. 291 I do not need to consider the point, whether entitlement under clause 10.14 (excluding clause 10.14A) depends upon the giving of notice by the Architect. It is sufficient, to dispose of this argument, to say that no such notification requirement (assuming it to be a condition precedent to entitlement) affects Feteni's entitlement under clause 10.14A. The grace period 292 Stuart submitted that the effect of clause 10.14A(ii) was that liquidated damages did not run until 4 weeks after practical completion had in fact occurred. If Stuart achieves practical completion within that 4 week period, it is not liable for liquidated damages. If it does not, then the "grace" allowed to it by the subparagraph expires. 293 The necessary consequence, in my view, is that if Stuart does not complete during the grace period then it remains liable to pay liquidated damages from the date for practical completion. Any other construction would render subparagraph (i) meaningless. 294 I should note that Stuart's submissions on this point related also to the question of penalty. That is because, Stuart submitted, "Feteni's genuine pre-estimate of loss for the first four weeks of delay was nil". On the construction that I think is correct, that is not the case. Feteni's estimate of loss for each of those weeks was $15,000. However, as a matter of grace, it agreed not to enforce its entitlement to those liquidated damages if practical completion could be achieved within the grace period. The prevention principle 295 Stuart relied on the provisions of clause 73, in so far as they are relevant, to support an argument based on the prevention principle. It relied on decisions such as Turner Corporation Pty Ltd (Receiver & Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378. 296 As I have noted in para [9] above, Feteni did not agree that this was properly an issue between it and Stuart. In my view, Feteni's submission is correct. Stuart does not assert in the summary of its contentions that Feteni's entitlement to liquidated damages is, in whole or in part, vitiated by the application of the prevention principle. Nor has Stuart filed any reply to Feteni's defence in which it raises the prevention principle. 297 In those circumstances, the prevention argument requires no further consideration. Conclusions on liquidated damages 298 It follows from what I have said that Feteni is entitled to liquidated damages from the extended date for practical completion (ie, from the expiry of 45 working days after 11 October 1999) up until 10 March 2000. Feteni's claim for general damages 299 Feteni's claim for general damages was pressed in the alternative to its claim for recovery of liquidated damages. The conclusion to which I have come on liquidated damages renders it unnecessary for me to consider the claim for general damages. The claim against Edmiston Associates 300 As at mid August 1998, Mr Edmiston's knowledge or understanding relating, so far as relevant, to the certification letter, may be summarised as follows. 301 As at 11 August 1998 (and indeed, as at 2 June 1998) Mr Edmiston had copies of the various drawings referred to in the certification letter. He had a copy of the conditions attached to the relevant council consents. He agreed that, to his knowledge, the information set out in the certification letter remained accurate as at 11 August 1998, he having no reason to think that the drawings had changed between 2 June and 11 August 1998. He was aware of the relevant requirements of the BCA and had a copy with him when he reviewed the drawings. Likewise, he was aware of the requirements of AS 1428.1 and had a copy with him when he reviewed the drawings. It is not clear whether or not Mr Edmiston had available a copy of the Howse report. If he did not, he must have been aware, from the terms of Mr Hickman's memorandum of 11 August 1998, of the existence of something corresponding to that report. 302 Further: (1) As at 2 June 1998, Mr Edmiston understood that Stuart was, in effect, the "builder-designate" for the project; and (2) As at 11 August 1998, Mr Edmiston understood that Stuart was the contracted builder for the project. 303 Mr Edmiston's evidence showed that he was aware of the step down at the front of the building to the footpath level. He thought that, at about one point, it was 75 mm, but that it was not clear precisely where the step down was, or whether it persisted for the whole of the frontage (or even for the whole of the entrance). 304 In fairness to Mr Edmiston, the drawings are not particularly clear. He said, and it appears to be the case, that other drawings that were made available to him did not show any discrepancy in levels between the ground floor (at the Dolphin Street frontage) and the footpath. 305 Mr Edmiston understood (as was the case) that there was no work proposed to the ground floor slab or to the footpath. He must therefore have understood that, if the works were carried out in accordance with the drawings that were the subject of the certification letter, any discrepancy in levels between the ground floor and the footpath at the Dolphin Street entrance would be unaffected by those works. 306 Mr Edmiston did not visit the site before preparing his certification letter: it appears that he worked off the drawings. He was therefore unaware of what was, on the evidence, a substantial step down at the entrance of about 150 mm. Mr Edmiston says that, when he did visit the site, hoardings were erected on the Dolphin Street frontage which effectively concealed the step down. 307 It is correct to say, as Mr Sirtes of Counsel who appeared for Edmiston Associates submitted, that there is no evidence to suggest that the certification letter was in any way relevant to Stuart's decision to enter into the contract or to the terms that it negotiated. But that is not the basis upon which Stuart brings its claim against Edmiston Associates. 308 In substance, Stuart's claim against Edmiston Associates is put two ways: (1) Negligence in the design of the works in a manner that did not comply with the relevant provisions of the conditions of consent, the BCA and AS 1428.1; or (2) Negligence in certifying that the design of the works (to the extent that it was shown in the plans listed in the certification letter) did comply with those relevant requirements. 309 The first way in which Stuart puts its case cannot be sustained. Edmiston Associates did not prepare the design that was shown in the preliminary documents. That was done by H+B. Edmiston Associates did not hold itself out as having designed the works. Edmiston Associates did not warrant, or make any representation as to, the sufficiency of the design in general terms: the only representation that has been pleaded and proved is that set out in the certification letter. 310 In considering the extent of Edmiston Associates' undertaking, it is necessary to bear in mind that, although Edmiston Associates was named in the contract as the Architect, the contract also provided – and Stuart must be taken to have known at all material times - that in fact Tatton Park would perform the duties of the architect under the contract. 311 The case that is pleaded against Edmiston Associates, based on the certification letter, is itself put in two ways. Firstly, it is said that: (1) Edmiston Associates held itself out as possessing the skill and competence necessary to … certify that the design of the works prepared by others complied with the relevant requirements. (2) It was reasonably foreseeable that Stuart would rely on such certification prepared by Edmiston Associates. (3) Negligent certification, as to the relevant requirements, was likely to cause economic loss of the kind in fact said to have been suffered. (4) Accordingly, Edmiston Associates owed Stuart a duty of care. (5) Edmiston Associates breached that duty of care when it certified that the design of the works prepared by H+B complied with the relevant requirements. 312 Secondly, the case is put as a representation case within s 52 of the Trade Practices Act, although in this case too it is alleged that Edmiston Associates owed Stuart a duty to take reasonable care in making representations concerning the design of the works. 313 In this formulation, the representation is also particularised as having been made by the certification letter. 314 It is not pleaded that Edmiston Associates in effect recertified in August 1998. That is to say, there is no pleaded case that, through the events that I have outlined in paras [229] to [233] above, Edmiston Associates made a representation to Stuart in August 1998, on the terms of the certification letter. 315 In this, the pleaded case against Edmiston Associates may be compared with the pleaded case against Tatton Park. In essence, Stuart says that Tatton Park, by its memorandum to Stuart of 13 August 1998 (see para [232] above), represented to Stuart that Edmiston Associates' design of the works complied with the relevant requirements. 316 I leave aside, for the moment, the obvious deficiencies in this pleading – for example, the certification letter was limited to the drawings listed in it; those drawings had been prepared by H+B; and Tatton Park's memorandum referred to (although it did not in fact send) an "Architectural certificate …" – presumably in answer to the request to "obtain certification from the Architect … that the documentation has been revised to fully comply with … the relevant requirements". What is of present significance is that this is the only pleading of a representation made by any defendant in August 1988. 317 I therefore conclude that Stuart's case against Edmiston Associates should be decided as it is pleaded – namely, based on Edmiston Associates' act in sending the certification letter to Mr Britt of Stuart on 2 June 1988. 318 So regarded, Stuart's case against Edmiston Associates must fail. There is no evidence of reliance. I accept that, in the ordinary way, where certification is requested, it may be presumed that it is requested so that it can be used, or relied upon, in some way. The pleaded case is that Stuart relied upon the certification letter in entering into the contract and, thereafter, constructing the works in accordance with the design drawings prepared by others and certified by Edmiston Associates. But Mr Britt has not been called to say why it was that he wanted the letter, nor has his absence been explained. Indeed, there is no evidence from Stuart that it wanted the certification letter, nor did Mr George Papallo give evidence of a conversation with Mr Britt (or anyone else) wherein a request was made for the certification letter. (That having been said, I think it is highly unlikely that Mr George Papallo would have asked Mr Edmiston to prepare the certification letter unless, as he said, a request for it had been made.) 319 There is no evidence to suggest that the construction of disabled access at the Dolphin Street entrance, either as originally proposed by Mr Edmiston or as required by Mr George Papallo, would have cost significantly more than constructing what was shown on the drawings (access from the rear of the reception area into the car park). There is no basis upon which I can conclude that Stuart would not have entered into the contract, on the terms that it contained, if it did not have the certification letter. 320 Further, as Stuart must have known, the contract contained extensive obligations requiring it to revise the Preliminary Documentation and to produce Final Documentation that complied with all the relevant requirements. It also contained extensive provisions relating to responsibility for the documentation: (1) Clause 1.03A.1.6.2 (clause 1.03A was inserted by special condition 2) – Stuart acknowledged that Feteni and (among others) its consultants (I interpose that Edmiston Associates was one of those consultants) did not warrant the accuracy, completeness or applicability of the preliminary documents; and that Feteni was relying on Stuart to assess, interpret and propound the Final Documents. (2) Clause 1.03A.1.6.3 – Stuart accepted responsibility for all errors and omissions in the Final Documents. (3) Clause 1.03A.1.3.4 – Stuart acknowledged that the preliminary documents were provided without warranty as to their correctness, completeness or accuracy, and that it was Stuart's responsibility to check and verify them and determine their applicability. (4) Stuart's obligations under clause 1.03.03 as amended by special condition 3.3 (see para [18] above). (5) Clause 1.03.04 added by special condition 4 – Stuart's obligation to refer to the consultants for completion of the Final Documents. (6) Clause 1.05 – Stuart was obliged to comply with, among other things, the lawful requirements of (in the circumstances) council. 321 Given that the work of revision (intended, among other things, to ensure compliance) was to be made after award of the contract, and to take as its starting point documents in respect of which Feteni and its consultants (including Edmiston Associates) were acknowledged to have no responsibility, it is impossible to conclude, in the absence of acceptable evidence, that Stuart relied on the certification letter in deciding to enter into the contract. 322 Far less, given all those circumstances, is it possible to conclude that Stuart relied upon the fact that the certification letter had been given on 2 June 1998 in deciding to construct in accordance with (among others) the drawings listed in that letter. In this context, the insignificance of the certification letter is confirmed by the circumstance that, when Mr Georgiadis sent his request for certification on 10 August 1998, he was not even aware of the existence of the certification letter. One would have thought that, if it had already assumed the importance which Stuart now seeks to attribute to it, it might have been drawn to his attention. 323 I would be prepared to assume, contrary to the submission for Edmiston Associates, that it owed a duty of care to Stuart in preparing the certification letter. However, I do not find that Stuart relied upon it – more accurately, upon the fact that it had been sent to Stuart on 2 June 1998 – in deciding either to enter into the contract or, thereafter, to construct the works in the way that it did. 324 If I am wrong in my view that Stuart's case as pleaded does not embrace the events of August 1998 in so far as they relate to the certification letter, then it is necessary to consider whether Edmiston Associates then made any fresh representation to Stuart on the terms of the certification letter. Alternatively, it would be necessary to consider whether Edmiston Associates represented to Stuart that the certification letter showed "that the documentation has been revised to fully comply with Council conditions, the BCA and the Trevor Howse Report". 325 It may be arguable that, by the events that I have already described, Mr Edmiston through Mr Hickman represented to Mr Georgiadis that the certification letter was a "certification" as called for by Mr Georgiadis' request of 10 August 1998. However, I do not think that, considered objectively, the certification letter can be so regarded. 326 It is clear that, in August 1998, Stuart was undertaking the process of revising the Preliminary Documents into the Final Documents. Mr Georgiadis said that the drawings were being "finalised" in August 1998, and that he was "seeking to ensure the changes did not impact on the council requirements": T 118.40. He did not understand, from the certification letter, that Mr Edmiston was then engaged in the process of revising documents: T 118.55, 119.25. He "knew", or "believed", that the documents "were being fully revised by Mr Edmiston to produce a final set of documents": T 119.30-.35. However, there is no evidence of any fact that would support this belief; and the evidence shows that Mr Edmiston was not, as at June or August 1998, engaged in any such process of revision. 327 The request made by Mr Georgiadis on 10 August 1998 corresponded exactly with the intention stated by him in evidence: he wanted to be satisfied that the documents as revised (ie, from their precontractual and contractual states) would meet the relevant requirements. It must have been apparent to him, had he thought about the matter, that a letter dated 2 June 1998 referring to revision of documents that had been prepared well before the contract was entered into could not satisfy his request. 328 Assuming, without deciding, that some duty of care rested upon Edmiston Associates in favour of Stuart in the circumstances that existed around 10 to 13 August 1998, and assuming, without deciding, that, in those circumstances, Edmiston Associates made some representation to Stuart as described in para [314] above, I find that Stuart could not, and therefore did not, reasonably rely on any representation that was then made on the terms of the certification letter. In other words, even if there were reliance in fact (a matter upon which the evidence is silent), there could be no reasonable reliance. 329 In this context also, I do not think that it is appropriate to infer reliance in fact. That is because, as I have said, I do not see how someone in Mr Georgiadis' position could have regarded the production, or reproduction, of the certification letter as responsive to his request of 10 August 1998, particularly given his explanation of that request. 330 If, therefore, contrary to my analysis, Stuart's case does extend to a case in negligence or under s 52 based on the relevant events of August 1998, that case must fail. 331 In case I am incorrect in the approach that I have taken on the question of liability, I will look briefly at the question of damages. In brief, I would conclude in any event that Stuart's case against Edmiston Associates failed because Stuart suffered no loss as a result of any breach that may have occurred of any duty that may have been pleaded, or of s 52. 332 I have already concluded that disabled access from Dolphin Street in accordance with Mr Edmiston's initial (November 1999) proposal would have satisfied Stuart's obligation under the contract. There is no basis on which I could conclude that the construction of such access would have cost any more than the construction of the insufficient access at the rear of the foyer from the car park. Further, on the evidence, that work could have been undertaken at any time without delaying practical completion. Indeed, on the evidence, even if it had been undertaken after 12 November 1999 (when the problem was pointed out by Mr Hines of Randwick Council), it could have been constructed in a time ranging (on the evidence) from 2 to 5 working days. In other words, even at that late stage, disabled access sufficient to comply with the contract could have been constructed before the issues relating to survey and smoke hazard management were dealt with. 333 On no basis, therefore, can it be concluded that Stuart suffered loss unless it is legitimate to take into account not just the work initially proposed by Mr Edmiston but the more extensive work required by Mr George Papallo. The claim against Tatton Park 334 Stuart asserts that, by sending the memorandum of 13 August 1998 referred to in connection with EOT 4 (see para [232] above), Tatton Park either made negligent misstatements or engaged in misleading or deceptive conduct. The essential claim is that Tatton Park was not merely a conduit for the transmission of information from Edmiston Associates to Stuart, but itself effectively vouched the accuracy of the information that it purportedly transmitted. 335 In my view, Stuart's claim against Tatton Park is doomed to fail. The reasons may be explained shortly: (1) Stuart asked Tatton Park to obtain certification from (relevantly) "the Architect". It did not ask Tatton Park itself to provide certification. (2) Neither Mr Georgiadis or anyone else from Stuart said that Stuart relied upon Tatton Park's memorandum of 13 August 1999 as containing some independent vouching or warranty by Tatton Park of the material that was purportedly transmitted. (3) In context (particularly having regard to Mr Georgiadis' request of 11 August 1999 to which the memorandum of 13 August 1999 purported to respond), it is simply not possible to conclude that: § Tatton Park knew, or should have understood, that it was being asked itself to provide independent certification. § Stuart in fact requested Tatton Park itself to provide independent certification. § Tatton Park itself did in fact provide independent certification. (4) In truth, Tatton Park did no more than seek to pass on Mr Georgiadis' request to Mr Edmiston, and seek to pass on Mr Edmiston's response to Mr Georgiadis. (5) In fact, as the evidence shows, Tatton Park failed to achieve either of the objectives that I have just described. (6) Additionally, the very circumstance, just adverted to, that Tatton Park did not send a copy of the certification letter to Stuart under cover of the memorandum of 13 August 1999, shows that Tatton Park did not make any representation and did not engage in any relevant conduct that is capable of being characterised as misleading or deceptive. (7) For much the same reason, if Stuart had given evidence of purported reliance on some purported representation or conduct on the part of Tatton Park, arising out of the events of 11 to 13 August 1999, the reason that I have just given must mean that that reliance was not reasonable. 336 In any event, even if I am wrong in all this, the reasons that I have given for saying that Stuart's claim against Edmiston Associates fails must also mean that Stuart's "shoot the messenger" claim against Tatton Park must fail. Cross-claims between the defendants 337 The conclusions to which I have come on the relevant issues between Stuart and Feteni, Stuart and Edmiston Associates, and Stuart and Tatton Park mean that none of the cross-claims for contribution or indemnity between the defendants requires consideration. Each of them must fail because the relevant cross-claimant has no liability in respect of which any question of indemnification could arise. CSA's claim: 55010 of 2002 338 The conclusions to which I have come in respect of the meeting of 30 August 1999 mean that this claim must fail. 339 Even if I am wrong, and some guarantee of completion had been given at the meeting of 30 August 1999, I would find that CSA's claim against Stuart must fail. That is because, on the evidence: (1) Any guarantee had been unequivocally withdrawn by 1 September 1999 (see the letter of that date from Mr Georgiadis to Mr Hickman referred to in para [76(1)] above). (2) Mr Hickman and Mr Sam Papallo acknowledged that they so understood Mr Georgiadis' letter of 1 September 1999. (3) Nothing relevant, by way of reliance, detriment, or the like, occurred between 30 August and 1 September 1999. (4) Whatever steps were taken (and, for this purpose, it is immaterial by whom they were taken) after 1 September 1999 to prepare for the opening and operation of the serviced apartments must have been taken in the knowledge that any "guarantee" of completion had been withdrawn. 340 It is, therefore, clear that there was no relevant reliance on the alleged guarantee. Indeed, Mr Sam Papallo's evidence was that no steps were taken, or expense incurred, after 1 September 1999 that were not planned to have been taken, or incurred, prior to 30 August 1999. The asserted reliance is not made out in fact; and even if, subjectively, there were reliance, it could not have been regarded as reasonable after 1 September 1999. There is no element of loss attributable to any such asserted subjective reliance between 30 August and 1 September 1999. Summary of conclusions; order 341 My conclusions on the various questions that are comprehended by the order under Pt 31 r 2 are as follows: (1) EOT 2: Stuart is entitled to an extension of time of 27 working days from 11 October 1999. (2) EOT 3: Stuart is entitled to a further extension of time, (ie, additional to that in respect of EOT 2) of 18 working days. (3) EOT 4: Stuart is not entitled to an extension of time. (4) The date for practical completion: is 45 working days after 11 October 1999. (5) The date of practical completion: is 10 March 1999. (6) Penalty: The relevant clause of the contract, 10.14A, is not a penalty. (7) Liquidated damages: Feteni is entitled to liquidated damages at the rate of $15,000 per week or pro rata from the extended date for practical completion (ie, from the expiry of 45 working days after 11 October 1999) up until 10 March 2000. (8) Feteni's claim for general damages: does not need to be decided. (9) Stuart's claim against Edmiston Associates: fails. (10) Stuart's claim against Tatton Park: fails. (11) Cross-claims between each of the defendants: each fails. (12) CSA's claim (55010 of 2002): fails. 342 In accordance with the wishes of the parties, the only order that I make is that the proceedings are stood over to a date to be arranged by the parties with my associate (but no later than 30 April 2004) to enable the parties to bring in short minutes of order to give effect to these reasons and to put submissions on costs. As I have intimated in para [6] above, the draft orders should make provision for the reference of the outstanding issues under Pt 72. ****** Last Modified: 04/14/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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