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CASE NOTE
Owners Corporation 1 Plan No PS 707553K and Ors v Shangri-La Construction Pty Ltd (ACN 130 534 244) and Anor [2023] VCC 1473 (24 August 2023)
County Court of Victoria
Judge McNamara
In Owners Corporation 1 Plan No PS 707553K and Ors v Shangri-La Construction Pty Ltd (ACN 130 534 244) and Anor [2023] VCC 1473 (24 August 2023), County Court of Victoria (Judge McNamara) was considering (for the first time) the State of Victoria’s subrogation right where an Owners Corporation claimed against a building company in respect of defective (combustible) cladding. In particular, the County Court was considering the liability of directors of such a building company and the “lack of knowledge or consent” defence.
Section 137F of the Building Act 1993 (Vic) (commencing on 19 November 2020) provides, so far as relevant, as follows:
“137F Subrogation
(1) This section applies if, after the commencement of section 54 of
the Cladding Safety Victoria Act 2020, Cladding Safety Victoria
pays an amount to an owner of a building (the payee) by way of a
grant of financial assistance in relation to cladding rectification
work on the building.
(2) When the financial assistance is paid to the payee, the Crown is
subrogated to all the rights and remedies of the payee against
any person in relation to the installation or use of any non
compliant or non-conforming external wall cladding product, or
other building work, that required the cladding rectification work to
be undertaken.
(3) If a right or remedy to which the Crown is subrogated under this
section is exercisable against an entity that is not an individual, it
is enforceable jointly and severally against the entity and the
people who were its officers at the time the act or omission that
gave rise to the right or remedy occurred.
(4) If it is proved that an act or omission by an entity occurred without
the knowledge or consent of an officer of the entity, a right or
remedy is not enforceable as provided by subsection (3) against
the officer in relation to the act or omission.
(5) The Crown may exercise its rights and remedies under this
section in its own name or in the name of the payee.
(6) If the Crown brings proceedings under this section in the name of
the payee, the Crown must indemnify the payee against any costs
awarded against the payee in the proceedings.
(7) If, in exercising its rights and remedies under this section, the
Crown recovers more money than the amount of financial
assistance paid to the payee, the Crown must pay the difference
to the payee after deducting costs incurred to recover the money.
(8) The payment of an amount referred to in subsection (1) in relation
to cladding rectification work does not affect any right or remedy
of the Crown by virtue of subsection (2) to recover from a person
in relation to the installation or use of any non compliant or nonconforming
external wall cladding product, or other building work,
that required the cladding rectification work to be undertaken.
(9) A reference in this section to the rights of a payee includes any
right the payee may have under section 86 of the Sentencing Act
1991.
(9A) Despite the amendment of this section by section 54 of the
Cladding Safety Victoria Act 2020, any right of subrogation
conferred on the Crown under this section as in force immediately
before its amendment continues to have effect.
(10) In this section—
officer—
(a) in relation to an entity that is a corporation—means an
officer of the corporation within the meaning of section 9
of the Corporations Act; or
(b) in relation to an entity that is neither an individual nor a
corporation—means an officer of the entity within the
meaning of section 9 of the Corporations Act.”
The key facts:
His Honour said:
105 The evidence established, and it was not in dispute, that the use of RMAX
Orange Board – a form of EPS – was known to Mr Naqebullah, since he was in
charge of Shangri-La’s building operations. He knew that this material was being
employed, and he consented to it. Dr Wolff contended that the ss(4) defence
was available to Mr Naqebullah if he could be shown to have been ignorant of
what now seems to be known and accepted by everyone: namely, that the
“Alternative Solution” authorised or purportedly authorised by the building permit
for Stage 2 in its original or varied form, and approved in the fire engineering
briefs and report, did not achieve the performance requirements under the
Building Code of Australia 2010. Likewise, it was Mr Naqebullah’s case that, not
being aware of the unsuitability of EPS or external wall cladding, he was
unaware that the material used by Shangri-La under his direction was not
suitable material for external cladding, and that an apartment house clad by this
combustible cladding was not suitable for its purpose.
106 The State contended, and I did not understand Dr Wolff to deny, that the form of
ss(4), and, one may think, the fact that matters of knowledge and consent are
peculiarly within Mr Naqebullah’s knowledge and not within the knowledge of the
plaintiff owners or the State, meant that the burden of proof on this issue rested
with Mr Naqebullah.
107 Mr Naqebullah’s written and oral evidence was to the effect that he was at
relevant times in 2014 and 2015 ignorant that there was any problem with the
use of EPS, and he had his company employ it in construction because it was
“green-lighted” by the relevant building surveyor and by the fire engineer. He
said he was also influenced by what transpired at the design meeting in June
2014 where, as noted above, the discussion between the attendees was as to
the proper brand of EPS to use, and the consensus was that the product RMAX
Orange, the product which was in fact fitted, was the one to use. He said he was
also influenced by an email from the fire engineer indicating the suitability of
RMAX Orange by email dated 9 April 2014, albeit with respect to a different
development at 58 Queens Parade, Fitzroy (CB 5051).
108 Whilst a number of comments were made by Ms Crafti and Mr Chaile, and a
number of attacks in cross-examination were mounted as to these matters, it was
not squarely put to Mr Naqebullah that he was lying in so far as he had given
such evidence; nor could it be said that this evidence was other than probative
as to his level of knowledge at material times. In those circumstances, I accept
Mr Naqebullah’s evidence that he was unaware that EPS or RMAX Orange was
problematic or inappropriate in its use as external cladding on the building at
Hawthorn Road, and that he became aware as to this problematic nature only in
2016 or 2017.
109 The question then becomes whether the knowledge which Mr Naqebullah clearly
did possess, that EPS was being used as external cladding on the building at
Hawthorn Road, is sufficient to negative the defence he claims under ss(4) of
s137F without further proof that he knew that EPS was problematic and noncompliant
in that use.
….
113 Dr Wolff said that the subject matter of the “knowledge” or lack of knowledge
required for a consideration of the ss(4) defence was the relevant “act or
omission by an entity [viz Shangri-La]”. This, according to Dr Wolff, referred one
back to ss(2), identifying the act or omission which might impose liability on the
“entity”, in this case Shangri-La, as being “the installation or use of any noncompliant
or non-conforming external wall product … that required the cladding
rectification work to be undertaken”. He noted that the Act includes a definition
of cladding rectification work in s3 which is in the following terms:
“cladding rectification work means—
(a) building work in connection with, or otherwise related to, a product
or material that is, or could be, a non-compliant or non-conforming
external wall cladding product; or
(b) work of a type specified in a notice under section 185I of the Local
Government Act 1989”.
114 Dr Wolff said that this definition incorporated within itself a requirement that the
relevant material [here EPS] be “non-compliant or non-conforming”.
115 In a broad sense, Dr Wolff’s expatiation on the statutory provisions is plainly
correct. It does not, however, provide an answer to the question posed. As
previously noted, EPS is “non-compliant or non-conforming”. The textual
analysis leaves unanswered the question whether knowing that what is
admittedly a non-compliant or non-conforming material to be used amounts to
sufficient knowledge to exclude the ss(4) defence, whether one knows that the
material is non-compliant or non-conforming or not.
116 I referred the parties to a decision of the High Court of Australia in Yorke v Lucas
(1985) 158 CLR 661 (“Yorke’s case”). This case concerned the cause of action
for misleading or deceptive conduct, which at that time was constituted by s52 of
the Trade Practices Act 1974. Section 75B of that Act extended liability from a
corporation which has engaged in misleading or deceptive conduct to persons
who had aided, abetted, counselled or procured the contravention; induced the
contravention, whether by threats, promises or otherwise; or had “been in any
way, directly or indirectly, knowingly concerned in, or party to, the contravention”.
These provisions are now to be found in the Australian Consumer Law. The
counterpart of s52 of the Trade Practices Act is s18 of the Code.
117 Earlier High Court authority had established that a corporation which represented
to another person something which was misleading or deceptive was to be
regarded as having contravened s52 without any proof that the corporation knew
or ought to have known that what it represented was misleading or deceptive.
That is, the primary liability attaching to the corporation was absolute, in the
same way as the liability attaching to Shangri-La here – subject to the statutory
stay of proceeding – was strict and absolute in accordance with the warranties
implied by s8 of the Domestic Building Contracts Act.
118 Mr Lucas, a director of the relevant corporation, was found at trial not to be liable
as someone knowingly concerned in his company’s contravention because,
according to the summary in the joint judgment in the High Court of Mason ACJ,
Wilson, Deane and Dawson JJ:
“he [Mr Lucas] was insufficiently aware of the relevant facts for him to be
involved in the contravention within the meaning of ss75B and 82 of the
Act.” ((1985) 158 CLR 661, 665)
119 An appeal to the Full Court of the Federal Court against the dismissal of the
claim against Lucas was unsuccessful, and the matter then proceeded to the
High Court. The High Court affirmed the decisions below. According to the joint
judgment:
“A contravention of s.52 involves conduct which is misleading or
deceptive or likely to mislead or deceive and the conduct relied upon in
this case consisted of the making of false representations. Whilst Lucas
was aware of the representations – indeed they were made by him – he
had no knowledge of their falsity and could not for that reason be said to
have intentionally participated in the contravention.” ((1985) 158 CLR
661, 667−8)
120 Their Honours said later in their judgment:
“There can be no question that a person cannot be knowingly concerned
in a contravention unless he has knowledge of the essential facts
constituting the contravention.” ((1985) 158 CLR 661, 670)
121 Brennan J said:
“When the conduct constituting the contravention [of s52] is the making of
a false representation, it is immaterial that the corporation did not know
that the representation was false when it was made. The essential facts
to be established in sheeting home liability to a corporation under s.52
include the making of the representation and the falsity of the
representation but not the corporation’s knowledge of the falsity.” ((1985)
158 CLR 661, 675−6)
122 His Honour said:
“The operation of s.75B(a) in conjunction with s.52 may be incongruous,
for s.52 throws a strict liability on a corporation, but s.75B(a) does not
extend liability for a s.52 contravention to a person who procures the
corporation to engage in contravening conduct if that person is honestly
ignorant of the circumstances that give that conduct a contravening
character.” ((1985) 158 CLR 661, 677)
123 As to persons being knowingly concerned in the contravention, his Honour said
that he could not read the words “knowingly concerned in” as being the
equivalent of “unknowingly concerned in”. (Ibid)
124 Dr Wolff said in the course of his closing submission that “there were 1137 cases
decided” mentioning Yorke v Lucas “as of yesterday”: viz, 16 August 2023. He
continued:
“I have not gone through all of them, but when you read them, you always
see a reluctance by the various judicial authorities to accept something
that didn’t have some factual basis.” (T663, L26−30)
125 I have not read the 1,137 cases referred to by Dr Wolff.
….
137 The class of person who could be described as “officers” of the companies
involved in the construction of the buildings which required remediation is very
wide indeed. The Building Act “picks up” the definition of “officer” from the
Commonwealth Corporations Act. The concept of “officer” in that lengthy
definition specifically includes both company directors and secretaries as well as
persons who make “or participate in making decisions that affect the whole or a
substantial part of the business of the corporation”. It can therefore extend to
senior executives who do not hold positions on the board. We may consider that
in creating the defence established by ss(4) of s137F of the Building Act,
Parliament sought to immunise a number of obvious classes of “officers” from
liability. For instance:
(a) non-executive directors such as a building company’s solicitor or
accountant who sit on the board to bring their legal or accounting expertise
to the table;
(b) company secretaries who devote their time to office administration, keeping
or supervising accounts or accounting systems, payroll issues and so forth;
(c) executive directors or non-director executives involved in non-building
aspects of a company’s operations: for instance, a marketing manager or
someone devoted entirely to the raising of finance;
(d) executive directors or senior executives tasked to manage or supervise
particular projects which are not affected by the cladding issue.
138 There may be other obvious classes of officer whom Parliament intended to
exclude.
139 What remains when these obvious classes are excluded? The residuum, whom
on the face of it Parliament seemed to seek to subject to liability for the cladding
fiasco, would be directors and managers with building qualifications of one sort
or another, engaged in managing a building company’s building operation,
including in particular building projects where non-compliant cladding was used.
All of these “officers” could, one supposes, establish, as plausibly as Mr
Naqebullah has sought to do in this proceeding, that whilst they are and were
generally expert in building matters, they were not expert in fire engineering. The
market was using what are now seen as non-compliant combustible materials for
cladding (as testified by the figures quoted by Dr Wolff). They relied on the
expertise of fire engineers and relevant building surveyors. This line of defence
could generally be advanced, one would suppose, by the whole of this residual
class of persons, unless perhaps one or more of them was in fact a fire engineer
himself or herself.
140 The result of Dr Wolff’s proposed construction of the ss(4) defence is that officer
liability under s137F would be a mere brutum fulmen, which cannot be what
Parliament intended. A document described as “Specifications & Finishes
Schedule”, stamped by the relevant building surveyor as “APPROVED”, in the
“External” section referred at Line 1.3 to “Styro Foam Rendered” (CB 6918). On
the basis of the judgment of Flick J in Parker’s case and the considerations just
mentioned, I conclude that Mr Naqebullah’s “knowledge” of this cladding issue,
namely that RMAX was being used on the Hawthorn Road site, is sufficient to
exclude him from the benefit of the ss(4) defence. This construction of that
defence is the preferable one, because it advances the purposes of the Cladding
Safety Victoria Act 2020; whereas the construction advanced by Dr Wolff, for the
reasons explained, does not.
….
His Honour concluded that the Builder’s director “knowledge” of this cladding issue, namely that RMAX was being used on the Hawthorn Road site, is sufficient to exclude him from the benefit of the Section 137F(4) defence.
In UCI v Alex Rasmussenvar linkvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = functionvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} (){documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .location = link.getAttribute(‘href’);} &var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ; Denmark NOC &SF, the Court of Arbitration for Sport wasvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} reviewing the Demark NOC and Sports Federationvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3rd quarter 2010, and (this was a disputed breach) on 28 Aprilvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 2011. In relation to the 28 April 2011 filingvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} failure, the breach had not been notified by UCI to Rasmussen within 14var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that
a departure from the IST can invalidate the finding of an anti-doping rule violation only invar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} the event that the particular anti-doping rule violation had been caused by the departure itself. Thevar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} Tribunal reduced thevar linkvar link = documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.
In UCI v Alex Rasmussenvar linkvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = functionvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} (){documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .location = link.getAttribute(‘href’);} &var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ; Denmark NOC &SF, the Court of Arbitration for Sport wasvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} reviewing the Demark NOC and Sports Federationvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3rd quarter 2010, and (this was a disputed breach) on 28 Aprilvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that
a departure from the IST can invalidate the finding of an anti-doping rule violation only invar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} the event that the particular anti-doping rule violation had been caused by the departure itself. Thevar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} Tribunal reduced thevar linkvar link = documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.
In UCI v Alex Rasmussenvar linkvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .location = link.getAttribute(‘href’);} &var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} ; Denmark NOC &SF, the Court of Arbitration for Sport wasvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3rd quarter 2010, and (this was a disputed breach) on 28 Aprilvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14var link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that
a departure from the IST can invalidate the finding of an anti-doping rule violation only invar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} the event that the particular anti-doping rule violation had been caused by the departure itself. Thevar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} Tribunal reduced thevar linkvar link = documentvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} .getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.
In UCI v Alex Rasmussenvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} & Denmark NOC &SF, the Court of Arbitration for Sport was reviewing the Demark NOC and Sports Federation’s decision in favour of cyclist, Alex Rasmussen, in relation to a claimed failure to comply with location notification obligations. The WADA Rules (and the Denmark Association rules) make a combination of three missed tests and/or filing failures within 18 months constitutes an anti-doping rule violation. The Rules require athletes to provide/keep updated, their “whereabouts” for the purpose of out-of-competition testing. Rasmussen had failed to keep his whereabouts updated in in February 2010, duringvar link = document.getElementById(‘link2736’);link.onclick = function(){document.location = link.getAttribute(‘href’);} 3rd quarter 2010, and (this was a disputed breach) on 28 April 2011. In relation to the 28 April 2011 filing failure, the breach had not been notified by UCI to Rasmussen within 14 days, as required under the IST (International Testing Standard). The Tribunal concluded that the UCI failure 2011 to notify Rasmussen within 14 days did not prevent UCI from recording it as a missed test, on a number of grounds, including that
a departure from the IST can invalidate the finding of an anti-doping rule violation only in the event that the particular anti-doping rule violation had been caused by the departure itself. The Tribunal reduced the period of suspension form 2 years to 18 months (relating to degree of guilt), and determined that the suspension start from October 2011, when ineligibility was first imposed.
In Glenvill Projects Pty Ltd v North Melbourne Pty Ltd & Taylor [2013] VSC 717 (Vickery J), Justice Vickery (the Judge in Charge of the Supreme Court Technology, Engineering and Construction List) was considering a challenge to a decision of an expert appointed under an expert determination clause in a residential building contract.
His Honour referred to 500 Burwood Highway v Australian Unity & Ors in which His Honour had analysed the role of a contractually appointed expert, and the basis upon which an expert determination might be invalidated following judicial intervention. His Honour had said in 500 Burwood Highway:
…. there is no procedural code for expert determination, in contradistinction to arbitration. The activities of an expert are subject to little control by the court, save as to jurisdiction or departure from the mandate given. Unless the parties specify the procedure, the expert determines how he will proceed; it is rare for what might be perceived as procedural unfairness in an arbitration to give rise to a ground for challenge to the procedure adopted by an expert ….
For these reasons, unless required by the contract in question, the parties have no entitlement to insist that the expert adopt any particular procedure; or that the appointed expert seek their approval to the proposed determination; or that they are given any hearing or facility to provide input into the process. An expert is not obliged to afford to the parties procedural fairness in the manner required of a court or arbitration in a curial context. A certifying expert is not under an obligation to provide procedural fairness or natural justice in the absence of an express contractual provision, and there is none in the present case …. How the task is undertaken is in the hands of the expert, subject to anything to the contrary in the contract pursuant to which the appointment was made.
This result is in part the product of the contract and what is to be gleaned from it as to the intention of the parties. When the parties appoint an expert, they usually do so because they agree to place reliance on the expert’s skill and judgment. They implicitly agree to accept and be bound by the determination. In the usual case, provided the decision is arrived at honestly and in good faith, the parties will not be able to re-open it and will be bound by the result.
It is also in part the product of a particular body of expert experience, learning, skill and judgment which the parties wish to apply to the problem to be dealt with. This is to be applied in a manner which is untrammelled by procedural considerations, so that the specialist skills and insights of the expert can be freely applied to the issue.
Finally, considerations of commercial utility are likely to be relevant factors. Efficiency, the production of a speedy and authoritative outcome and the elimination of the expense of a more elaborate procedure, undoubtedly play a part in parties selecting the contractual process of expert determination.
Mistake or error in the process of the determination of the appointed expert will not invalidate a decision. However, if the expert asks the wrong question or misconceives the function of the appointment, the task required to be performed by the contract will not have been fulfilled. In this event, the determination will be exposed to being set aside.
Parties to a contract who, by the terms of that contract, agree to submit a question to an independent expert, are bound by the determination of that expert acting honestly and in good faith.
His Honour reasoned further in relation to the construction of the expert engagement contract:
An expert is appointed by contract to make an expert determination in respect of specific matters which may arise during the course of a commercial relationship. An expert, in making a determination, is not obligated to abide by the rules of procedural fairness in the manner required of a court or an arbitration in a curial context. The expert’s obligations with regard to procedural fairness, or natural justice …. , are defined by the content of the express contractual agreement between the parties comprised in the Expert Engagement Contract, which in this case includes the terms of the IAMA Rules.
The manner in which the task of making the determination in question is undertaken is in the hands of the expert, subject to anything to the contrary in the contract which governs the appointment of the expert and in the IAMA Rules.
The result which is arrived at by the expert – the determination, in this case – is thus ultimately the product of the contract in the full sense of the word, as properly construed in accordance with the usual approach to the construction of commercial contracts.
The approach was recently considered in ICM Investments Pty Ltd v San Miguel Corporation & Ors [No 2]). Where it was observed that the applicable principle is often stated in terms of a necessity to construe commercial agreements so as to accord with ‘business commonsense’ or ‘commercial reality’.
As Santow J said in Spunwill Pty Ltd v BAB Pty Ltd, in construing a written document, the object is to discover and give effect to the contractual obligations that reasonable persons in the position of the parties would objectively have intended the document’s language to create.
Further, the language used in the contract is generally assigned its natural and ordinary meaning, read in the light of the contract as a whole. Where it is ambiguous, surrounding circumstances may be taken into account in assigning the constructed meaning. The surrounding circumstances include the matrix of mutually known facts, and the background, object, context and commercial purpose of the transaction, in the objective sense of what reasonable persons in the position of the parties would have had in mind.
…. The commercial context in which a reference of disputes to an expert in a commercial contract is thus most relevant. The decision to refer disputes for determination by a contractually appointed expert will usually arise because the parties desire a particular body of expert experience, learning, skill and judgment to be applied to the resolution of defined issues which may arise in the course of the relationship and need to be dealt with. This problem-solving role is usually intended to be applied in a manner which is untrammelled by overly restrictive procedural considerations, so that the specialist skills and insights of the expert can be fully applied to the issues for resolution, in an expeditious and cost effective manner which is attended with an appropriate measure of ‘finality’.
This may give rise to the parties agreeing that they will abide by a decision which in hindsight appears to be ‘wrong’. In such circumstances, mistake or error in the process of the determination of the appointed expert will not invalidate a decision, as long as it is made in accordance with the terms of the agreement.
This is not to say that there are no parameters of fairness or that the determination will be unreviewable. For example, if the expert asks the wrong question or misconceives the function of the appointment, the task required to be performed by the contract will not have been fulfilled…..
In this case, His Honour ultimately concluded that the Expert had acted within the terms of his engagement in making the procedural determinations that he did.
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, the Judge in Charge of the Supreme Court of Victoria Technology, Engineering and Construction List (Vickery J) was considering the dispute resolution provisions under a design and construct contract for the construction of a rail freight terminal, a container paved area and a locomotive workshop together with associated facilities in Penfield, South Australia (though the Contract was governed by the law of Victoria). The General Conditions of Contract incorporated Australian Standard form of contract, AS4300-1995.
Summary Judgment:
The Contractor asked for summary judgment in respect of three unpaid payment claims, for approximately $3.13 million. The Principal claimed damages for breach of contract, and claimed a number of waivers and estoppels against the Contractor. His Honour ordered that the argument as to the principles to be applied in respect of summary judgment be argued before the Court of Appeal. His Honour then applied those principles. At paragraph 19, His Honour said:
The Court of Appeal determined the following upon the present state of authority, which I adopt and apply in these reasons:[1]
(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail test” essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
Payment Claims:
His Honour then set out Clause 42.1 of the General Conditions of Contract (the standard form provision) and reviewed the facts surrounding the unpaid payment claims.
His Honour referred to a number of authorities to be followed where a progress payment certificate was not properly issued by the Superintendent under Clause 42.1. At paragraphs 29-31:
In Daysea v Pty Ld v Watpac Australia Pty Ltd (“Daysea”)[2] the Court of Appeal of the Supreme Court of Queensland considered the position under a contract which contained provisions very similar to clause 42.1 of the AS4300-1995 standard form. In that case the Superintendent failed to issue a progress payment certificate within the stipulated 14 days after receipt of a claim, but did so before the expiry of the 28 day period for payment. The Court of Appeal accepted that if the Superintendent under an AS4300-1995 failed to respond to a claim for payment under clause 42.1 within 14 days, even if it did respond shortly thereafter, the Principal was still obliged to pay the amount of the claim. Williams JA observed that a strict approach to the construction of clause 42.1 should be adopted at least with respect to the provisions for payment, set off and deductions, and this was so because of the consequences which flow from the issuing of the certificate. His Honour reasoned as follows:
Of more significance is the decision of Rolfe J in Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215. The clause in question there was in the same terms as clause 42.1 here. The learned Judge found that the certificate issued by the Principal’s Representative did not satisfy the requirements of paragraph (a) to paragraph (f) of paragraph [4]. In consequence he said that “the Payment Certificate failed to comply with various contractual obligations as to its contents and that, accordingly, it was not a valid notice”. His reasoning for so concluding is set out in the following passage:
“… the effect of a Payment Certificate is to require the recipient to pay the amount stated. Failure to do so could lead to summary judgment and there is no right to dispute the amounts payable until the dispute resolution procedures are activated. Accordingly, the recipient of the certificate is required to pay money during the course of the contract which, at the end of the day, it may be found it does not owe. The requirement to pay money may lead to financial difficulties for the payer, just as the failure to receive money during the course of the contract may cause financial difficulties to the payee. Also the payee may not be able, at the end of the day, to refund any overpayment. Considerations such as these lead me to the conclusion that a certificate must comply strictly with cl 42.1 if it is to have the consequences specified”.
That reasoning is in my view compelling. As all of the cases I have just referred to establish, the consequences of issuing a certificate are serious. The proprietor is bound to pay the amount of the certificate notwithstanding that the amount is provisional only and subsequently may be found to be incorrect. Notwithstanding such considerations the proprietor must pay the amount specified in the certificate and take the chance that any excess can be recovered subsequently. Similarly, the contractor is not entitled to payment of anything more than the amount specified in the certificate though it may well be less than the progress claim made. Even though it may ultimately be found that the contractor was entitled to more, the recovery of any such amount must await the determination of disputes at the end of the contract.
Because of the consequences which flow from the issuing of the certificate strict compliance with the provisions of clause 42.1 is required …[3]
[Emphasis added]
Daysea was applied by Byrne J in Southern Region Pty Ltd v State of Victoria (No 3) (“Southern Region”).[4]
It follows that a certificate purportedly issued under clause 42.1 which does not satisfy the formal requirements of theclause is ineffective and invalid, or as Byrne J said in Southern Region: “… it was as if no certificate had issued at all.”
(emphasis added)
His Honour then considered the principles to be adopted where the Contractor failed to support the payment claim with evidence and any information required by the Superintendent. His Honour referred to the NSW Court of Appeal decision in Brewarrina Shire Council v Beckhaus Civil Pty Ltd . In that decision, the majority concluded that under clause 42.1 of AS2124–1992 the obligation of the Superintendent to issue a payment certificate in relation to a progress claim was subject to the condition precedent that the contractor support that claim with evidence of the amount due to it and with such information as the Superintendent might reasonably require.
His Honour referred to the Victorian Court of Appeal decision in Aquatec-Maxcon Pty Ltd v Minson Nacap Pty Ltd . The Court of Appeal, in adopting Brewarrina, said:
The decision is a recent, and carefully considered, decision by the New South Wales Court of Appeal which, so far as we have been told and so far as we are aware, is the only decision which currently exists on this particular point of construction of this paragraph of the clause. The point was argued by counsel for the appellant before the trial judge, in the course of which counsel referred his Honour to evidence which showed, or suggested, that the superintendent had repeatedly been seeking substantiation for the “one line variation claims”, and submitted that where the contractor persisted – in the face of opposition and request for further information – in submitting “one line claims” there must come a point where clearly the Progress Claim as presented is entitled to be regarded by the superintendent as not a claim within the meaning of clause 42.1. His Honour requested of counsel whether he (ie counsel) was able to show to him any authority where such an approach had been adopted to a claim, ie “where the claim has been treated by the court as being invalid for noncompliance …”. Trial counsel for the appellant conceded that he was not able to refer his Honour to any authority on the point; and his Honour then indicated to trial counsel for the respondent that he would not “trouble him” about the criticisms made of the progress claims.
His Honour, noting further that Warren CJ in Kane Constructions Pty Ltd v Sopov, while expressing some reservations regarding the application of Brewarrina and Aquatec as to the timing issue in the matter before her, had concluded that she was bound by the adoption of Brewarrina in Acquatec at the very least, or to regard Brewarrina as highly persuasive, concluded:
Accordingly, pursuant to clause 42.1 of the AS4300-1995 standard form contract, a failure by the contractor to support a payment claim with evidence and any information required by the Superintendent means that the Superintendent is not be obliged to issue a payment certificate to certify the payment of a progress claim.
(emphasis added)
His Honour concluded that on the facts before him, the Principal had a “real” chance of success on the material presented in the application, and concluded that summary judgment should not be awarded to the Contractor.
Stay Application – Section 8 Commercial Arbitration Act 2011 (Vic):
His Honour then addressed a claim for a stay of the Supreme Court proceedings pursuant to Section 8 of the Commercial Arbitration Act 2011 (Vic), on the grounds that there was an arbitration clause (the provision was the standard form Clause 47 of AS4300-1995). His Honour noted the important change between the new Act and the 1984 superseded Act. At paragraphs 125-126, 143 :
The use of the imperative word “must” in s 8(1), rather than the permissive “may”, which was employed in the superseded Commercial Arbitration Act 1984, removes the court’s discretion to refuse to grant a stay, and renders the provision mandatory. The only reason a court can refuse to grant a stay is if the arbitration agreement is found to be “null, void, inoperative or incapable of being performed”.[5] This means that if the requirements of the section are met the Court has no choice but to grant a stay of the proceeding before it and refer the matter to arbitration.[6]
This may result in some inefficiencies in case management in some cases, arising from the potential for litigation on the same project being conducted before different tribunals. Nevertheless the statutory meaning is clear.[7]
……. It follows that a Court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests, not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration.
(emphasis added)
Ultimately, His Honour decided that a stay should not be ordered in respect of certain parts of the claims, on the basis that the particular dispute was not, on the basis of other provisions of the Contract excluding a right of a party to institute proceedings to enforce payment under the Contract from the arbitration clause. In respect of the balance of the claims, His Honour ordered that those claims were to be referred to arbitration and ordered a stay.
[1] Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158 [35].
[2] Daysea v Pty Ld v Watpac Australia Pty Ltd (2001) 17 BCL 434.
[3] Daysea Pty Ltd v Watpac Australia Pty Ltd (2001) 17 BCL 434, 439 [20]–[22].
[4] Southern Region Pty Ltd v State of Victoria (No 3 ) (2002) 18 BCL 211.
[5] D Jones, Commercial Arbitration in Australia (2nd ed, Lawbook Co., 2013) p 108.
[6] Although in the 2009 Consultation Draft Bill the provisions vested a discretionary power in the court and more closely reflected s 53 of the Superseded Uniform Acts, following submissions from over 17 different organisations, the final Bill reflected s 8 of the Model Law. The imperative “must” replaced the permissive “may” such that granting a stay is now mandatory unless the court finds that the arbitration agreement is “null, void, inoperative or incapable of being performed”. D Jones, Commercial Arbitration in Australia (2nd ed, Lawbook Co., 2013) p 110.
[7] It has been noted that there will be situations that arise where matters are referred to arbitration as a consequence of the word “must” that would have been more efficiently conducted in court, for example, multi-party proceedings that will require arbitrations and potentially different findings of fact. See: D Jones, Commercial Arbitration in Australia (2nd ed, Lawbook Co., 2013) p 111.
n 470 St Kilda Road P/L (ACN 006 075 341) v Reed Constructions Australia P/L (ACN 003 340 341) & Philip Martin, Vickery J was reviewing an adjudication determination, where the Principal had argued that a statutory declaration provided by the Contractor was patently false. His Honour reviewed the authorities in relation to several questions, including:
In Braceforce Warehousing Limited v Mediterranean Shipping Company (UK) Limited [2009] EWHC 3839 (QB) Ramsey J (Sir Vivian Ramsey, the judge in charge of Technology and Construction, Queens bench Division), was considering arguments in relation to the commencement of an expert determination over defects in a warehouse the subject of an Agreement to Lease. Just before the 6 year limitation period (dating from the agreement) was to expire, the parties had exchanged letters in relation to extending the limitation period and appointing the expert.
His Honour observed that the Limitation Act did not seem to apply to expert determination (His Honour did not need ultimately to resolve this). Ultimately, His Honour concluded that Mediterranean’s letter proposing an expert for agreement, and advising that failing agreement it would apply to appointing body for an appointment, had commenced the expert determination procedure sufficient to stop any limitation period applying (if, in fact, a limitation period did apply in relation to expert determination).
His Honour, then, in addressing the appropriate forum where two valid sets of proceedings had been commenced, referred to the following passage from the speech of Lord Mustill in the House of Lords in Channel Tunnel Group v Balfour Beatty ….
Having made this choice I believe that it is in accordance not only with the presumption exemplified in the English cases cited above that those who make agreements for the resolution of disputes must show good reasons for departing from them, but also with the interests of the orderly regulation of international commerce that, having promised to take their complaints to the experts and if necessary to the arbitrators, that is where the appellant should go. The fact that the appellants now find their chosen method too slow to suit their purpose is, to my way of thinking, quite beside the point.
His Honour concluded:
This is a case where the Part 8 proceedings have been brought to prevent the expert determination continuing on grounds of lack of jurisdiction and I have rejected that application. The general position is that parties should be held to the terms of their contracts, but the court retains a discretion in each case. I am not persuaded in this case that the existence of the protective proceedings in court or the fact that, as in the Channel Tunnel case, the claimant now finds the chosen method of dispute resolution unsuitable, are factors which are so persuasive that they should outweigh the principle that the parties should be held to the agreed method of dispute resolution in accordance with clause 24 of the Agreement (emphasis added) .
This decision is modern high-level authority for the principle that, In cases where an expert determination clause is contained in an agreement, but one party then decides it prefers the proceedings to be litigated, the courts will require strong grounds to persuade them from the presumption that the parties should be held to their agreement.
In Thiess Pty Ltd & Anor v Arup Pty Ltd & Ors [2012] QSC 185, (10 July 2012), the Queensland Supreme Court (Applegarth J) was considering the terms of a Collaborative Consultancy Agreement (CCA) in relation to the Airport Link, Northern Busway (Windsor to Kedron) and East-West Arterial Gateway Projects, between Thiess John Holland (TJH) and Parsons Brinkerhoff Australia (PBA). TJH had engaged PBA as consultants for the design of the project. His Honour was asked to resolve whether, under the CCA, certain values of multipliers specified in the CCA were values agreed between the parties or were subject to audit by the Collaborative Agreement Auditor. His Honour concluded in favour of PBA, that the values were agreed between the parties and not subject to audit by the Collaborative Agreement Auditor.
His Honour considered the interpretation principles, reasoning as follows:
The proper interpretation of the contract is not determined in this case simply by competing contentions about which interpretation is the “more commercially sensible” construction. It is determined by the words of the agreement that were chosen by the parties, and the structure of Schedule 7.
His Honour reasoned in relation to the request for rectification:
These and other authorities appear to support the following propositions:
TJH had argued that there was a reasonable expectation that the multiplier was a genuine or reasonable estimate and that PBA had been acting in good faith in originally proposing them, and further, that it had a reasonable expectation of an auditor’s examination, and that if there was to be no such examination PBA would have disclosed this to TJH. His Honour summarised the cases:
[215] Silence or non-disclosure of information can be misleading or deceptive in various circumstances….. Whether silence constitutes misleading or deceptive conduct depends on all the relevant circumstances, and it is dangerous to essay any principle by which they might be exhaustively defined. However, “unless the circumstances are such as to give rise to the reasonable expectation that if some relevant facts exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist” …… Asking whether a reasonable expectation of disclosure exists is an aid to characterising non-disclosure as misleading or deceptive and has been described as a practical approach to the application of the prohibition in s 52.
[216] Sometimes a reasonable expectation of disclosure will not exist because parties to a commercial negotiation are not expected to disclose information which is confidential, and the starting point for their negotiations is the caveat emptor doctrine. On other occasions, a reasonable expectation of disclosure will exist because of the nature of the relationship, or because positive conduct or statements in the course of negotiations imply that a certain fact or matter exists or does not exist. A failure to qualify a statement made earlier in negotiations may be misleading or deceptive in the circumstances. Where, however, this is not the case, the reasonable expectation of disclosure of a certain fact must be found elsewhere. In this case, TJH seeks to source it by reference to the negotiation and entry into the Pre-Bid Agreement and the parties’ subsequent negotiations in relation to the commercial framework and the terms of Schedule 7, as pleaded in paragraph 85 of the second further amended defence and counterclaim. Whether conduct is misleading or deceptive or likely to mislead or deceive must be assessed on the basis of these facts and all the relevant circumstances.
Ultimately, His Honour concluded that there was no misleading and deceptive conduct in this instance, concluding that PBA should have the declaratory relief it sought.
In Skilled Group Ltd v CSR Viridian Pty Ltd & Anor [2012] VSC 290 (4 July 2012), Vickery J was considering a claim by Skilled Group for monies due by way of a restitutionary quantum meruit for engineering work it performed , under a subcontract that was never executed between Skilled and Pilkington, at a glass manufacturing plant in Dandenong owned by CSR. Skilled said that no concluded subcontract had been made between Skilled and Pilkington because, the parties had never agreed on two essential terms of the proposed subcontracts, namely the dates for practical completion and the proposed milestone dates for the purposes of calculation of liquidated damages.
His Honour noted previous cases where, though no contract had been executed, by the parties proceeding to perform the work, a contract had been formed. In relation to the formation of a contract, His Honour said:
94 In any determination as to whether a binding contract exists, it is the objective intent of the parties, as revealed in the factual context, that is the paramount consideration. The fact of agreement and its content is to be determined by the communications between the parties considered objectively. It is also legitimate to consider the factual context in which the communications took place. Regard may also be had to communications between the parties subsequent to the date of the alleged contract, at least to the extent to which those communications may inform the meaning of the language used by the parties in earlier exchanges between them which evidenced the fact of agreement and its content and defined the commercial context.
95 The subjective intention of the parties, as it may be expressed, for example in internal memoranda, or statements made by individuals as to as to subjective intention in the course of giving evidence, is generally inadmissible. However, in some circumstances such expressions of intention may amount to admissions and be admissible on that basis. However, care needs to be exercised in determining the content of any such admission.
His Honour considered the so-called “fourth class” of cases discussed in Masters v Cameron, where parties are content to be bound immediately and exclusively by the terms which they had agreed upon while at the same time expecting to make a further contract in substitution for the first contract, containing, additional negotiated terms, referring to Lord Loreburn, in Love & Stewart v S Instone & Co:
It was quite lawful to make a bargain containing certain terms which one was content with, dealing with what one regarded as essentials, and at the same time to say that one would have a formal document drawn up with he full expectation that one would by consent insert in it a number of further terms. If that were the intention of the parties, then a bargain had been made, none the less that both parties felt quite sure that the formal document could comprise more than was contained in the preliminary bargain.
His Honour concluded:
In my opinion, the parties reached agreement in this case in conformity with the fourth limb of Masters v Cameron as described by the High Court in Sinclair Scott. Their conduct clearly manifested an intention to elevate their commercial relationship beyond the clutches of the third class. …. By early May 2008 the parties reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms. At the same time the parties proposed to make a further contract in substitution for the first contract, containing negotiated additional terms relating to dates for practical completion of the three Sub-contracts and agreed milestone dates, upon which it was intended that the Sub-contracts would be formally executed……. 117 The factual analysis I have described, involving as it does the application of the fourth limb of Masters v Cameron, also goes to explain the negotiations between the parties which continued from early May 2008 as to dates for practical completion and milestone dates. What the parties were not about during this period was negotiating towards a set of original binding Sub-contracts, for by early May 2008 they were already bound to a concluded, but limited suite of bargains. What they were about was the negotiation of a new set of Sub-contracts in substitution for the already binding ones. The fact that the parties continued to negotiate for an alternative regime of dates, and this continued beyond early May 2008, had no bearing on the concluded bargains which were already in place. ……
In the light of the conduct described, I find it irresistible to conclude otherwise than implied contracts on the terms of the three Sub-contracts are to be inferred from the evidence and that these implied contracts operated to govern the Skilled works on the Project from the outset of their engagement.
His Honour concluded, therefore, that concluded subcontracts had been formed. Though no longer required, His Honour further concluded that, were it not possible to imply the existence of binding agreements, Skilled would have been estopped from denying the existence of the agreements as reflected in the three subcontracts.
In Ipex ITG Pty Ltd (In liquidation) & Takapana Investments Pty Ltd v State of Victoria [2012] VSCA 201, the Victorian Court of Appeal was considering a claim by an unsuccessful tenderer for a contract for the provision of ‘system integration services’ for the Parliament of Victoria. An evaluation plan had been prepared but not distributed to tenderers. Ipex’s tender had been assessed as not demonstrating a good understanding of what Parliament was seeking under the project, and not representing value for money albeit that its tender price was low (Ipex’s tender price was around $2.8 million compared to the winner’s price around $7.8 million), and removed from further consideration.
The trial judge held, and on appeal it was common ground, that there was a binding contract (‘the tender process agreement’) between Ipex and the respondent the express terms of which were contained in the Request for Tender (RFT). Ipex’s primary claim was for damages for breach of that contract.
The Court of Appeal concluded:
The use of a Dispute Review Board (DRB) on major projects has substantial support on projects worldwide and in Australia. Several major world-wide standard form agreements now include DRB clauses. The statistics on the minimal number of disputes coming out of projects with a DRB is compelling. A number of academic studies have been published in this area. The substantive conclusion from the above is that DRBs are used widely on major projects, with great success in reducing construction contract disputes.
