Parkview Constructions Pty Ltd v Futuroscop Enterprises Pty Ltd [2023] NSWSC 178

Supreme Court New South Wales

Medium Neutral Citation: Parkview Constructions Pty Ltd v Futuroscop Enterprises Pty Ltd [2023] NSWSC 178 Hearing dates: 29 August 2022, 1, 5, 6, 8, 15 September 2022; last submissions 14 November 2022. Date of orders: 2 March 2023 Decision date: 02 March 2023 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Plaintiff entitled to damages and return of bank guarantee. Defendant entitled to liquidated damages and rectification costs. Parties to bring in short minutes. Catchwords: BUILDING AND CONSTRUCTION — design and construct contract AS4902-2000 — contractor to construct two buildings — airport hotel and long stay carpark — to be completed in September 2017 —principal wishes to use hotel rooftop for tenants — development consent does not approve this use — hotel and carpark tenants commence operations in September 2017 – occupation certificate limits use of rooftop terrace to maintenance only – principal maintains practical completion yet to be achieved. PRACTICAL COMPLETION — superintendent to issue certificate of practical completion — 'conditional' certificates issued for each building — retrospective date of practical completion on satisfaction of conditions — whether 'conditional' certificates comprise a certificate of practical completion — case law review at [205]-[209] — whether can give a retrospective date at [212]-[213] — 'conditional' certificates have no contractual force. DETERMINATION BY COURT— whether Court can determine date of practical completion — consideration of Abergeldie Contractors v Fairfield City Council — does not depend on Superintendent having been "manifestly unreasonable" – contractual standard is 'reasonable' — whether Court can determine liquidated damages. LIQUIDATED DAMAGES — superintendent's certificate did not comply with the contract — whether Court can ascertain liquidated damages — liquidated damages calculated using objective criterion — Court can determine correct sum. DAMAGES — contractual regime for notifying and remedying defects — whether contract ousts common law damages — caselaw review at [248]-[253] — contract created exhaustive code governing parties' rights regarding defects — common law damages not available — contractual regime not followed — unnotified defects apparent on reasonable inspection — not entitled to costs of rectification for such defects. BUILDING AND CONSTRUCTION — security — contractor substitutes cash retention for bank guarantee — whether principal entitled to retain GST on cash retention until bank guarantee returned —GST payable on release of retention. Legislation Cited: Environmental Planning & Assessment Act 1979 (NSW) ss 4.2, 4.3 A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 9-10, 40-5, 99-1 A New Tax System (Goods and Services Tax) Regulations 2019 (Cth) reg 40-5.09(3) Cases Cited: Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99; [1973] HCA 36 Bedrock Construction and Development Pty Ltd v Crea [2021] SASCA 66 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373 Ian Delbridge Pty Ltd v Warrandyte High School Council [1991] 2 VR 545 JR Consulting & Drafting Pty Ltd v Cummings (2016) 239 ALR 625; [2016] FCAFC 20 Kenneth McMahon & Partners Pty Ltd v Domain Investments Pty Ltd (1973) 47 ALJR 240 Legal & General Life Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Lym International Pty Limited v Marcolongo [2011] NSWCA 303 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Metro Edgley Pty Limited v MK & JA Roche Pty Limited [2007] NSWCA 160 MLW Technology v May [2005] VSCA 29 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 National Roads & Motorists' Association v Whitlam (2007) 25 ACLC 688; [2007] NSWCA 81 Official Assignee of Hutson v The New Zealand Antimony Company (Ltd) (1890) 10 NZLR 143 Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Queensland Phosphate Pty Limited v Korda (as joint and several liquidators of Legend International Holdings Inc (in liq)) [2017] VSCA 269 RCR O'Donnell Griffin Pty Ltd [2015] QSC 186 RCR O'Donnell Griffin Pty Ltd v Forge Group Power Pty Ltd [2016] QCA 214 Re Arbitration between CME Contractors Pty Ltd and Redcliffe City Council (Unreported, Supreme Court of Queensland, Dowsett J, 8 September 1987) Republic of Turkey v Mackie Pty Ltd [2019] VSC 103 Stuart Pty Ltd v Feteni Pty Ltd; Coogee Sands Apartments Pty Ltd v Stuart Pty Ltd [2004] NSWSC 237 The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 Turner Corporation Pty Ltd v Austotel Pty Ltd (1994) 13 BCL 378 Walton v Illawarra [2011] NSWSC 1188 Whitworth Street Estates Ltd v Miller [1970] AC 583 WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489; [1999] WASCA 10 Texts Cited: Goods and Services Tax Ruling GSTR 2000/29, Goods and services tax: attributing GST payable, input tax credits and adjustments and particular attribution rules made under section 29-25 (11 December 2013) A New Tax System (Goods and Services Tax) Act 1999 (Cth); Goods and Services Tax Ruing GSTR 2006/1, Goods and services tax: guarantees and indemnities (11 December 2013) Category: Principal judgment Parties: Parkview Constructions Pty Ltd (Plaintiff) Futuroscop Enterprises Pty Ltd as trustee for Mascot Regal Holdings Unit (Defendant) Representation: Counsel: Mr M Ashhurst SC / Mr A Vincent (Plaintiff) Mr IGB Roberts SC / Mr H Pintos-Lopez / Mr J Pen (Defendant)

Solicitors: Salim Rutherford Lawyers (Plaintiff) William Roberts Lawyers (Defendant) File Number(s): 2018/380964

Judgment 1. HER HONOUR: The defendant, Futuroscop Enterprises Pty Ltd (the Principal), owns a site in Mascot near Sydney International Airport. The plaintiff, Parkview Constructions Pty Ltd (the Contractor), was engaged by the Principal to construct two buildings on the site, being a "Travelodge" hotel and offices (Building A) and a "Wilson Parking" long stay public car park (Building B). The Contractor now seeks to retrieve the security which it provided, whilst the Principal seeks liquidated damages and damages for defective building work. The issues in these proceedings are: 1. When a Contractor substitutes the form of security from cash retention to a bank guarantee, is the Principal entitled to retain GST on the cash retention until the guarantee is returned: see [34]-[42]; the answer is no. 2. Was the Contractor obliged to construct the Works to enable the Principal to use the building in a manner not then approved by the Council: see [186]-[203]; the answer is no. 3. Did two "conditional" certificates of practical completion comprise a certificate of practical completion under the Contract: see [204]-[218]; the answer is no. 4. Can the Court determine the date of practical completion, where the Superintendent contends it is yet to be achieved: see [219]-[224]; the answer is yes. 5. Can the Court ascertain liquidated damages, where the Superintendent has certified liquidated damages, albeit not in accordance with the Contract: see [231]-[242]; the answer is yes. 6. Does the Contract oust common law damages for defective building work: see [248]-[260]; the answer is yes. 1. In what follows, I have omitted claims not referred to by the parties in closing submissions, which I take not to have been pressed. Whilst I have been greatly assisted by the parties' written submissions, I have, by and large, not repeated those submissions here.

WITNESSES 1. The Contractor relied on the evidence of its director and construction manager, Emile Tabet, together with commercial manager Vladimir Baltovski and plumbing subcontractor, Dimitri Stassos. Mr Tabet and Mr Baltovski were cross-examined. Both were straightforward and knowledgeable. Mr Baltovski was loathe to accept that Parkview was responsible for any defects. 2. The Principal relied on the evidence of its sole director Richard Andary, plumber Adam Tacuri and solicitor Carlos Jaramillo. Mr Andary was cross-examined. His evidence was not entirely satisfactory. Mr Andary initially denied drafting material to be sent by the Superintendent, then said he did not recall preparing the document, then accepted that he prepared a direction to be given by the Superintendent to the Contractor. It was obvious from the contemporaneous documents that the Principal's solicitors were preparing the documents to be issued by the Superintendent at the time. 3. Whilst Mr Andary gave short and emphatic answers, I was not particularly confident that I could place much weight on those answers. Mr Andary deposed that he had "observed in each of the 209 [hotel] rooms that rubbish has not been removed from the ceiling space." Mr Andary ultimately agreed that he had not, in fact, put his head into the ceiling space for each room; "I put [my head] into a lot of them", although he could not recall how many. Mr Andary accepted that his affidavit was "not totally correct … technically … in the way it's written." 4. Overall, this project was and is likely of enormous significance to Mr Andary. This may explain the intensity and, on occasion, ferocity of his communications with the Contractor as the project neared practical completion and thereafter. Mr Andary, however, did not profess any particular expertise in construction and I have deferred to the more dispassionate views expressed by the experts and consultants. 5. Both parties submitted that the other should have called a representative of the Superintendent of the Contract, being MMD Construction Consultants Pty Ltd, as a witness. Neither party asked me to draw an Jones v Dunkel inference and I have not done so. 6. A large number of expert witnesses gave evidence in conclave. It was not ultimately necessary to resolve points of difference between most of them. Of the building consultants, Stephen Iskowicz and Steven Abbott, I preferred the evidence of Mr Iskowicz, who appeared sensible and knowledgeable. Mr Abbott tended to add wide-ranging, negative remarks, for example, that an alleged defect was a common problem throughout the development, or that he had been told there were 180 instances of the defects. Mr Abbott was given a defects list and assumed that the particular defect existed in the number of instances instructed; Mr Abbott found one defect and assumed that the other instances were the same. Further, whilst Mr Abbott gave evidence in very emphatic terms, in some cases he may have spoken beyond the areas of his expertise. 7. Mr Abbott also gave evidence on the cost of rectification in a conclave with quantity surveyor David Madden. Mr Abbott was unqualified as a quantity surveyor but had worked in the building industry generally as a contract manager. Ultimately, these experts largely agreed on the items which it was necessary to decide.

PREPARATIONS FOR DEVELOPMENT 1. From 2012 to 2014, the Principal prepared for the development of the site: finalising drawings, assembling consultants and reports, seeking development approval and obtaining finance. The drawings were prepared by the Principal's architect, Skematics. 2. The Principal retained a project manager, who later became the Superintendent of the Contract, being MMD Construction Consultants. The principal of MMD Construction Consultants was Mr Andary's cousin, Michael Dakhoul. This later gave rise to controversy, where the Contractor complained – with some foundation – that the Superintendent was simply conveying the Principal's dictates. 3. The Principal retained a fire engineer, AE&D Fire, to carry out a fire safety analysis and assessment of the proposed development. The fire engineer circulated its first report in February 2014, and a series of revisions in the ensuing years to address various issues raised by Fire & Rescue NSW. 4. In 2014, the Contractor engaged in a tender process. As part of that process, the Contractor assisted the Principal by engaging in "value engineering". This involved an audit of plans and specifications in conjunction with the client to see whether changes could be made to save money without taking away the design intent or compromising any compliance issues. The product of this exercise was a "Value Engineering Register" produced by the Contractor, which later became part of the Contract. 5. In June 2015, the City of Botany Bay issued the necessary approval, being a modification of an earlier development consent. The Principal Certifying Authority (PCA) was the Council.

THE CONTRACT 1. On 4 September 2015, the Principal and the Contractor executed a contract (the Contract) being, essentially, Australian Standard AS4902-2000 General conditions of contract for design and construct as amended by special conditions. 2. Various reports and specifications also formed part of the Contract, including the development approval, the "Value Engineering Register" and the Principal's Project Requirements Document Register. The Principal's Project Requirements Document Register listed tender documents and "CC/Contract Documents" including architectural specifications and drawings prepared by Skematics, structural engineering specifications and drawings prepared by AECOM Pty Ltd, electrical, mechanical, hydraulic and fire drawings prepared by Abacus Engineering Pty Ltd, stormwater and civil drawings prepared by S&G Consultants Pty Ltd and a landscape design prepared by Isthmus Pty Ltd. 3. The order of precedence of the Contract Documents was set out in Schedule 1, which was to be used to resolve any ambiguity or inconsistency between the Contract Documents: clause 6.2, Formal Instrument of Agreement; preamble, Special Conditions of Contract. Relevantly, special conditions had precedence over general conditions, which had precedence over the development approval, which had precedence over the Value Engineering Report and so on.

Contractor's obligations 1. Under the Contract, the Contractor was obliged to carry out and complete WUC (work under the Contract) in accordance with the Contract and directions authorised by the Contract: clause 2.1. Clause 29.1 obliged the Contractor to "use suitable new materials and proper and tradesmanlike workmanship". 2. The Contractor warranted that it was suitably qualified and experienced and would exercise due skill, care and diligence in carrying out and completing WUC: clause 2.2(a). The Contractor warranted that it would carry out and complete WUC in accordance with the design documents so that the Works, when completed, were fit for their stated purpose and complied with the requirements of the Contract: clause 2.2(a)(iv). 3. Although the plans and drawings had been prepared before the Contractor was retained, the Contractor warranted that it had examined and checked the design of the Works, the drawings and documents provided by the Principal and the preliminary design and considered these suitable for the Works: clause 2.2(a)(ii.a). 4. The Contractor agreed to carry out and complete the Contractor's design obligations to accord with the Principal's project requirements: clause 2.2(a)(iii). The Principal's project requirements were described in the Principal's Project Requirements Document Register. The Contractor's design obligations comprised all tasks necessary to design and specify the Works required by the Contract, including preparation of the design documents (the drawings, specifications and other information required by the Contract and created (including those to be created by the Contractor) for the construction of the Works) and developing the preliminary design in the Principal Project Requirements Document Register. 5. Special Condition 52 provided, "The Contractor must at its own cost ensure that the WUC is executed in such a way as not to breach the Development Approval." "Development Approval" meant any applicable development approvals granted by the relevant Authority in regards to the Works: clause 1. As a special condition, this obligation prevailed over the general conditions in the event of ambiguity or inconsistency.

Superintendent 1. The Superintendent was conferred with an extensive role and powers under the Contract, including approving variations and extensions of time, giving directions to the Contractor, approving progress claims and – critically in this case – certifying practical completion and liquidated damages. 2. Directions were to be given orally and confirmed in writing: clause 20. The Superintendent could direct the Contractor to rectify defective work on becoming aware that work done by the Contractor did not comply with the Contract and at any time before the expiry of the last defects liability period: clause 29.3. 3. Clause 20 provided: (emphasis added) The Principal shall ensure that at all times there is a Superintendent, and that the Superintendent fulfils all aspects of the role and functions reasonably and in good faith. 1. The Contractor contends that the Principal failed to ensure that the Superintendent fulfilled its role reasonably, to which I will return at [243].

Practical completion 1. Clause 34 of the Contract provided: 34 Time and progress 34.1 Progress The Contractor shall ensure that WUC reaches practical completion by the date for practical completion. 1. The parties agreed that, taking into account extensions of time (EOT), the date for practical completion was 4 September 2017. As amended by the Special Conditions of Contract, practical completion was defined as: Practical completion is that stage in the carrying out and completion of WUC when: a) the Works are complete except for minor defects: (i) which do not prevent the Works from being reasonably capable of being used for their stated purpose; (ii) which the Superintendent determines the Contractor has reasonable grounds for not promptly rectifying; and (iii) the rectification of which will not prejudice the convenient use of the Works; (b) those tests which are required by the Contract to be carried out and passed before the Works reach practical completion have been carried out and passed; and (c) documents and other information required under the Contract which, in the Superintendent's opinion, are essential for the use, operation and maintenance of the Works have been supplied; (d) the Contractor has done all things that it is required to do under the Contract to enable the Principal to obtain a certificate of occupation from the applicable Authority; (e) the testing and commissioning of all electrical plant and equipment, electronic devices, light fittings and the like have been completed; (f) the Contractor has provided to the Superintendent one pdf electronic copy and two hard copies of the completion folders including all certificates, as-built drawings, manuals, warranties, keys and the like to the satisfaction of the Superintendent. 1. A central issue in this case is whether practical completion was reached and, if so, when. This largely turns on whether the Superintendent gave a certificate of practical completion in accordance with the Contract. In this regard, Clause 34.6 provided: 34.6 Practical completion The Contractor shall give the Superintendent at least 14 days written notice of the date upon which the Contractor anticipates that practical completion will be reached. When the Contractor is of the opinion that practical completion has been reached, the Contractor shall in writing request the Superintendent to issue a certificate of practical completion. Within 14 days after receiving the request, the Superintendent shall give the Contractor and the Principal either a certificate of practical completion evidencing the date of practical completion or written reasons for not doing so. … 1. The primacy of this obligation is highlighted by clause 39.7(b), which specified that a substantial breach of the Contract by the Principal – entitling the Contractor to issue a notice to show cause – included "the Superintendent not giving a certificate of practical completion or reasons as referred to in subclause 34.6". 2. To facilitate the achievement of practical completion, clause 35 provided: Clause 35 Defects liability The following method and procedures for rectifying defective work immediately prior to practical completion shall be incorporated by the Contractor into the master programme so as not to affect the date for practical completion: (a) within 14 working days of the Contractor submitting to the Superintendent a notice of final inspection prior to practical completion for Building B and then for Building A, the Superintendent will inspect the Works and provide to the Contractor a list of defects; (b) the Contractor will be given a reasonable period after receipt of the defects list from the Superintendent to rectify all defects …; (c) the Superintendent shall reinspect the Works when advised by the Contractor that the listed defects have been rectified and subsequent periods of 2 weeks and one weeks will be given if further defect rectification is required; … 1. Clause 35 also dealt with the rectification of defects after the date of practical completion, to which I will return at [256].

Disputes 1. As soon as practicable after a party became aware of any claim in connection with the subject matter of the Contract, other than a claim for payment, the party was obliged to give the other party and the Superintendent written notice of the general basis and quantum of the claim or a notice of dispute under clause 42.1: clause 41.1.

UNPAID GST 1. Pursuant to clause 5.1 of the Contract, the Contractor was obliged to provide security in the form of cash retention or an unconditional bank guarantee for 5% of the contract sum: clause 5.1, Item 14, Annexure Part A. The contract sum was $37.6 million plus GST: clause 1, Special Conditions of Contract; clause 48.2. 2. Security was initially provided in the form of cash retention, with the Principal withholding 5% of the contract sum, or $1.88 million, from progress claims. 3. The Contractor was entitled to change the form of security: clause 5.3. In November 2016, the Contractor provided two bank guarantees to the Principal, each for $940,000 and together $1.88 million. On 13 December 2016, the Contractor issued a tax invoice to the Principal for "Retention Release in lieu of Bank Guarantee" in the sum of $1.88 million plus GST, totalling $2.068 million. 4. On 22 December 2016, the Contractor received $1.88 million. The GST was not paid. Mr Tabet discussed the matter with Mr Andary, who said "the GST is not due until I have to release the bank guarantees". Mr Andary maintains that the Principal does not have to pay any GST until such time as all the bank guarantees are returned. 5. The Contractor submitted that, where the Principal had retained "security" from progress payments to the amount of 5% of the "contract sum" plus GST, the Principal was required to pay the GST on the retention moneys which it was no longer entitled to retain. The Contractor relied on clause 48.7, which provides that, where a party is required under the Contract to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed is the amount of the expense or outgoing and, if the payment or reimbursement was subject to GST, an amount equal to that GST: clause 48.7. The Principal maintained that the Contractor was only entitled to be paid this sum once the Contractor was entitled to make a final payment claim. 6. I do not consider that clause 48.7 applies to security, which is neither an expense nor outgoing. Rather, the obligation to pay GST on retention amounts is governed by legislation. Section 99-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) provides: GST does not apply to the taking of a deposit as security for the performance of an obligation (unless the deposit is forfeited or is applied as consideration). GST is not attributable prior to forfeiture. 1. That is, GST was not payable on the cash retention when provided by the Contractor. GST became payable when the retention amounts were released to the builder, in the same way as it applies to progress payments under the building contract: Goods and Services Tax Ruling GSTR 2000/29, Goods and services tax: attributing GST payable, input tax credits and adjustments and particular attribution rules made under section 29-25, (11 December 2013) at [172]-[189]. 2. Nor, as I understand it, was the Contractor obliged to pay GST on the bank guarantee. Guarantees are 'financial supplies' and treated as input taxed supplies on which no GST is payable: section 40-5, A New Tax System (Goods and Services Tax) Act 1999 (Cth); sub-regulation 40-5.09(3), A New Tax System (Goods and Services Tax) Regulations 2019 (Cth). Similarly, should the Principal call on a guarantee, any money paid by the surety is not subject to GST as is not a taxable supply for consideration to which GST applies: section 9-10(4), A New Tax System (Goods and Services Tax) Act 1999 (Cth); Goods and Services Tax Ruing GSTR 2006/1, Goods and services tax: guarantees and indemnities, (11 December 2013) at [74]-[78]. 3. As such, once the cash retention was released to the Contractor, GST applied to the cash retention in the same way as other progress payments made under the Contract. The Principal is not entitled to retain GST on the cash retention until it returns the bank guarantee. The Contractor is entitled to the damages it seeks in respect of unpaid GST, being $188,000. Interest is to be paid after the date of default in payment at the prescribed rate provided in section 101(7) of the Civil Procedure Act 2005 (NSW): clause 37.5, Item 35, Annexure Part A.

PROBLEMS POSED FOR PRACTICAL COMPLETION 1. Work began on 1 March 2016. Before considering the evidence in respect of practical completion, it is necessary to describe three substantive problems which were said, at the time, to stand in its way. In addition, a further difficulty was posed by a last-minute variation and EOT.

Rooftop terrace: Building A 1. Building A is a 12 storey building. The ground floor and levels 1 to 6 is a hotel. Levels 7 to 12 are office space and associated facilities for commercial tenancies. The plans for Building A included stairs from Level 12 to a sliding glass roof hatch, giving access to the rooftop. According to the roof plan, the rooftop was to contain various infrastructure, including water tanks, hot water and outlets. 2. Whilst the original development consent is not in evidence, I infer that it did not permit those occupying the building to use the rooftop area. I say this as, some years later in 2020, the Principal lodged an application to modify the development consent by "the addition of roof top deck area". The attached submission stated: "it is the applicant's view that making provision for the roof terrace within the development is an important ancillary use that would complement the approved uses under DA#12/087/07." 3. As earlier noted, the Principal had retained AE&D Fire to address fire safety in respect of the development. In May 2016, the fire engineer proposed Alternative Solution 11 (AS 11) to enable the safe egress from the "rooftop plant area" on Building A, together with Alternative Solution 12 (AS 12) to enable the safe egress from the "rooftop entertainment area". Fire & Rescue NSW sought further details on these proposed solutions. 4. In March 2017, AE&D Fire provided Revision 14 of its fire engineering report, from which it is clear that the Principal then intended to delineate the rooftop of Building A into an area for plant (accessible by two fire stairs) and two public terraces – on the eastern and western side of the building – described in the report as "rooftop entertainment area". According to diagrams included in the fire engineering report, access to the "Public Terrace" was via "Public Stairs". 5. The Principal contended that the diagram was submitted on the instructions of the Contractor, pointing to a table towards the end of the fire engineering report which listed stakeholders, in which Phil Agius of the Contractor as referred to as the "Client". I note, however, that the title page for the fire engineering report stated that it was prepared for the Principal. The opening words of the report stated that AE&D Fire "have been commissioned by Futuroscop". Whilst Mr Baltovski accepted that Mr Agius was the person within the Contractor who was instructing on this issue, Mr Baltovski did not join the Contractor until six months after the report: see [94]. Who commissioned the diagram is unclear. 6. In any event, in Revision 14, the fire engineer explained that AS 11 addressed the problem that the fire stairs terminated at Level 12 and rooftop access and egress to the rooftop plant area was via a steel ladder and a manually operated access hatch. The hatch needed to remain closed in order to maintain stair pressurisation. AS 12 was designed to address the problem that occupants of the rooftop entertainment area did not have direct access to fire stairs but needed to pass down a non-fire isolated stair to reach Level 12, from where they could access fire stairs. 7. In March 2017, the Contractor retained a fire engineer, Olsson Fire & Risk Pty Ltd, to undertake a peer review of the fire engineering report. Olsson Fire & Risk generally supported AS 11 and AS 12, suggesting that a restriction be placed on the maximum number of occupants on the roof, say, 50 people. The Contractor must have then been aware that the Principal wished to use the rooftop area in this manner. 8. In June 2017, AE&D Fire produced a further report, Revision 15, which was submitted to the Council in support of a Stage 6 Construction Certificate, presumably to effect the work referred to in the report. On 4 August 2017, the Council issued a Stage 6 Construction Certificate in respect of the fire engineering report prepared by AE&D Fire, Revision 15. The roof plan the subject of Stage 6 Construction Certificate was further revised. The Contractor constructed the roof area in accordance with Revision 10. I will return to the Contractor's obligations in respect of the rooftop terrace at [186].

Carpark crash rails: Building B 1. Building B is a 5-storey carpark. The 2014 drawings for the carpark included crash rails on the perimeter of the carpark, together with a façade as follows: 1. The Façade Legend for "CRL-06" was "Safe Erection P/L or similar carpark crash rails. Rhinostop, fixing to manufacturer's details. Refer to plans and specifications." The Façade Legend for "FCD-01" stated "Cantilevered balustrade with perforated & corrugated metal panels" fixed to a galvanised frame. That is, the plans proposed a crash rail and a separate façade structure, with the façade extending to cover the slab edge. 2. In the Value Engineering Register, the Contractor proposed an integrated crash rail system with composite cladding, that is, one system to act as a crash rail and façade structure. As I read the drawing, corrugated metal panels would be attached to the crash rail. Revisions were made to the carpark drawings in October and November 2015. On 10 December 2015, the Contractor sent an email to the architect confirming the different types of crash rails proposed for Building B. 3. Revised carpark plans were issued on 15 January 2016 and 22 April 2016. The Façade Legend for "FCD-01" became: (emphasis added) SAFE DIRECTION P/L RHINO-STOP 'ELITE' SYSTEM OR SIMILAR CAR PARK CRASH RAILS, COMBINED WITH CANTILEVERED BALUSTRADE WITH PERFORATED & CORRUGATED METAL PANELS FIXED TO 150x50 G AL. M.S. R.H.S FRAME AT 2500mm NOM. CRS. (TBC).1 500mm NOM. 0/A HEIGHT 1100mm A.F.L. REFER TO SPECIFICATION & STRUCTURAL ENG. DETAILS 1. The Façade Section detail, now "29/AT11" had also changed as follows: 1. That is, the crash rail and façade were now integrated into a single structure, as had been suggested by the Contractor during the "value engineering" process. Based on these drawings, the Contractor awarded the contract for the work. The sub-contractor installed RhinoStop with hand rail and anti-climb mesh, RhinoStop sky edge with hand rail and anti-climb mesh and RhinoStop Elite in accordance with the manufacturer's recommendations and the Building Code of Australia. The crash rails are shown here: 1. On 23 May 2017, the Superintendent advised the Contractor that the crash rails had not been installed correctly and were not the specified design as per the architectural drawings. The works would not be accepted until rectified. The Contractor disagreed. The Contractor advised that, in December 2015, the architect was consulted and issued floor plans indicating the proposed crash rails and façade treatments. The architect provided a hand sketch identifying a mesh screen fixed to posts as a suggestion. The Contractor had installed a similar looking product, together with Armco railing for crash resistance, a hand rail along the ramps and anti-climb mesh similar to the drawing provided by the architect. The Contractor referred to the updated Façade Legend for "FCD-01" and advised "Parkview have provided a compliant integrated crash rail and façade screen system from Rhino (in accordance with value engineering), and in the colour required to meet DA drawings. The PCA has inspected these works and [is] satisfied with the construction." The Contractor would be painting the slab edges in green. "The end result will be as per DA colours and in accordance with our D&C obligations." 2. The architect was most displeased, suggesting that what had been installed was "totally incorrect and wrong" and never approved by him. The intent in the contract documentation detail was to produce single coloured bands along the façade, with perimeter bands to cover the slab edges. Painting the slab edges green was a "cheap fix". 3. On 28 May 2017, the Superintendent instructed the Contractor to rectify this matter as soon as possible, where the Superintendent had not approved the use of a similar product, "It is not for the Contractor to decide which product is similar." On 28 June 2017, the Contractor sent a detailed email to the Superintendent, outlining the history of the contract drawings in respect of the crash rails, including the revisions of the Façade Legend for FCD-01. The Contractor considered that it was obliged to install one structure which acted as a crash rail and façade, and had done so within the description of FCD-01. The Contractor had painted the external slab edges to provide a finish in line with the "DA documentation". 4. The Superintendent did not agree, where the section drawings showed the perforated and corrugated screen covering the slab edge, and the type of crash rail used. The Contractor was asked to rectify the defect. This debate continued (to this day). The architect complained that the crash rail / balustrade detail installed was incorrect, of "lesser extent, value & detail than contract documents". I will return to whether the Principal is entitled to the cost of rectifying this alleged defect at [287].

Concrete finishes: Building B 1. In January 2014, the Principal's architect, Skematics, and structural engineer, AECOM, prepared specifications in respect of concrete. Neither document was in evidence (or, at least, not the correct revision) but the requirements were recounted by concrete experts, David Mahaffey and Dr James Aldred. 2. In short, the columns in the carpark were to comply with a "Class 2" finish in accordance with Australian Standard AS3610.1, having "uniform quality and texture over large areas". 3. The underside of the carpark slabs (the soffit) were to comply with a less onerous "Class 3" finish, being "good visual quality when viewed as a whole". 4. Complaints were made about concrete finishes when Building B was nearing practical completion. On 15 June 2017, the Superintendent wrote to the Contractor following a site visit by Mr Andary, who had "provided some alarming points which require your immediate action." Amongst the issues identified, numerous leaks throughout the carpark were said to be causing notable discolouration to the carpark soffits, "When will this issue be rectified and confirmed as a class 3 finish." The Contractor's comments were sought by close of business. On 1 August 2017, the architect wrote to the Superintendent following an inspection of the concrete works in Building B. The architect considered that the concrete finishes failed to meet the specification for class 2 and class 3, recommending inspection by a structural engineer or specialist in concrete works. 5. At trial, Mr Mahaffey and Dr Aldred agreed that the finishes met the required standard.

Second pump room 1. Turning to the late variation, under the Contract, the Contractor was required to construct and commission one pump room. In June 2016, the engineer who was designing the fire hydrant system for the carpark suggested that a pump also be installed for Building B, particularly if the building was to increase in height by two levels. If a pump was installed, then a compliant pump room would also be needed. 2. The Contractor issued a variation to supply and install a hydrant pump set to Building B "to allow sufficient water flow rates for futureproofing of additional carpark levels proposed." The variation set out two options, being provision of a full hydrant pump room or provision of the hydrant pump only. On 31 August 2016, the Principal approved the second option less a few items, "Approved with NO further variation to this item." 3. The water pressure and flow relied upon to identify the need for a pump for Building B was based on simulated tests conducted by Sydney Water, where the water main had not then been constructed and permanent water had yet to be connected. Once water was connected, the need for a pump – and a pump room – became clear. After Sydney Water tested water pressure to Building B for hydrant services on 14 June 2017, Mr Tabet met with the certifier and Mr Andary concerning a pump room in order for the Principal to obtain a 'sign off' from the certifier. The Contractor was instructed to price construction of a pump room with the details requested by the certifier, including lodgment of a Stage 7 Construction Certificate. 4. On 26 June 2017, the Contractor issued a variation claim in relation to the construction and commission of the second pump room. This was rejected by the Superintendent on the basis that it was not necessary, albeit later accepted. Mr Tabet said he was becoming concerned about how the Superintendent was doing its job.

NEARING PRACTICAL COMPLETION 1. As the construction manager responsible for the project, Mr Tabet attended the site twice a week, together with site meetings and inspections as needed. From early August 2017, Mr Tabet observed people engaged by Travelodge installing equipment, such as computer systems and furniture. Travelodge commenced its fit out. 2. It will be recalled that, under clause 35 of the Contract, the Contractor was to submit a notice of final inspection to the Superintendent prior to practical completion, so as not to affect the date for completion: see clause 35 at [30]. The minutes of a site meeting held on 7 August 2017 record that the Contractor had submitted their status of defects rectification works for levels 1 to 6 of Building A. The Superintendent had attended the site for a defects inspection of the commercial levels 7 to 11 of Building A on 14 July 2017, but the levels were not ready to be inspected. Whilst the Contractor advised that the carpark was also ready for a defects inspection, the Superintendent was "not confident it is"; the Principal had retained a consultant to inspect the concrete and a report was expected shortly. The fact that the Contractor and the Superintendent were engaged in the process specified by clause 35 suggests that construction was now nearing completion. 3. On 8 August 2017, the Principal's concrete consultant, John Worthington, issued a preliminary report in respect of the concrete finish on the carpark, following an inspection accompanied by the Superintendent and the Contractor's project engineer. Mr Worthington considered that the finishes were not acceptable as they did not meet the relevant Australian Standards. The Contractor's engineer advised that it was a work in progress and agreed that further works were required. Where 'hand over' of the project was to occur on 1 September 2017, Mr Worthington recommended that the Contractor provide a schedule for the completion of the works, following which he would inspect the completed works and provide a second report. 4. Perhaps somewhat ambitiously, on 9 August 2017, the Contractor gave notice pursuant to clause 34.6 of the Contract that it anticipated achieving practical completion by 28 August 2017. The pump room for the fire hydrant in Building B had then yet to be designed, this being the late variation earlier described. The Superintendent pressed the Contractor to identify where the pump room would be located, suggesting that the obligation to design a pump room compliant with Australian Standards and the Building Code of Australia fell on the Contractor. The Contractor disagreed, "Our scope included what was on the tender drawings which form part of the Contract. … We provided you a variation many months ago for approval in which you partially approved … this remains a variation under the Contract. We will be submitting a revised variation for your approval." 5. A report prepared by the Contractor for a Project Control Group meeting on 14 August 2017 advised that documentation was currently being sourced from all trades to support an Occupation Certificate. 'As built' documentation was in the final stages of submission. Handover manuals were being prepared for practical completion. 'Red flags' then noted included a delay in completion due to an upgrade in the water main, said to be the responsibility of the Principal. Further, the Contractor had informed the Principal that a hydrant pump was required to Building B, as indicated by the results from the simulated flow and pressure test. A proposed pump room was currently being modified, "however these costs will be chargeable to the client." Approval of a construction certificate and building certificate associated with the new pump room was awaited. The PCA had commenced regular inspections of the hotel and commercial floors, with rectification lists being provided on a per visit basis, "minimal issues have been raised." 6. On 21 August 2017, the parties held a site meeting. The Contractor was then rectifying the ceilings on levels 10 to 12 of Building A. The Contractor was "to proceed with providing a compliant pump room in Building B as per [the Superintendent's] instruction". The Contractor was to begin works once the construction certificate had been obtained. The Contractor confirmed that it would require up to two weeks to finalise provisions for the pump room after receiving the construction certificate. Hydrant testing had been booked, although the PCA advised "he will not notify Fire Brigade if the site is not accessible". 7. As for the carpark, the Superintendent noted that the carpark "will require extensive cleaning and works to rectify concrete finish. [The Contractor] to attend to rectification ASAP." The Contractor was to review the report obtained from Mr Worthington and complete rectification work accordingly. The parties remained at odds in respect of the crash barriers in the carpark. As for the construction program, the Contractor confirmed that the corridors and commercial levels 7 to 12 of Building A were ready for defects inspection to be conducted by the Superintendent. Building B was also ready for defects inspection. 8. On 22 August 2017, the Council issued a Stage 7 Construction Certificate for the construction of an additional fire hydrant pump room on the ground floor of Building B. The Contractor submitted a variation to the Superintendent in respect of installation of the fire hydrant pump and builder's works to Building B, seeking an extension of time of two weeks. The Contractor proceeded to construct the pump room in accordance with the variation. 9. On 28 August 2017, a site meeting was held. A fire engineer inspection was scheduled for the next day, with commissioning of the pump room in Building B to commence on 30 August 2017. The Superintendent conducted a site inspection and sought advice from the Contractor pursuant to clause 34.6 of the Contract as to when practical completion would be reached, "In light of today's inspection, it is evident that you are behind the current program." 10. On 29 August 2017, the Contractor reminded the Superintendent that a Notice of Delay had been issued by the Contractor in respect of the pump room, with 12 days required to complete this item from approval of the construction certificate. The Contractor intended to achieve practical completion on or before 5 September 2017. Presumably, this was intended to be a notice under clause 34.6 of the Contract, as had been sought by the Superintendent. 11. On 31 August 2017, Mr Andary expressed concern to the Contractor that outstanding works and the state of the site might delay practical completion, where the PCA was concerned that the fire brigade "may turn up to the site but refuse inspection". On 1 September 2017, the PCA submitted a Request for a Final Fire Safety Report to Fire & Rescue NSW. The Contractor responded to Mr Andary, advising that the PCA was not concerned with the construction works and had submitted the necessary application, "We have done everything we can to expedite the final testing and commission so the PCA can notify Fire & Rescue NSW since the permanent water issue was resolved." On 2 September 2017, Mr Andary replied, advising that he had insisted that the PCA book the fire brigade irrespective of the condition of the site, but the PCA had "clearly stated that should the fire brigade choose to come to site and see it in its unfinished state they may choose not to inspect hence delaying [practical completion]". Mr Andary was "very concerned about the lack of trades and more so the lack of urgency to finish for Monday", pointing to various parts of the works which remained incomplete and attaching photographs. A "defective external driveway" had still not been rectified. 12. Mr Tabet recalls that the certifier was undertaking inspections in the preceding weeks in order to determine if the works were at a point when application to Fire & Rescue NSW could be made for them to inspect the building. On about 4 September 2017, the certifier told Mr Tabet that he was confident that the fire brigade could be called for an inspection. At a site meeting on 4 September 2017, the Contractor confirmed that the pump room had been built, with signage to be installed. Landscaping would be completed by 5 September 2017. The new anticipated practical completion date was 8 September 2017. 13. On 6 September 2017, the Superintendent informed the Contractor of points of concern noted by Wilson Parking that day, including that signage, lighting and painting and line marking had not been done. The Contractor updated the Principal and the Superintendent that final commissioning of "Skidata" would be completed by 8 September 2017. (Skidata are the machines used to access and pay for parking.) 14. On the evening of 5 September 2017, the Superintendent sent the Contractor and the Principal a Notice of Assessment of Practical Completion pursuant to clause 34.6 of the Contract, following a site inspection on 4 September 2017. I take this to be "written reasons" for not giving a certificate of practical completion as requested by the Contractor: clause 34.6 ("Within 14 days after receiving the request [for a certificate of practical completion], the Superintendent shall give the Contractor and the Principal either a certificate … or written reasons for not doing so.") The Superintendent advised that practical completion had not been achieved on 4 September 2017 and listed ten items "which do not constitute the development being Practically Complete" being: 1. Ponding at the Eastern and Southern Driveways. 2. External Façade (Painting/Cladding) not complete. 3. Driveway asphalt/stencilling not complete. 4. Major water leaks within the kitchen and lobby male bathroom. 5. Skidata commissioning. 6. Security Cameras installation. 7. Item "f" within appendix 1. 8. Internal Works within Hotel Lobby. 9. Landscaping Works. 10. Wheel stops which do not prevent collisions with barriers or other vehicles. Appendix 1 to the letter set out the definition of practical completion in the Contract, accompanied by 15 photographs taken in Building A and Building B in respect of the items listed in the letter. 1. On 6 September 2017, the Contractor advised the Superintendent that practical completion would be achieved by 8 September 2017. Mr Tabet inspected the project shortly before 8 September 2017 and observed that the works were complete other than minor issues that needed to be addressed, such as minor cleaning and painting. He formed the view that these issues were minor defects or omissions and did not prevent practical completion from being reached. The works at the carpark had been completed other than some cleaning. The crash barriers, wheel stops and louvres had been installed, the lines had been painted for the carpark spaces and the bathroom had been painted. Landscaping had yet to be mulched. Wilson Parking's fit out had yet to be completed. Wilson Parking had an issue with its payment system that was being installed at the carpark, although this did not form part of the Contractor's scope of works. (Mr Andary maintains that the machines were part of the Contractor's works under contract.) Mr Tabet observed that people engaged by Wilson Parking appeared to be working on the wireless operation of the boom gate, which he understood was the issue with the payment system. Mr Tabet determined that the Contractor should proceed with obtaining certification from the Superintendent that practical completion had been achieved. 2. On 7 September 2017, Fire & Rescue NSW inspected the project. On 11 September 2017, Fire & Rescue NSW sent a letter to the certifier, advising that it had not been provided with the fire engineer's most recent report. Fire & Rescue NSW had the Revision 13 report issued in February 2017, which is not in evidence. Fire & Rescue NSW recommended that the occupation certificate for the building not be issued until it was supplied with the report. Further, "The access and egress provisions of the rooftop of the commercial part of the building are not suitable for members of the general public. Access to the rooftop should be restricted for maintenance purposes only." 3. The obvious first step to resolve Fire & Rescue NSW's concerns was to supply AE&D Fires most recent report, Revision 15, together with the peer review undertaken by Olssen Fire & Risk. Presumably, AS 11 and AS 12 had 'moved on' since the Revision 13 report considered by Fire & Rescue NSW. It would appear, however, that neither the Contractor nor the Principal wished to take this step for fear of thereby accepting responsibility for this part of the works. 4. On 11 September 2017, the certifier advised the Contractor of the matters which needed to be attended to following Fire & Rescue NSW's report, in particular: Certification Item 2 - a statutory declaration from the builder stating that the locks to the rooftop access panels have been removed and are now unable to be locked. 1. The Contractor promptly provided a statutory declaration, together with photos, confirming that the access hatches to Building B rooftop were no longer lockable, "locks have been removed/cut entirely". As I understand it, this meant that no one would be trapped on the roof in the event of a fire. 2. Mr Baltovski said that all items in the letter from Fire & Rescue NSW that were the responsibility of the Contractor had been completed. Mr Baltovski was of the view that the Contractor had done all it was required to do in order for the Principal to obtain a final occupation certificate for the roof terrace; the remaining items that were incomplete were the responsibility of the Principal. 3. On 11 September 2017, the architect issued a report following a site inspection on 4 September 2017, listing various items which required attention, including a number of concerns with "stairs to private roof space". The Superintendent also advised the Contractor that Wilson Parking had inspected the site and raised issues regarding carpark safety "which are worrying at this stage of the project … They will NOT take possession of the carpark due to these issues." This was said to be a matter of extreme urgency. The Contractor was to action these items as soon as a list of issues was provided by Wilson Parking.

Travelodge opens 1. On 12 September 2017, the Council issued an Interim Occupation Certificate "excluding public access to the roof top terrace – access for maintenance only". According to a letter from Travelodge, the hotel opened its doors. Mr Andary agreed that Travelodge commenced operations that day. 2. Also on 12 September 2017, the Contractor submitted a payment claim and issued As Built drawings, certificates, manuals and warranties. Some of the paperwork obtained by the Contractor's plumbing subcontractor cannot be found. Mr Stassos is the general manager of Pipeline Plumbing Services and said that, in about September 2017, he observed his supervisor undertaking flow testing of the fire hoses to the carpark. This process involved engaging a testing contractor to do the test and send the results to Pipeline Plumbing, which then prepared the certificate for the certifier. These results are needed to obtain an occupation certificate. Although Mr Stassos has been unable to find a copy of the certificate provided by the testing contractor, he is confident that the information set out in the occupation certificate in respect of the fire hose wheels came from the information provided by the testing contractor to Pipeline Plumbing and forwarded to the certifier. Mr Stassos was not required for cross-examination and I accept his evidence. 3. Mr Baltovski also started working for the Contractor on 12 September 2017 and went to the site, although at that stage he was not familiar with the contract documents. Before joining the Contractor, Mr Baltovski had worked in the construction industry as a contracts manager for several years. On observing the construction work, Mr Baltovski understood that the work was complete save for a few minor defects such as paint touch ups. The Travelodge hotel was operating. The construction of the commercial spaces on levels 7 to 12 was, as he understood it, complete save for minor defects. Mr Baltovski also inspected the carpark: all crash barriers, louvres and wheel stops had been installed and the lines for the car spaces had been marked. The bathroom was painted. The landscaping had been mulched. A final clean was required. The carpark operator was finalising its fit out, including installing and commissioning pay machines. 4. From what he observed and based on his experience, Mr Baltovski understood that the works were complete save for a few minor defects. Thereafter, it became Mr Baltovski's job, as part of the Contractor's client services team, to manage the post-practical completion defects management process. Mr Baltovski agreed that he has been sending people out to the site to undertake work from time to time to rectify suggested defects ever since. 5. On 13 September 2017, the architect issued a further report based on a site inspection on 8 September 2017. The architect identified problems in respect of the driveway, façade blades, driveway line marking, sliding glass doors, ground floor hotel walls, the hotel lobby ceiling, restaurant dining room, ground floor aluminium screens and a range of other matters. On 15 September 2017, the Superintendent asked the Contractor to urgently apply the approved finish to the carpark entry. 6. On 18 September 2017, Travelodge announced that the hotel had officially opened for business "this past week". The hotel had 209 rooms and offered all-day dining and a late night bar, together with an 800-bay carpark. According to an email from the Contractor to the PCA, copied to the Superintendent and the Principal, the PCA "advised that no further [occupation certificate] will be issued … the interim [occupation certificate] … should be treated as FINAL." The Contractor sought confirmation of this in writing.

"Conditional" notices of practical completion 1. It will also be recalled that clause 34.6 of the Contract provided that, within 14 days of receiving a request from the Contractor to issue a certificate of practical completion, "the Superintendent shall give the Contractor and the Principal either a certificate of practical completion evidencing the date of practical completion or written reasons for not doing so." Here – somewhat curiously – the Superintendent issued two "conditional" notices of practical completion to the Contractor: one for Building A and one for Building B. The proper construction of these notices and their contractual effect, if any, was the subject of extensive debate. 2. As to the first of these notices, on 20 September 2017, the Superintendent issued the Contractor with a "Notice of Practical Completion (Conditional) – Building A", which stated: (emphasis in original) Pursuant to Clause 34.6 of the … Contract the Superintendent hereby issue a Conditional Notice of Practical Completion for Building A and External Areas only. This notice is to take effect as of the 12th of September 2017. For clarity, this is not Notice of Practical Completion for Building B (conditional or otherwise). The tenant for Building B has not taken possession of Building B on the 12th of November 2017 (sic) due to major unfinished construction items and safety concerns. There are many items outstanding to achieve full completion for Building A and the external Areas. However, as the Tenants for Building A have taken occupation (excluding the roof terrace due to noncompliance by the Contractor) and the Interim Occupation Certificate has been received from Council (received 12th September 2017), this Practical Completion Notice will be issued Conditionally. This Notice of Practical Completion being finalised and serving its full purpose under Clause 34.6 (being the full project completion), is dependent, but not limited, on the conditions that the Contractor complete, rectify or otherwise fix the Works noted within Appendix A to the satisfaction of the Superintendent. 1. It is not entirely clear what the Superintendent had in mind when referring to "full completion", but in any event, the notice concluded, "The Works are to be completed by the 30th of September 2017." Appendix A listed 29 items, being: (emphasis added) 1 Clean and seal external hardstand 2 Replace rain water tank with Slim Line Tanks 3 Awning above common lobby to be finished as per design 4 Finalise cladding to the south façade of Building A 5 Finalise columns on south entry port cochre 6 Render block work around substation 7 Render wall and paint between site and Jet Pets 8 Finish roof awning on Building A West elevation 9 Install missing Louvres to west wall Building A ground floor 10 Replace all mulch with that which is fit for purpose 11 General finalization to café 12 Stairs to mezzanine café needs cleaning and light missing 13 Unisex toilet on the mezzanine level need to be cleaned 14 Complete the waterproofing in the mezzanine plant room 15 Install detail around letterboxes 16 Finish porte cochre kerb rectification 17 Finish column skirtings in lobby 18 Install floor mat on entry from courtyard to lobby 19 Seal courtyard 20 Clad courtyard parapet 21 Install missing kick plates to kitchen 22 Epoxy lift landings on commercial levels 23 Clean and finish off bathrooms on commercial levels 24 Protection to commercial lifts and plasterboard on commercial floors to remain 25 Lobby to pass acoustic reverberation test as required by Toga 26 All items highlighted by Skematics within their site visits and reports including all future issues 27 Solution to allow access to roof terrace 28 All defects highlighted by [Travelodge] during their defective inspections and all future issues 29 All defects highlighted by [the Superintendent] during their defect inspections and all future issues Items 26, 28 and 29 referred to items to be identified by Skematics, Travelodge and the Superintendent "including all future issues". 1. Mr Tabet was shown some of the photographs accompanying the notice and agreed that one of the entries to the hotel was not completed, where the final cladding had yet to be installed and an electrical cable was dangling down. However, he said these could be minor works which did not prevent the use of the building as intended, particularly where Travelodge had opened the hotel to the public as soon as the interim occupation certificate was issued. There were a number of access points to the hotel, of which this was but one, "Travelodge were very thorough in how they operated and they wouldn't have opened to the public if they … deemed it to be unsafe to the public." 2. Also on 20 September 2017, the Superintendent provided the Contractor with a carpark defect report, noting that Wilson Parking had advised that it could not operate the carpark in its current state. The Contractor was requested to note that "liquidated damages will continue as [practical completion] for this building has not yet been issued." 3. Also on 20 September 2017, the financier's quantity surveyor recommended payment of the Contractor's progress claim of 12 September 2017 save for some $3,000 (being provisional sum adjustments for section 73 works and signage). Whilst the quantity surveyor understood that practical completion had not been reached due to a number of defects to Building A and Building B, "We understand these defects to be minor and once completed by the Contractor, practical completion to both Buildings A and B will be issued by yourselves [the Superintendent] and a final occupation certificate will also be issued." On 22 September 2017, the Superintendent recommended payment accordingly.

Wilson Parking opens 1. Wilson Parking commenced operations on 25 September 2017. The Contractor also wrote to the Superintendent, confirming that the PCA had advised, "NO further certification will be issued and that the Interim Certificate provided is to be treated as final certification for the project." The Superintendent was asked to discuss the matter with the PCA and advise "how this is to be closed out for all stakeholders involved." 2. On 26 September 2017, the Superintendent provided the Contractor with the architect's site inspection report, conducted on 15 September 2017. The Superintendent noted a "number of worrying issues" which required immediate action, albeit noting that some of the items may have been attended to since the date of inspection. Comments were sought on all items by close of business. 3. Later that day, the Contractor advised the Superintendent that all outstanding and rectification works for the carpark had been attended to, "We understand that the carpark is now in operation". In accordance with clause 34.6 of the Contract, the Contractor was of the opinion that practical completion had been reached for Building B and requested the Superintendent to issue a certificate of practical completion. 4. On 29 September 2017, the Superintendent sought comments from the Contractor as to how it proposed to correct two carpark defects, where the crash rails were not in accordance with approved documentation and the sofit and columns did not comply with the specified concrete finishes. 5. On 6 October 2017, the Superintendent sent a stern email to the Contractor, advising that the current rate of defect rectification was considered "unprofessionally slow and grossly unacceptable" where two labourers were on site rectifying "the enormous amount of defects" without the assistance of professional tradesmen or contractors. The Superintendent advised, "We have fire alarms still going off, there are water and FUEL leaks occurring, guests are complaining, Travelodge are complaining, the Client is complaining. You have failed to achieve the PC date, you have failed to then meet the 4th of September date and now you have again failed to meet your self imposed date of the 30th of September." The Superintendent advised that, if the remaining defects were not completed by 13 October 2017, the Principal would begin engaging contractors to complete the works at the cost of the Contractor, pursuant to clause 35 of the Contract. 6. This brings us to the second notice. On 10 October 2017, the Superintendent issued "Notice of Practical Completion (Conditional) – Building B" to the Contractor, which followed the format of the first notice. The notice was said to be given pursuant to clause 34.6 of the Contract. The notice was to take effect as of 25 September 2017. Many items were said to be outstanding to achieve "full completion", however, as the tenants had taken occupation, and an Interim Occupation Certificate had been received on 12 September 2017, the practical completion notice was issued "Conditionally". Further: The Notice of Practical Completion being finalised and serving its full purpose under Clause 34.6 (being the full project completion), is dependent, but not limited, on the conditions that the Contractor complete, rectify or otherwise fix the Works noted within Appendix A and those noted within Aconex correspondence MMD CC-GCOR-OOO579 dated 22nd September 2017 [not in evidence] to the satisfaction of the Superintendent. In addition, The Contractor is to note that the concrete finish across the whole carpark is not the class finishes as specified within the contract (refer to report within appendix B). The Contractor is to provide a report on completion, confirming that the concrete finish meets the specifications as outlined within the Contract. 1. These works were to be completed by 13 October 2017. Attached to the notice was a report by the Superintendent detailing 65 items requiring attention in the carpark, together with a list of defects and Mr Worthington's report of 8 August 2017, referred to at [73]. 2. On 11 October 2017, the Contractor replied to the Superintendent, suggesting that the Superintendent's Notices of Practical Completion dated 20 September 2017 and 9 October 2017 evidenced that practical completion had been achieved on 12 September 2017 for Building A and 25 September 2017 for Building B, presumably relying on the retrospective dates in each notice. The Superintendent's suggestion that the Contractor had failed to achieve practical completion and that liquidated damages were ongoing was said to be nonsensical, where both the hotel and the carpark had been in operation for a number of weeks. The Contractor advised that it would review and respond to the consolidated defects list in due course. 3. The Superintendent responded that the practical completion notices issued were conditional only, where the roof terrace for Building A was non-compliant and not legally accessible. Building B was not fit for purpose until certain defects were rectified and the tenant confirmed its acceptance to take over the building. The Superintendent provided a calculation of liquidated damages, being until 25 September 2017 for Building B, "When Wilson's confirmed acceptance", and continuing for Building A, but only in respect of the roof terrace. 4. On 13 October 2017, the Contractor responded to the Superintendent and the Principal, advising that there was no mechanism under the Contract for the Superintendent to issue a conditional notice of practical completion. Rather, the notices issued evidenced that the Contractor had achieved practical completion for both buildings. I will return to the meaning and effect of the "conditional" notices at [204].

Request for partial return of security 1. Clause 5.4 of the Contract provided: 5.4 Reduction and release Upon the issue of the certificate of practical completion a party's entitlement to security … shall be reduced by [50% of amount held], and the reduction shall be released and returned within 14 days to the other party. 1. On 16 October 2017, the Contractor requested return of 50% of the security, on the basis that the two "conditional" notices of practical completion comprised, in effect, a certificate of practical completion under the Contract. The first bank guarantee was not returned. 2. On 23 October 2017, the Principal, the Contractor and the Superintendent met to discuss remaining issues. A note of the meeting was circulated by the Contractor, on which the Superintendent provided its response. The parties disagreed on a number of matters: whether roof access to Building A was compliant; whether responsibility to obtain a final occupation certificate rested with the Principal; whether practical completion had been achieved; and, whether the Contractor was entitled to the return of 50% of its security. 3. Following the meeting, Mr Andary emailed the PCA requesting confirmation as to why the roof terrace was not approved as part of the interim occupation certificate and what was required to remedy this. On 24 October 2017, the PCA advised that the internal stairs providing access to the rooftop terrace were unsafe given the potential for occupants to be trapped on the rooftop. Alternate access down the maintenance ladder in the case of an emergency was not practical and was also unsafe. Fire & Rescue NSW did not consider the access to the rooftop to be suitable for members of the public. On 25 October 2017, the Superintendent provided the PCA's advice on the roof terrace to the Contractor and asked how the Contractor would rectify the issue, suggesting that financial losses were being incurred by the Principal due to the reduced value of the building and the income which would have been generated by the area, "This matter is critical as it is a clear requirement under the contract to have this area accessible by tenants." The Contractor disagreed, stating that it had done everything it was required to do to enable the Principal to obtain an occupation certificate. 4. On 26 October 2017, Mr Baltovski circulated an updated defects list, advising that the last few outstanding items would be completed the following week. Mr Baltovski said all items were completed by 1 November 2017. The Contractor had then addressed all of the defects set out in the two "conditional" certificates of practical completion for which it was responsible. 5. Wilson Parking served a notice of default on the Principal in respect of the carpark. The Superintendent forwarded the notice to the Contractor, requesting that the list of defects in the notice be rectified within 14 days. On 30 October 2017, the Contractor replied, having inspected each of the listed items, with comments and actions against each item which was the responsibility of the Contractor. The Contractor also followed up its request for release of 50% of the security, suggesting the Principal was now in breach of contract. 6. On 2 November 2017, the Superintendent advised the Contractor that, following an inspection that day, the Superintendent was not satisfied that the Contractor was rectifying defects satisfactorily. Major defects included the crash rails, concrete finishes within the carpark and "slurry, rubbish and marking which has been sealed over". The Superintendent also advised that Wilson Parking had been notified that five cars had been damaged by leaking water and calcification falling onto cars. The costs in respect of the cars would be passed on to the Contractor, "All car spaces under the expansion joints need to be barricaded off to avoid people parking there". 7. The Superintendent also provided photographs following an inspection of levels 7 to 11 of Building A, "Note that within the commercial levels defects are general across all floors." Mr Tabet was shown some of these photos, but did not agree that the photographs recorded major defects. Although some of the concrete floors on the commercial levels were uneven, this was a "base building" handed over to the commercial tenants for fit out. Any floor undulations would be corrected by a floor topping laid to suit whatever floor covering the tenants required. 8. On 3 November 2017, the Contractor advised that it did not accept the suggestion that cars were damaged by reason of any defect, absent further evidence, noting that it had not rained recently and so the joints would not have leaked. A waterproofer was inspecting the joints that day with a view to commencing rectification the following week. On 6 November 2017, the Contractor sought access to the carpark for its sub-contractor to carry out rectification works on leaking joints on level 5 of the carpark. The sub-contractor would saw cut the joints to 25mm, apply a water based epoxy membrane and sealant to complete the works. 9. The Superintendent confirmed access but noted "it is NOT only the level 5 joint which requires rectification …but it is in fact ALL levels." The Contractor did not agree, noting that "driving rain which enters the sides of the carpark (being an open carpark) and rain that comes in through the opening in the middle of the carpark is not the responsibility of Parkview." The Superintendent did not agree, stating that the Contractor was responsible for ALL of the expansion joints leaking, irrespective of where the water came from. 10. On 10 November 2017, the Contractor submitted a progress claim for $217,920 and the unpaid GST of $188,000. The Principal submitted that the issuing of a further progress claim was inconsistent with the suggestion that practical completion was achieved in either September or October 2017. If such works only related to defect rectification, then the Contractor was not entitled to claim for them. 11. The Contractor did not address this submission, which had merit. Perhaps, where the Superintendent had disclaimed that practical completion had been achieved, the Contractor took the opportunity to recoup some of the expenses being incurred in remedying defects. Ultimately, the Contractor's action in this regard does not assist greatly in determining whether practical completion had been reached, where the critical opinion on this subject under clause 34.6 of the Contract is that of the Superintendent. The Contractor's state of mind is not particularly relevant. In any event, the progress claim was assessed at nil after deducting liquidated damages of $177,767 as calculated by the Superintendent, and given the Superintendent's advice that practical completion had not been achieved due to defects and incomplete works. A further $45,000 was deducted for incomplete works associated with the roof terrace. 12. On 10 November 2017, the Superintendent provided the Contractor with photographs and videos of the carpark and expressed concern that cars were being damaged due to calcification. The Contractor was requested to provide comments as soon as possible "with this issue constantly compounding at a rapid rate". On 13 November 2017, the Contractor advised that all movement joints on level 5 of the carpark had been remedied. The photographs and videos provided by the Superintendent showed ponding on the slabs of each floor, said by the Contractor to be due to rainwater entering the open sides of the carpark or through the main void which ran the entire height of the carpark. The Contractor did not accept responsibility for the ponding. 13. While the Contractor and Superintendent had been exchanging and updating defects lists, on 15 November 2017 the Contractor provided the Superintendent with a compilation of all defects lists, which the Contractor aimed to have completed by 24 November 2017. This 'master defects list' was updated from time to time thereafter. 14. On 25 November 2017, the Superintendent forwarded a number of invoices rendered by NSW Fire Brigade for attending to false alarms at the hotel. The Contractor advised that it was working with its fire engineer, Precision Fire, to find a solution to the problem. Meanwhile, the Superintendent pressed the Contractor to pay the invoices, said to be the Contractor's responsibility. The Contractor did not agree, advising that the fire services and mechanical services on the project had been constructed and were operating in accordance with the contract documentation. 15. On 7 December 2017, following a meeting with the Council, the Superintendent reported that any solution for the roof terrace should not require a new fire engineering report, as this would mean that the proposal would need to go through Fire & Rescue NSW again. The Council was happy to review any options and advised that the solution did not need to go back to the fire brigade if the following was implemented: ● Stairs to roof top to be made compliant. This includes, width, head heights, hand rails, landing, etc. ● Enclosure of the stairs and inclusion of a door to the stairs. This will provide the new barrier for the pressurisation instead of the hatch. ● Step caused by hatch frame when exiting onto the roof terrace removed. Where the Principal had advised that "tenants are moving in within the month", the Contractor was asked to provide sketches and options for review. 1. On 8 January 2018, the Contractor was asked to advise when it would "start sealing the concrete cold joints ALL Levels", as the issue was affecting numerous bays which were still being blocked off by Wilson Parking. The Contractor advised that all joints which had previously leaked had been waterproofed and sealed. The Contractor was provided with photographs, "the leaks are clearly still there." The Contractor advised it would inspect the leaks shown in the photographs and the remainder of the carpark and rectify accordingly. 2. The Contractor also followed up its request for return of 50% of the security, "On any view, the project has reached practical completion. Parkview maintains that practical completion was achieved by no later than 4th September 2017. We do not accept that practical completion was achieved on 10th October 2017, but even if it were, the release of the 1st 50% of security is still months overdue." The Contractor advised that it would continue to carry out its obligations under the Contract by closing out defects. 3. On 10 January 2018, the Principal replied, suggesting that the conditional notices of practical completion issued by the Superintendent did not evidence the Superintendent's opinion that the works had reached practical completion at the date of each notice. Rather, the notices appeared to evidence that the Superintendent had formed the opposite opinion, namely, that practical completion had not been reached. As such, the Principal did not agree to release the security. Further, "It would appear that all parties would benefit from the Superintendent clarifying matters raised in the Conditional PC Notices. The Principal requests that the Superintendent clarify and confirm their opinion as to whether Practical Completion … had been reached for the Works … at the time the Conditional PC Notices were issued." 4. To this, the Contractor replied that it was "absurd" to suggest that practical completion had not occurred. Further, "Parkview no longer has possession and/or control of the site. The Principal has taken possession of the site and given occupation to its tenants. The tenants are operating their businesses with full use of the property and the Principal is receiving a rental income …". Further, the Contractor complained that the Principal now appeared to be performing the role of the Superintendent, contrary to clause 20 of the Contract. (As far as Mr Baltovski recalls, the Superintendent had not attended a site inspection since December 2017, although he has continued to receive emails from the Superintendent raising alleged defects based on the advice received from the Principal.) 5. On 12 January 2018, the Superintendent provided a "Notice of Project Status" advising that, at the time of issuing the "conditional" notices, "We did not hold the opinion that the works had reached Practical Completion", having regard to the Contract, site inspections and that Works and certification necessary to enable the roof area of Building A to be suitable for use as a roof deck by the public had not yet been completed. Further, some of the defects mentioned in the "conditional" notices had yet to be rectified being, most significantly, the class of finish to the concrete soffits within Building B and – due to smoke detectors in the hotel rooms being set off by bathroom steam – the hotel had multiple false alarms and associated charges from the fire brigade. The Contractor did not agree. 6. On 16 January 2018, the Superintendent gave approval to the Contractor to commence rectification of the smoke detector issue by moving the smoke detectors. I will return to the claim in respect of this alleged defect at [273]. 7. On 17 January 2018, the waterproofing contractor attended at the carpark and completed its work on leaking joints. However, the Superintendent advised, having confirmed the matter with the Principal, that "only 2 of the 5 levels have been partially rectified." The Contractor disagreed but advised it would re-inspect after the next rain event to see if any more joints were leaking. The Superintendent disagreed, providing photographs, "I am stating the obvious but the works carried are not of appropriate standard." Where the Contractor had previously provided drawings to rectify level 4 joints using a folded gutter, the Contractor was asked to rectify the defect as soon as possible. 8. The Contractor replied that the "dish drains" earlier suggested were a secondary measure in case the water could not be stopped from level 5. As the joints on level 5 had now been treated and had stopped leaking onto level 4, there was no requirement for dish drains to be installed on level 4. While the Contractor could not see any water leaks on the photographs sent by the Superintendent, the Contractor would inspect following the next rain event. Following heavy rain on 3 February 2018, the Superintendent requested the Contractor to treat deteriorated joints on level 4 of the carpark and to install dish drains for each joint on all levels. 9. On 30 January 2018, the Superintendent required the Contractor to provide a program outlining when the works in the defects list would be rectified and imposed a deadline for defect rectification by 28 February 2018. Rectification of the commercial defects was said to be increasingly urgent due to the current fit out and imminent tenant arrival. The Principal had advised that, if these dates were not met, it would undertake the rectification and back-charge the Contractor. The Contractor maintained that the master defects list which it had been circulating from time to time already captured the information sought by the Superintendent. The Contractor would not accept any back-charge from the Principal. 10. The Superintendent did not agree, requesting the Contractor to respond to the Superintendent's defects list, failing which, the Superintendent would ask the Principal if it would like to proceed to engage contractors to rectify the defects, pursuant to clause 29.3 of the Contract. The Contractor rejected the Superintendent's notice, to the extent that it was considered a defects notice under the Contract. The Contractor rejected the notion that the Principal was entitled to engage other contractors and deduct amounts from the Contractor. Rather, "Parkview has been more than reasonable. We have done everything required under the Contract, and then more." The Contractor suggested that the Superintendent was not doing its job under the Contract in managing the defects process, including by failing to inspect all defects identified by the tenants and forming its own opinion as to whether they were actually defects. 11. On 12 February 2018, the Superintendent rejected this suggestion, maintaining that it has approached its responsibilities with independence. The Superintendent considered that the Contractor was "trying to discredit our firm out of spite for not having your way in this project." The Superintendent maintained that the conditional notices of practical completion were not defined or recognised within the contract, "It is therefore void with no impact or [e]ffect under the contract. It does not default to you having obtained PC." 12. On 28 February 2018, the Superintendent made a site visit and circulated a list of remaining items for action by the Contractor. The Contractor pressed for return of 50% of its security. On 12 March 2018, the Superintendent advised the Contractor, "There seems to be ongoing defective works in water retention and slab cracking" for the carpark. The Contractor was asked to provide QA documentation for concrete pouring, pre-pour inspection signoffs, slump test results, photographs and crush test results. 13. On 17 March 2018, the Contractor pressed for return of 50% security. The Superintendent replied that this would not be done as the site still had not reached Practical Completion as "the roof terrace still remains as unusable for its intended purposes." Until this matter was rectified, the security would not be released. 14. On 21 March 2018, the Superintendent informed the Contractor that Wilson Parking had not paid the Principal any rent since moving into Building B due to ongoing defects, being the concrete finish, constant leaking on each level and ponding. A mediation was scheduled between the Principal and Wilson Parking. The Principal had advised that, unless these defects were completed within the month, the Principal would undertake the works itself and back-charge the Contractor. 15. On 26 March 2018, the Contractor maintained that its obligation to maintain the landscaping was now complete. The Principal disagreed. Mr Baltovski explained that the landscaping specifications in the Contract provided that the Contractor was responsible for the maintenance of the landscaping works for 26 weeks after completion of the landscaping works and 12 weeks for the public domain street trees. As such, the Contractor's obligation to maintain the landscaping works expired in March 2018 and its obligation to maintain the public domain street trees expired on 27 December 2017. 16. On 24 April 2018, the Contractor proposed to reseal the contract slab in specified areas on levels 2, 3 and 4 of the carpark, to be completed in one day on 26 April 2018. The Superintendent considered this a "band-aid solution" which was unacceptable. The Contractor was asked to rectify the carpark once and for all using appropriate methodology. The Contractor did not agree. 17. On 14 May 2018, the Council issued an occupation certificate for the development excluding access to the level 12 rooftop. On 18 June 2018, Mr Baltovski provided the Superintendent and the Principal with a further Fire Engineering Report (confusingly, also described as "rev 15"). The fire engineer had modified AS 11 and AS 12 to clarify access and egress to the roof of Building A to obtain a final occupation certificate. The PCA was asked to issue the report to the fire brigade for their review, "Should [Fire & Rescue NSW] opt to carry out an inspection and raise any other matters during their inspection, Parkview will remedy or respond to those matters as obliged under the D&C contract". 18. On 3 July 2018, the Superintendent advised that, while the Principal considered that the Contractor should send the fire engineering report to the PCA, the Contractor considered that the Principal should do so, "To overcome this I will send this through myself to move things along." The Principal had also advised that, should there be any issues arising from the PCA or the fire brigade with respect to the report which adversely affected the building, the Principal reserved its rights. There was clearly disagreement, and some confusion, between the parties as to who was responsible for gaining approval for rooftop access, and the process which should be followed. The Principal suggested that the Contractor should apply for another construction certificate to deal with the new fire engineering report. The Contractor disagreed and pressed for the release of 50% security. 19. On 10 July 2018, Mr Baltovski sent an email setting out the issues identified by FRNSW during its inspection (in italics) and then explained what the Contractor proposed to do to address these issues, including: 2. The access and egress provisions in relation to the rooftop of the commercial part of the building are not suitable for members of the general public. Access to the rooftop should be restricted for maintenance purposes only. FRNSW recommend SafeWorkNSW be notified in relation to locked access panels from the rooftop. With regards to item 2 above, the locked access panels have been rectified (just like any other defect on any other project) and the access and egress provisions in relation to the rooftop are dealt with in the FER revision 15 (being AS11 and AS12). I do not understand why the PCA would suggest on starting the FEBQ process again. This does not make sense. We only need to close out the 2 incomplete matters raised in the Fire Brigade defects report (refer above). Mr Baltovski went on to explain that the Contractor had made minor amendments to AS 11 and AS 12 in the fire engineering report revision 15. 1. On 9 July 2018, the Superintendent provided the Contractor with a structural survey report obtained in respect of the carpark. The Superintendent advised that the report reflected instructions earlier given to the Contractor, where the construction joints had not been constructed in an adequate manner and water was flowing through them. Further, the finishes did not comply with the specified design. The Contractor was asked to review the report and provide comments, advise of the proposed rectification method and when the works would be complete. On 20 August 2018, the Contractor obtained its own report on the structural condition of the carpark. The Contractor's consultant disagreed that the workmanship of the building was poor. 2. On 12 September 2018, the Superintendent informed the Contractor that the Principal wished to enforce its right under clause 35 of the Contract to undertake rectification work and recover the costs from the Contractor through the retention. The Contractor was not entitled to the return of security where practical completion had not yet occurred. The Principal would also be pursuing liquidated damages, then being $297,459. The Contractor did not agree.

Request for return of balance of security 1. Clause 5.4 of the Contract provided: … A party's entitlement otherwise to security shall cease 14 days after final certificate. Upon a party's entitlement to security ceasing, that party shall release and return forthwith the security to the other party. 1. On 9 October 2018, the Contractor sent a letter of demand to the Superintendent, asserting that the project had reached practical completion by 5 September 2017, such that the defects liability period expired by 5 September 2018. The Contractor was now entitled to the release of the entire security. The Principal was said not to be entitled to undertake rectification work itself, nor to seek liquidated damages. Each of the remaining alleged defects in the project were addressed in detail. The Contractor sought release of the first 50% of security immediately to avoid litigation.

Final payment claim 1. Clause 37.4 of the Contract provided: 37.4 Final payment claim and certificate Within 28 days after expiry of the last defects liability period, the Contractor shall give the Superintendent a written final payment claim endorsed "Final Payment Claim' being a progress claim together with all other claims whatsoever in connection with the subject matter of the Contract. 1. The defects liability period was 12 months commencing on the date of practical completion: clause 35; Item 32, Annexure Part A. The Superintendent could specify a separate defects liability period in any direction to the Contractor to rectify a defect, but had not done so: clause 35, see [256]. 2. On 23 October 2018, the Contractor issued a final payment claim. The amount claimed was $188,000, being the GST on the retention, together with interest, totalling $289,790. 3. On 30 October 2018, the Principal obtained two reports from JHA Consulting Engineers. One report considered post-construction issues for the Travelodge in relation to hot water valves, tempering valves, the fire hydrant and the fire sprinkler system. The second report considered acoustic commissioning. On 31 October 2018, the Principal obtained three reports from Gess Group in respect of the concrete in the carpark. 4. On 5 November 2018, the Principal issued a notice to show cause pursuant to clause 39.2 of the Contract, together with a prescribed notice pursuant to clause 41.1 of the Contract and a notice of dispute pursuant to clause 42.1 of the Contract. Amongst the matters in dispute, the Principal maintained that the Superintendent had given written directions to the Contractor under clause 29.3 of the Contract on 21 occasions from 20 July 2017 to 17 September 2018, which the Contractor had failed to implement. Attached to each notice was a schedule of defective work, with 150 defects in total. (The Contractor says the Principal is not entitled to claim defects which were not in this schedule, relying on clause 37.4(d).) 5. Also in evidence is a draft "Notice of and direction to rectify defective work" together with a draft schedule of defective work, each headed "To be issued by the Superintendent." The schedule of defective work was the same as that attached to the notices issued by the Principal. The font and format of the draft letter "To be issued by the Superintendent" was the same as Principal's letters issued that date. It would appear that both documents were prepared by the Principal's solicitor. 6. On the evening of 5 November 2018, Mr Andary sent an email to the Superintendent, being "Email to the 2 of 2." Mr Andary provided a link to a share file held by the Principal's solicitor. Apparently, the link had various files to be attached by the Superintendent to a notice to be sent to the Contractor. According to Mr Andary's email, the link contained concrete defects reports, door reports, tax invoices for false fire alarms and a letter to Travelodge, "Please do NOT give the share link to Parkview but MAKE A NEW CCPM dropbox. i.e. Download the 11 relevant attachments, and create a NEW CCPM share link." As I read it, whilst the Principal was providing the attachments to the Superintendent, the attachments were to be saved by the Superintendent so that this fact was readily apparent to the Contractor when the attachments were served. 7. On 6 November 2018, the Principal also instructed the Superintendent to send a Notice to Rectify Defective Work Landscaping Defects under clause 29.3 of the Contract, a draft of which was attached and, it would appear, prepared by the Principal's solicitors. The Principal also issued a notice of dispute in respect of landscaping.

FINAL CERTIFICATE 1. As mentioned, clause 37.4 of the Contract provided that, within 42 days after expiry of the last defects liability period, the Superintendent shall issue a final certificate evidencing the moneys finally due and payable between the Contractor and the Principal on any account whatsoever in connection with the subject matter of the Contract. 2. On 6 November 2018, the Superintendent issued various documents as prepared by the Principal's solicitors, including a tri-fold response to the final payment claim, being: (emphasis in original) (a) Superintendent's Primary Position – "Final Payment Claim" is not a final payment claim. This response is contained in Schedule 1. (b) Superintendent's Alternative Position – if the "Final Payment Claim" is a progress claim under clause 37.1 of the Contract. This response is contained in Schedule 2. (c) Superintendent's Further Alternative Position – if the "Final Payment Claim" is a final payment claim. This response is contained in Schedule 3. 1. That is, Schedule 3 set out the Superintendent's "Further Alternative Position" if the Contractor's final payment claim was a final payment claim. In that event, Schedule 3 stated that the Superintendent's response would serve as a final certificate under clause 37.4. The Superintendent certified that $3,080,120 was due and payable from the Contractor to the Principal for the reasons detailed in Appendix A. Appendix A accepted the Principal's claim for $188,000 unpaid GST and interest but deducted various amounts for estimated rectification costs and liquidated damages then calculated to be $2,015,013. The Superintendent enclosed various expert reports concerning concrete defects in the carpark and further expert reports concerning fire seals. Annexed was the same schedule of defective work, comprising 150 items. 2. The Superintendent also issued two notices of and direction to rectify defective work pursuant to clause 29.3, being in respect of the sprinkler and fire hydrant together with landscaping. 3. On 7 November 2018, the Contractor disclaimed the Principal's notice of dispute as defective and denied all allegations of defective work. The Contractor sought an undertaking that the Principal would not have recourse to the security, failing which injunctive relief would be sought from the Court. 4. On 8 November 2018, the Principal issued a Notice of Dispute to the Contractor and the Superintendent in respect of further defective work. The pressurisation fan unit on the rooftop of the hotel was said to be out of position. Room 409 of the hotel was said to have water ingress. Water was leaking from the restaurant high ceiling. The Principal also provided the Superintendent with a draft Notice to Rectify Defective Work in respect of same defects and directed the Superintendent to send the notice to the Contractor. 5. On 9 November 2018, the Principal provided the Superintendent with a draft letter "To be issued by the Superintendent." The letter was to attach a report obtained by the Principal from JHA Consulting Engineers in respect of hydraulic services concerning the Travelodge, identifying defective work in respect of the hydrant and sprinkler systems. In the draft letter, the Contractor was asked to confirm, as a matter of urgency, that it would redesign, reconstruct, replace or correct the defective work by 12 November 2018. Although the letter sent by the Superintendent is not in evidence, an email from the Contractor confirms that the Superintendent requested that all items in the JHA report be actioned by 13 November 2018. 6. On 13 November 2018, the Contractor advised that Pipeline Plumbing had attended the site to inspect the issues raised in the report and would respond and rectify works raised by 19 November 2018. The Contractor disputed that the Principal had any right to recover any costs in respect of the matter. The Superintendent advised that this was not acceptable and the Principal would be attending to the works if not completed that day. The terms of the Superintendent's email suggest that it was also prepared by the Principal's solicitors. 7. On 13 November 2018, the Contractor issued a notice of dispute to the Superintendent. On 16 November 2018, the Contractor responded to the Principal's Notice to Show Cause, including a response to the schedule of defective work. 8. Also in evidence are a number of emails at this time of flooding on level 7 of Building A which "has seeped through the external walls and hobs into the newly completed fitout." The urinals in the commercial levels of Building A were not flushing and the sensors to the basin taps were inactive. Tenants were said to be having to use the hotel amenities. The Principal complained that the knobs on hose cocks were missing. Toilets and urinals were blocked. This correspondence largely emanated from Mr Andary's brother, Daniel Andary, who appears to have been appointed as building manager. On inspection, however, the Contractor reported that Prime Water was testing the fire systems, which led to the flooding. The facilities did not appear to have been cleaned or maintained. Apart from one leaking tap on level 9, all bathroom taps were functioning properly. The Contractor also queried the building manager's standing to report such suggested defects. Mr Baltovski considered that many of the matters raised related to ordinary maintenance issues or matters which related to other contractors engaged by the Principal and were not the responsibility of the Contractor. 9. On 16 November 2018, the Contractor responded to the Superintendent's direction to rectify defective landscape, disclaiming the requested replacement of trees and mulch as a maintenance issue and not the responsibility of the Contractor, given the passage of time since the works were completed. In addition, the Contractor complained: Your purported notice demonstrates that you have been, and continue to, act as an agent of the Principal. You have not considered the issue of the landscaping or any other matter in administration of the Contract, impartially or objectively. This is evidenced by the fact that you have not even bothered to issue the purported notice on your own letterhead, and the purported notice still contains the Principal's instruction "To be issued by the Superintendent". 1. On 23 November 2018, the Contractor responded to the Superintendent's Notice of and Direction to Rectify Defective Work, suggesting that the allegations were fanciful and constituted "clear evidence of the coordinated attempt by the Superintendent and the Principal" to establish a basis for the Principal to continue to unlawfully hold the Contractor's security. Where the notice had clearly been prepared by the Principal, the Principal was said to have failed to comply with its obligations under clause 20 of the Contract to ensure that the Superintendent fulfilled all aspects of its role and functions reasonably and in good faith.

THESE PROCEEDINGS 1. On 11 December 2018, the Contractor commenced these proceedings, seeking to restrain the Principal from having recourse to the security. The Contractor sought the return of the bank guarantees and damages, being loss of profits or the lost opportunity to utilise the funds secured by the guarantees. The Contractor contended that practical completion was reached on 5 September 2017. The Superintendent's "conditional" certificates of practical completion were said to be certificates of practical completion. As such, the Contractor was entitled to the return of 50% of the security within 14 days of 20 September 2017 and/or 9 October 2019. In the event that the "conditional" certificates of practical completion were not valid, then the Superintendent should have issued certificates of practical completion by 5 September 2017 or, alternatively 20 September 2017 and 9 October 2017, such that 50% of the security was returnable. Further, the Principal was obliged to ensure that the Superintendent fulfilled its role and functions reasonably and in good faith; the Principal should have ensured that the Superintendent did so by certifying practical completion on the said dates. 2. Despite demand, the Principal had failed to return one of the bank guarantees. Further, where the Contractor had issued its final payment claim on 23 October 2018, the Principal was not entitled to liquidated damages, nor to have recourse to the security in respect of those damages. Rather, the Principal's entitlement to security ceased 14 days after the final certificate ought to have been properly issued such that the Principal was required to release the second bank guarantee. Further, the Superintendent was said to have issued notices prepared by the Principal and contrary to the Superintendent's obligation to act reasonably and in good faith, resulting in the Principal having breached the Contract for failing to ensure that the Superintendent discharged its obligations in this manner. 3. The Principal denied that practical completion was reached on 5 September 2017 or at all, where the work was said to be incomplete and defective. The conditional notices of practical completion were not certificates of practical completion in conformity with the Contract. In the circumstances, the Contractor was not entitled to the return of either the first or second bank guarantee. Nor was the Contractor entitled to issue a final payment claim. Rather, the Superintendent had issued three Notices of and Directions to Rectify Defective Work, which gave a direction in accordance with the Contract. The notices had not been complied with such that the Superintendent was not obliged to issue a final certificate under the Contract, nor was the Contractor entitled to the return of the remaining security. In the alternative, the Principal claimed to be entitled to set off any monies or damages due from the Contractor by reason of the Principal's cross-claim seeking liquidated damages and damages in respect of defective work. 4. In response and reply, the Contractor contended that the Superintendent's response to the final payment claim, and its directions to rectify, were issued on the direction of the Principal as provided by the Principal such that both were invalid and of no effect. Where the Principal was said to have failed to ensure that the Superintendent fulfilled its role and functions reasonably and in good faith, the Principal was not entitled to claim that the Contractor could not rely on clause 37.4 of the Contract. In the result, it was said that, from the date when the final certificate ought to have been issued, there was accord and satisfaction such that the Contractor's obligations were discharged save for any defects or omissions which were not apparent at the end of the last defects liability period, or which would not have been disclosed upon a reasonable inspection at the time of the issue of the final certificate. 5. In reply, the Principal maintained that, to the extent that building defects specified in a Scott Schedule had not previously been specified in the notices issued by the Superintendent, the defects were not apparent nor would they have been disclosed upon a reasonable inspection by the end of the defects liability period for which the Contractor contended (which the Principal denied had either commenced or ended).

RECTIFICATION CONTINUES 1. As expert reports were served in these proceedings, the Contractor accessed the site from time to time to remedy the matters raised by the experts. The Principal permitted access for this purpose whilst reserving its rights. The Contractor, on the other hand, advised that the works were being undertaken on a commercial basis "as it will cost less to do the works than to argue with you about it and to put it well beyond doubt that you have no entitlement at all to hold Parkview's bank guarantee." The Principal later complained that the Contractor was not rectifying defects or incomplete works but "trying to determine which contractor is at fault to pass [on] liability [and] avoid utilising its own monetary resources." Some of the correspondence was unhelpful. 2. On 8 March 2019, the Contractor wrote to the Superintendent and the Principal in respect of an issue with fresh air to the hotel rooms. The Contractor stated that the original design for mechanical services provided fresh air to the hotel rooms by openable windows, which the Contractor had implemented. On a 'without admissions' basis, and simply to "put this to bed", the Contactor offered to implement an alternative proposal to install a fire damper to each room through the wall in the ceiling void above the hotel room door, so that fresh air could come from the end of the corridors. Mr Baltovski said the proposal adopted the methodology proposed by the Principal's consultant, Credwell Consulting Pty Ltd. 3. On 23 May 2019, the Superintendent advised the Contractor that a car had crashed into a barrier at the carpark, causing louvres to shoot off the building and land in the neighbour's property. The Superintendent maintained that the crash barriers were not as per the original design and no approval had been given to change them. The Contractor replied that the crash rail system had performed as it was supposed to. The Superintendent was asked to administer the Contract rather than simply forward the Principal's requests. 4. On 15 April 2020, the Principal lodged an application with the Council to modify the development consent by "the addition of roof top deck area". The estimated cost of works was $60,000. The Council issued consent on 22 October 2020. Mr Andary said the work referred to in the consent has not been undertaken. 5. In January 2021, the Contractor commenced works at the Travelodge to improve the fire rating of the hotel rooms and fire stairs. This work took longer than expected and it is apparent from the numerous emails that passed between the parties that tempers were fraying by this time. 6. On 31 May 2021, Mr Baltovski arranged for contractors to carry out works in the carpark, patching concrete beams at the tower crane infill on the ground level and levels 2, 3 and 4 and removing small formwork pieces left on level 2 and level 4. 7. On 10 September 2021, Mr Baltovski attended the site to investigate a number of items raised by the report of Credwell Consulting. Mr Baltovski measured the treads and risers of each of the fire stairs said to be defective and observed no non-compliance on various items. On 13 September 2021, Mr Baltovski arranged for contractors to carry out rectification works in respect of other items in the report, being items 333, 393, 394, 407, 411 and 414. 8. The Contractor was continuing to attend the site and rectify defects during the course of the hearing. This had the consequence that the scope of defects which ultimately called for a decision on my part were significantly reduced in number. Further, the experts were able, by and large, to agree on a large number of defects, and also that many of those defects had since been rectified. I express my gratitude to the parties in this regard.

ROOFTOP TERRACE 1. The first issue is whether the manner in which the Contractor constructed the rooftop terrace of Building A prevented – and continues to prevent – the achievement of practical completion. It will be recalled that the definition of practical completion provides: Practical completion is that stage in the carrying out and completion of WUC when: a) the Works are complete except for minor defects: (i) which do not prevent the Works from being reasonably capable of being used for their stated purpose; … (d) the Contractor has done all things that it is required to do under the Contract to enable the Principal to obtain a certificate of occupation from the applicable Authority; 1. As earlier mentioned, I infer that the development consent in force at the time of the Contract and construction did not permit commercial tenants to use the rooftop area. Notwithstanding this, the Principal pointed to several features in the drawings that would only be necessary if the roof terrace was intended to be accessible to such tenants: 1. the drawings show separate stairs providing roof access for each of the eastern and western sides of the building, allowing level 12 to be divided into separate tenancies, each with a stair access to the roof; 2. access to the roof on the north-western side was provided by stairs located within the commercial office space on level 12, rather than located within a common area; 3. parts of the roof deck in the north-western and north-eastern corners were to be segregated from the southern half of the roof by screens, to shield mechanical plant from view; 4. a cutaway section was to be cut in the roof parapet to permit views of the city; and 5. the roof slab accessed by the glass hatch was to have a trafficable membrane, although there was no plant or equipment located in that area that would require maintenance personnel to walk there. 1. Against this, based on his review of the plans, Mr Baltovski could not identify anything to suggest that the roof area was intended to be used by the general public. Mr Tabet said he did not believe that the roof was to be used for public access, but for maintenance only. Mr Tabet maintained that the Contractor had constructed these works correctly, "If there's a different use for the rooftop and that's what this is addressing that's got nothing to do with our contractual obligation." 2. The Principal submitted that the development approval did not preclude the construction of the physical works in a way that would permit access by tenants of the commercial tenancies. Regulation 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 provided that a certifying authority must not issue a construction certificate for building work unless "the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent". Had the proposed works been inconsistent with the development approval, the PCA could not have approved them. Assuming that to be so, the question remains whether the Contractor was obliged under the Contract, viewed objectively, to the build the rooftop in accordance with that use.

Principles 1. The meaning of the contract is determined objectively by reference to what a reasonable person would have understood the contract to mean having regard not only to the text of the document but to the surrounding circumstances known to the parties and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461; [2004] HCA 35 at [22] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). The context includes the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 116; [2015] HCA 37 at [46] (per French CJ, Nettle and Gordon JJ). The Court interprets commercial contracts objectively "by what a reasonable businessperson would have understood [the] terms to mean": Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656; [2014] HCA 7 at [35] (per French CJ, Hayne, Crennan and Kiefel JJ). The actual subjective intentions of the parties are irrelevant: Mount Bruce at [50]. 2. A contract is interpreted as at the date on which it was entered into: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 at 551; [2017] HCA 12 at [16] (per Kiefel, Bell and Gordon JJ), [77] (per Nettle J). Generally, it is not legitimate to use as an aid in the construction of a contract anything which the parties said or did after it was made: Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 482; [2008] HCA 57 at [35] (per Gummow, Hayne and Kiefel JJ), citing Whitworth Street Estates Ltd v Miller [1970] AC 583 at 603 (per Lord Reid); Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 446; [1973] HCA (Gibbs J). 3. Post-contractual conduct may, however, be relied on to prove what the terms of the contract were, albeit not what the terms mean: Lym International Pty Limited v Marcolongo [2011] NSWCA 303 at [124] (per Campbell JA with whom Basten JA and Sackar J agreed). By such conduct, a party may make an admission against interest as to the terms of the contract: JR Consulting & Drafting Pty Ltd v Cummings (2016) 239 ALR 625 at 637; [2016] FCAFC 20 at [54] (per Bennett, Greenwood and Besanko JJ). Subsequent conduct may also indicate what was important or essential to the transaction and indicate the parties' contractual intention: Queensland Phosphate Pty Limited v Korda (as joint and several liquidators of Legend International Holdings Inc (in liq)) [2017] VSCA 269 at [37] (Per Tate and Beach JJA, Sifris AJA).

Consideration 1. It does appear that the Principal wished to further develop or use the site beyond what was initially approved by the Council. I note that the carpark was constructed to support the future addition of two further levels: see [67]. Over the various iterations of the fire engineering report, the Principal's ambition to use the rooftop of Building A as an entertainment area for commercial tenants became clear and would have been clear to the Contractor, even if it was not clear from the plans: see [50]. Less clear is the contractual obligation on the Contractor to construct the rooftop terrace to fulfill that intended use. 2. The Contractor was obliged to complete WUC in accordance with the design documents so that the Works were "fit for their stated purpose": clause 2.2(a)(iv). As to what was the "stated purpose" of the rooftop, the Contractual Documents in Schedule 1 to the Contract and the design documents, including the various drawings, shed no light on the matter, save that various plant and machinery was to be installed there. 3. It may well be that the features of the drawing referred to by the Principal point to the Principal wishing to make the rooftop available for the use of its commercial tenants, but the drawings do not make this plain. Nor was I taken to any particular detail or specifications which required access to the rooftop to address such a use. To use the language of the Contract, the drawings do not specify that this was the "stated purpose". The parties' subjective intentions as to how the rooftop may be used are irrelevant to the interpretation of the Contract and the parties' obligations. 4. The Principal relied on three instances post-contractual conduct in support of its position that the contract required the rooftop to be developed for public use. As already observed, post-contractual conduct cannot be relied on to aid in the interpretation of a contract. However, such conduct may amount to an admission against interest as to what the terms of the contract were: JR Consulting at [54]. 5. First, it was said that the Contractor produced a further fire engineering report in June 2018 because the Contractor plainly understood that the works would need to be consistent with access to the rooftop for the commercial tenants. I note, however, that the report states that it was "commissioned by Futuroscop". Mr Baltovski's email providing the report was careful not to accept any obligation beyond that imposed by the Contract: see [146]. 6. Second, the Principal relied on Mr Baltovski's email of 10 July 2018 as evidencing the Contractor's understanding that the roof terrace was for public use: at [148]. The Principal submitted that, if access to the roof by commercial tenants was not required by the Contract, the Contractor would have said so and there would have been no need to make further changes to the fire engineering report. I do not read Mr Baltovski's email to acknowledge such an understanding. Rather, Mr Baltovski was drawing attention to the fact that the matters which Fire & Rescue NSW had sought to be addressed in September 2017 had been attended to at the time: see [88]-[89]. In any event, as Mr Baltovski did not join the Contractor until two years after the Contract was entered into, when construction was nearing practical completion, his understanding is of little moment. 7. Third, the Principal relied on photographs of the finished stairs from the Level 12 commercial tenancy to the rooftop, which indicate that the Contractor intended that the stairs would be used by the public. I agree that the level of finish of the stairs exceeded that needed by maintenance staff. This may be regarded as an admission against interest, being evidence that the Contractor thought it was obliged to provide public access to the rooftop in order to perform its contractual obligations. 8. The admission against interest, however, is not dispositive. It is evidence to be considered together with the Contract, the documents referred to in the Contract, the surrounding circumstances known to the parties and the purpose and object of the transaction. Where there was no variation of the Contract in respect of the rooftop terrace, the focus is on the circumstances when the Contract was entered into on 4 September 2015 rather than how the parties may have perceived their obligations two years' later. In the intervening two years, the Principal's plans to use the rooftop terrace for its commercial tenants had evolved through various fire engineering reports. The Contractor may well have come to think it was obliged to build to that standard. 9. The Contract incorporated, by reference, the development approval. It will be recalled that Special Condition 52 obliged the Contractor to "ensure that the WUC is executed in such a way as not to breach the Development Approval". I consider that a reasonable person would have understood the Contract to mean that the Contractor was to construct the works in accordance with the development approval, and not to go beyond what had been approved, noting that doing so may have exposed the Contractor to criminal prosecution: sections 4.2 and 4.3 and Division 9.6, Environmental Planning & Assessment Act 1979 (NSW). 10. Having regard to the terms of the Contract, in particular, clause 2.2(a)(iv), the design documents including the drawings, Special Condition 52 and the fact that the development approval in force at the time of entry into the Contract and during the build did not permit the rooftop terrace to be used by commercial tenants, I do not consider that a reasonable person would have understood that the Contractor was obliged to construct this part of the building in accordance with the Principal's wish to use the rooftop in this manner in the absence of clear drawings and specifications. The plans and specifications do not make this clear. 11. In the result, I consider that construction of the rooftop terrace sufficient to enable maintenance staff to access the rooftop sufficed to enable the Works to be "reasonably capable of being used for their stated purpose" and to enable the Principal to obtain a certificate of occupation consistent with the terms of the development approval which applied during the build. Practical completion was not deferred until an amended development approval was obtained for an enhanced use.

EFFECT OF 'CONDITIONAL' NOTICES 1. The second issue is whether the "conditional" notices issued by the Superintendent comprised a certificate of practical completion, as required by clause 34.6 of the Contract.

Principles 1. Unless a contract specifically provides for a certifier to issue a "conditional" certificate, the issue of such a certificate may be ineffective. For example, in Official Assignee of Hutson v The New Zealand Antimony Company (Ltd) (1890) 10 NZLR 143, payment for the erection of furnaces was to be made on the presentation of an inspector's certificate. The inspector was to certify that, after 12 days of operation, the furnaces were "in good working order, and to the full satisfaction of the … inspector". The inspector certified that the furnaces were working satisfactorily but had cracked and required a repair. The Court of Appeal held that the certificate could not be treated as a final certificate, as "it expresses not the satisfaction of the inspector but the absence of that satisfaction:" at 148 (per Denniston J, Conolly J agreeing). 2. In Kenneth McMahon & Partners Pty Ltd v Domain Investments Pty Ltd (1973) 47 ALJR 240, the contract provided that the architect, if reasonably satisfied that the works were practically complete, should issue a notice of practical completion fixing the time on which the works were practically complete. The architect issued a notice that the work had reached the stage of practical completion but added that it was subject to the completion of a number of listed defects and the completion of certain work. Barwick CJ queried whether the notice was an unqualified notice of practical completion for the purposes of the contract, where it was expressed to be subject to performance of additional work, albeit that the work was said to be of a minor nature; "The notice might well be regarded as conditional and not unqualified": at 243. A like view was expressed in Re Arbitration between CME Contractors Pty Ltd and Redcliffe City Council (Unreported, Supreme Court of Queensland, Dowsett J, 8 September 1987), when considering whether the Superintendent had granted an extension of time where the extension was subject to conditions, including that no further requests for extensions be made or granted: at page 10. 3. Similarly, in Ian Delbridge Pty Ltd v Warrandyte High School Council [1991] 2 VR 545, the Court considered this problem where an architect issued a final certificate certifying the amount payable to or by the builder. The certificate was accompanied by a letter stating that adjustments to the final balance would be paid when the builder had submitted various information. The letter also referred to the completion of rectification works which had not yet occurred. A contract summary accompanying the certificate also contained various statements indicating that the architect contemplated a further review of the builder's claim for payment. Murphy J noted, "The finality and consequences of a final certificate are such that it is not possible to have a reviewable or variable balance stated in such a certificate": at 550. Whilst the document, on its face, purported to be a final certificate, it was clear that the architect did not intend it to have the effect of a final certificate under the contract; the document was not in fact a final certificate as contemplated by the contract: at 553. 4. As will be apparent from these cases, much turns on the particular contractual provisions and the content of the certificates. The principles concerning the construction of commercial contracts have already been stated, and apply in like fashion to notices issued under a contract: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 771; followed in MLW Technology v May [2005] VSCA 29 at [78]-[82] (per Gilliard AJA). As Lord Steyn concluded in Mannai Investment at 771: In determining the meaning of the language of commercial contract, and unilateral contractual notices, the law therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language. … After all, there is no reason whatever why such a document must be drafted by a lawyer. … Such notices, even if they entail the exercise of important options, are habitually drafted by commercial men rather than lawyers. It would be a disservice to commercial practice to classify such notices as technical documents and to require them to be interpreted as such. … 1. Similarly, in National Roads & Motorists' Association v Whitlam (2007) 25 ACLC 688; [2007] NSWCA 81, Campbell JA observed, "The principle of construction whereby a commercial document that is elliptical or ambiguous should not be given a construction that is commercially unlikely is well established": at [58].

Consideration 1. Turning to the "conditional" notices in this case, on receiving a request from the Contractor for a certificate of practical completion, "the superintendent has two options [under clause 34.6], either to issue a certificate or to give written reasons for not doing so. One or other of those steps must be taken …": Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 at [32] (per Basten JA, when considering an identical clause 34.6). 2. I do not consider either "conditional" notice to be "written reasons" for not giving a certificate of practical completion as requested by the Contractor. Both notices were quite unlike the "written reasons" issued on 5 September 2017: see [84]. Neither notice sought to engage with the date of practical completion proffered by the Contractor, nor to identify items of work which prevented practical completion being achieved on that date. Nor did the Superintendent ask the contractor to provide an alternative date on when practical completion would be reached. Rather, each "conditional" notice tantalisingly suggested that practical completion would soon be reached or had already been reached. 3. Each "conditional" notice gave a retrospective date for practical completion in the event that the conditions were satisfied. Whilst a certificate can specify a date prior to its issue as being the date of practical completion, much turns on the definition of practical completion in the contract: Metro Edgley Pty Limited v MK & JA Roche Pty Limited [2007] NSWCA 160 at [81]-[82] (per Hodgson JA). In Abergeldie, Basten JA construed an identical clause 34.6 and concluded that the issue of the certificate records practical completion and, therefore, provides the date on which practical completion is achieved: at [34]-[36]. Further, the certificate of practical completion cannot be backdated, where a number of contractual provisions depend upon the date of practical completion. Backdating the certificate would give rise to commercial uncertainty and place the parties in breach of other contractual obligations: at [41]-[46]; see likewise Meagher JA at [69]. 4. In Abergeldie, Basten JA treated the specification of an earlier date as ineffective, where the certificate was otherwise consistent with an understanding that the Superintendent had satisfied himself that practical completion had been reached on the date that the certificate was issued: [54]. If that were the only problem with these notices, then the retrospective date could be treated as ineffective such that the date of practical completion would be the date on which the notices were issued. But that is not the only problem. 5. The first "conditional" notice in respect of Building A can be readily dispensed with. Clause 1 defined practical completion as that stage in the carrying out and completion of WUC when the Works are complete except for minor defects. WUC meant the work which the Contractor is required to carry out and complete under the Contract. The Works meant the whole of the work to be carried out and completed in accordance with the Contract. Building A and Building B were not "separable portions" such that the Superintendent might issue a certificate of practical completion in respect of one building or the other, rather than the Works as a whole. Rather, the Works were not complete until both buildings were completed in accordance with the Contract. 6. Whatever may be said about the first "conditional" notice in respect of Building A, the Superintendent was perfectly plain as to the state of completion of Building B: "For clarity, this is not Notice of Practical Completion for Building B (conditional or otherwise). The tenant for Building B has not taken possession … due to major unfinished construction items and safety concerns." Where the Works comprised both Building A and Building B, on no view was the first "conditional" notice a certificate of practical completion of the Works. 7. The items and list of defects in the second "conditional" notice were, by and large, minor and would not prevent Wilson Parking using the carpark for its stated purpose: small items were missing, paint touch ups and cleaning were needed. Indeed, Wilson Parking had been operating the carpark for two weeks when the second "conditional" notice was issued. More significant were the ongoing issues about crash rails and concrete finish. But neither of these issues prevented the carpark being used as such. There was no suggestion that the crash rails installed were unsafe but rather that the crash rails did not realise the architect's aesthetic vision. Whether the concrete finish was "Class 2" or "Class 3" did not prevent people parking their cars there. 8. The second "conditional" notice, however, did not advance matters where it made no reference to Building A at all. Whether the Superintendent then held an opinion as to whether the list of "Outstanding Matters Affecting PC" attached to the first "conditional" notice had been remedied such that the Superintendent then regarded Building A as practically complete is unstated. All that is known is that the Superintendent considered that there were "many items outstanding to achieve full completion for Building B", where I take "full completion" to mean something other than "practical completion". No opinion was expressed about the state of completion of Building A. 9. I do not consider that the two notices can be construed together in order to arrive at a 'composite' certificate of practical completion within the meaning of clause 34.6 the Contract. Where the Contract did not identify "separable portions", clause 34.6 – and the other contractual provisions which turned on practical completion – were premised on practical completion being achieved on one date. Here, the Superintendent issued two notices, each of which specified a different and retrospective date, and neither of which expressed the contemporaneous satisfaction of the Superintendent as to the elements of the defined term, practical completion: Abergeldie at [48] (Basten JA). In the result, I consider the "conditional" notices to be without contractual effect.

DATE OF PRACTICAL COMPLETION 1. Having concluded that the "conditional" notices were neither a certificate of practical completion, nor written reasons for not issuing such a certificate, the third question is what the Court can, and should, do given the Superintendent's failure to perform a critical function under the Contract. 2. The date of practical completion means (clause 1): (a) the date evidenced in a certificate of practical completion as the date upon which practical completion was reached; or (b) where another date is determined in any arbitration or litigation as the date upon which practical completion was reached, that other date 1. When construing relevantly identical clauses in Abergeldie, Basten JA concluded that the definition of practical completion called for the opinion of the superintendent in respect of each of the requirements of the definition: at [37]-[40]. In forming this view, Basten JA drew an analogy with administrative law principles. Where a jurisdictional fact is the formation of an opinion of the original decision-maker, the Court is limited to determining whether that opinion was formed. The Court may then be asked to conclude that the opinion so formed was not an opinion of the kind required by law as it was arbitrary, capricious or manifestly unreasonable: at [38]. Contrary to the Principal's submissions, however, Basten JA was not stating that the Court must always treat the opinion of a party vested with contractual decision-making authority as determinative unless it is "arbitrary, capricious or manifestly unreasonable." Rather, the starting point of any analysis must be the language of the contract: Walton v Illawarra [2011] NSWSC 1188 at [39] (per McDougall J). 2. Clause 20 provides guidance as to the way in which the parties to the Contract expected the Superintendent to carry out its obligations and whether, in carrying out those obligations, the contracting parties got what they were entitled to receive: Walton v Illawarra at [40], [42]; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103 at [75] (per Bell J). The parties were entitled to expect that "the Superintendent fulfils all aspects of the role and functions reasonably and in good faith". 3. Here, the Superintendent failed to perform its function under clause 34.6 at all. The "conditional" notices were neither a certificate of practical completion nor written reasons for not issuing such a certificate. No certificate of practical completion has been issued in the ensuing five years. Where the moment of practical completion is of great significance under a building contract, the Superintendent has failed to identify that moment with precision, or at all. I do not consider that the Superintendent acted reasonably when discharging its role and function in certifying practical completion. 4. Subparagraph (b) of the definition of date of practical completion makes clear that the parties did not intend the Superintendent's decision to be the sole means by which the date would be determined. The definition does not accord primacy to the date in the Superintendent's certificate, nor does it make the Court's determination of the date dependent on the Superintendent having first issued a certificate. Instead, where the date of practical competition is subject to litigation or arbitration, the Contract provides a mechanism for the Court to determine "another" date on which practical competition was reached. In the circumstances at hand, it falls to the Court to determine the date of practical completion. 5. As earlier described at [71]-[151], by 7 August 2017, the Contractor had submitted a notice of final inspection to the Superintendent under clause 35 of the Contract, at least in respect of Building A. By 14 August 2017, the 'hand over' documents were being assembled. The Contractor advised that it anticipated achieving practical completion by 28 August 2017, but moved that date back to 5 September 2017 and then 8 September 2017. On 7 September 2017, Fire & Rescue NSW inspected the site. 6. On 12 September 2017, an interim occupation certificate was issued and the hotel began operations; the Contractor handed over As Built drawings, certificates, manuals and warranties. On 22 September 2017, the Superintendent accepted the quantity surveyor's recommendation to pay the Contractor's progress claim of 12 September 2017 on the basis that the defects preventing practical completion were "minor". Wilson Parking commenced operations on 25 September 2017. 7. On 11 October 2017, the day after the second "conditional' notice, the Superintendent calculated liquidated damages on the basis of "Full LDs" from 5 September 2017 until 12 September 2017, when the interim occupation certificate was received. Thereafter, liquidated damages were calculated for the roof terrace portion of Building A only, together with liquidated damages for Building B, until 25 September 2017, when Wilson Parking commenced operations. Thereafter, liquidated damages were only charged for the rooftop terrace. What these calculations reveal is the Superintendent's opinion that Building A reached practical completion on 12 September 2017 (save for the roof terrace, which I have concluded also reached practical completion on that date) and that Building B reached practical completion on 25 September 2017. 8. Considering each element of the definition of practical completion, I consider that the Works were complete save for minor defects on 25 September 2017. Having reviewed each of the defects identified in the two "conditional" notices, I do not consider that these items prevented the hotel or car park from being reasonably capable of being used for their stated purpose, as evidenced by the fact that Travelodge and Wilson Parking were doing just that. I accept that the definition of practical completion did not depend upon occupation of the building: Stuart Pty Ltd v Feteni Pty Ltd; Coogee Sands Apartments Pty Ltd v Stuart Pty Ltd [2004] NSWSC 237 at [276]-[279], [298] (McDougall J) cf Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302, where the contract provided that practical completion could be deemed to have been reached through occupation and/or use of the building works. But the fact that experienced commercial operators saw fit to commence operations in Building A and Building B is evidence that the defects which then existed were "minor [and did] not prevent the Works from being reasonably capable of being used for their stated purpose" and rectification of defects would not prejudice the convenient use of the Works. 9. The Superintendent does not appear to have turned its mind to whether the Contractor had reasonable grounds for not properly rectifying the defects listed in the "conditional" notices. So far as the evidence reveals, the Contractor was in the process of attending to the specified defects. To the extent that the Superintendent had raised substantive matters in respect of rooftop access, crash rails and concrete finishes, the Contractor did not consider that it was obliged to remedy those defects in order to discharge its contractual obligations. As it turns out, the Contractor was correct in respect of at least some of those matters. 10. The evidence does not suggest that rectification of the defects prejudiced the convenient use of the hotel or car park. The requirements of subparagraphs (b), (c), (e) and (f) were satisfied by 25 September 2017. As to subparagraph (d), the Contractor was required to have done all that it was required to do under the Contract to enable the Principal to obtain a certificate of occupation from the Council. When the Principal obtained an interim occupation certificate which permitted maintenance staff to use the rooftop terrace, this discharged the Contractor's obligation where development approval did not then permit use of the terrace by the public. In the result, I determine that practical completion was reached on 25 September 2017.

LIQUIDATED DAMAGES 1. The fourth question is whether the Court can ascertain liquidated damages based on the date of practical completion determined in these proceedings. Clause 34.7 provides: 34.7 Liquidated damages If WUC does not reach practical completion by the date for practical completion, the Superintendent shall certify, as due and payable to the Principal, [$12,100] for every day after the date for practical completion to and including the earliest of the date of practical completion or termination of the Contract or the Principal taking WUC out of the hands of the Contractor. … 1. As earlier described, the Superintendent provided various calculations of liquidated damages in October 2017. As I understand those calculations, the daily amount of $12,100 was apportioned by reference to both the square meterage of the roof terrace (5.46% of Building A) and the income expected to be generated by the respective tenancies (the carpark contributed 39% of total income). Of course, this methodology had no basis in the Contract. Presumably, the Superintendent was trying to be fair to the Contractor where the Superintendent was then satisfied that some, but not all, of the Works had achieved practical completion. 2. The Superintendent provided an updated calculation of liquidated damages to the quantity surveyor in November 2017, apparently applying the same methodology. The Superintendent provided an updated calculation to the Contractor in September 2018, with the figure now totalling $297,458. 3. On 6 November 2018, the calculation of liquidated damages became further removed from the Contract, where the calculation was not even prepared by the Superintendent, but by the Principal's solicitor "To be issued by the Superintendent." Further, while the calculation of liquidated damages for Building A and the rooftop terrace largely followed the apportionment applied by the Superintendent to that point, liquidated damages for Building B now continued beyond 25 September 2017 to date, 'blowing out' the liquidated damages to $2,015,013. It was this amount which was 'certified'. 4. In these proceedings, the Principal sought liquidated damages based on the Contract rather than the amounts previously calculated by the Superintendent, but on the basis that the Works had yet to reach practical completion. The amount sought was demurely described as $2,235,940 as at 5 November 2018 and continuing. By my calculations, this was some $20 million. 5. The Contractor submitted that the Contract provided no mechanism for the Court to step into the shoes of the Superintendent to calculate liquidated damages payable by the Contractor, unlike the determination of the date of practical completion. To this, the Principal submitted that certification is a contractual power of the Superintendent under a contract that remains on foot. If the certification is invalid, the Principal can ask (and, if necessary, compel) the Superintendent to certify the correct amount according to law. 6. There is some authority in support of the proposition advanced by the Contractor. In RCR O'Donnell Griffin Pty Ltd [2015] QSC 186, a subcontract in relevantly identical terms had no Superintendent in place and thus no certificate in respect of liquidated damages. Byrne SJA concluded that liquidated damages were not payable without the Superintendent's certificate. The language chosen to describe the source of the obligation – "the Superintendent shall certify, as due and payable …" – accorded with the idea that certification was essential to the liability to pay: at [38]. Where the Superintendent was empowered elsewhere in the Contract, in its absolute discretion, to direct an EOT before issuing a final certificate, an exercise of that power would reduce or negate liquidated damages otherwise payable for delay, "So the assessment is not inevitably a mere mathematical exercise based on the number of days of delay after the date for practical completion fixed by the subcontract:" at [39]-[40]. His Honour's reasoning was upheld by the Court of Appeal: RCR O'Donnell Griffin Pty Ltd v Forge Group Power Pty Ltd [2016] QCA 214 at [103] (per McMurdo JA, with whom Applegarth J agreed); at [14] (per Morrison JA). 7. Here, of course, the Superintendent has certified liquidated damages, but in a manner that bears no relation to the Contract, nor the date of practical completion as I have found it to be, nor for that matter without the figures being first prepared by the Principal. Put simply, the Superintendent's certification does not comply with the terms of the contract: Legal & General Life Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 336 (per McHugh JA). 8. The Court is also able to look at the product of the Superintendent's labours to see whether the task was performed in accordance with the parties' contractual entitlement, being prepared reasonably and in good faith: Clause 20. As McDougall J explained in Walton v Illawarra at [57]: … it is open to the court to look at the challenged assessments (for extensions of time and valuation of variations and the like), to determine whether or not they equate to the contractual standard of reasonableness, and to substitute its own determination of what should reasonably have been allowed if they do not. 1. The Contractor's proposed construction of clause 34.7 also leads to disharmony with other terms of the Contract: Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99 at 109; [1973] HCA 36 at 7 (per Gibbs J). An input in the calculation of liquidated damages is the date of practical completion. The parties have conferred on the Court a power to determine "another" date of practical completion than the date determined by the Superintendent. Clause 34.7 would produce an absurd result if the Court could adjust the date of practical completion but not the liquidated damages referrable to that date. It is improbable that the parties intended to bring about such a result; such a construction of clause 34.7 should be avoided. 2. Rather, in a situation such as this, the Courts have differentiated between contractual tasks to be carried out by the exercise of a broad discretion and those which are simply mechanical. For the former, a certifier's judgment will not be open to challenge as long as the contractual limits of the discretion entrusted to the certifier were not exceeded. Where a contract provides detailed, fixed and objective criteria as to how the amount to be certified is to be determined, and the certifier arrives at the incorrect amount, the Court will set aside the certificate and order the correct amount to be paid. In doing so, the Court will come to a judgment as to the correct amount owing and make an order accordingly. As Ipp JA explained in WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489 at 495; [1999] WASCA 10 at [18]: Ordinarily, in cases of this kind, … there will be only one uniquely correct value. If the certifying valuer, in these circumstances, arrives at the incorrect value, the valuation will be in breach of the contract. It is for that reason than an incorrect certificate will also be set aside. The court will then have the jurisdiction to determine the correct amount owing in terms of the contract. 1. Clause 34.7 sets out an objective criterion for the calculation of liquidated damages, being $12,100 per calendar day for every day after the date for practical completion until (relevantly), the date of practical completion. Once the relevant dates are determined, the calculation of liquidated damages is a straightforward, mathematical exercise. As the Superintendent has incorrectly calculated liquidated damages, it is open to the Court to determine the correct sum of liquidated damages due to the Principal in accordance with the terms of clause 34.7. The amount is $254,100.

DAMAGES: RETURN OF SECURITY 1. As earlier noted, on 16 October 2017, the Contractor requested return of 50% of the security. The first bank guarantee was not returned at the time. On 14 February 2020, by consent, Hammerschlag J ordered the Principal to deliver up the first guarantee. The Principal's solicitor explained that his client agreed to deliver up the first bank guarantee in return for the Contractor's agreement to an extension of time for the Principal's evidence in chief. The Principal did not thereby admit that practical completion had been reached by agreeing to the return of the bank guarantee. The Contractor did not suggest otherwise. The Contractor confirmed receipt of the bank guarantee on 25 February 2020. 2. Clause 5.4 of the Contract provided, "Upon the issue of the certificate of practical completion a party's entitlement to security … shall be reduced by [50% of amount held], and the reduction shall be released and returned within 14 days to the other party." Here, the Superintendent did not issue a certificate of practical completion at all. I have also found that, in failing to issue a certificate of practical completion, either on 25 September 2017 or in the ensuing five years, the Superintendent did not fulfill all aspects of its role and functions reasonably, as the parties were entitled to expect under clause 20. It was the Principal's obligation to ensure that the Superintendent acted in this manner: clause 20. The Principal was thereby in breach of clause 20, entitling the Contractor to damages equivalent to place the Contractor in the position it would have been if the Principal had caused the Superintendent to issue a certificate of practical completion in a timely manner. If the Principal had attended to its task, then the first guarantee would have been returned in a timely manner as well. 3. The bank charged fees for each bank guarantee at a rate of 1.15% per annum. The fees were charged in advance every six months, in May and November, at $5,405 on each occasion for each guarantee. If the Principal had performed its obligations under Clause 20, the first guarantee would have been returned before the next round of bank fees were charged in November 2017. The Contractor continued to incur bank fees, charged in advance and every six months, until the bank guarantee was released in February 2020. The bank fees incurred between when the first bank guarantee should have been returned and when it was returned totalled $27,025. The Contractor is entitled to damages for bank fees incurred from November 2017 to date, being $27,025. 4. Clause 5.4 of the Contract provided, "A party's entitlement otherwise to security shall cease 14 days after final certificate." Where practical completion was achieved on 25 September 2017, the final certificate produced by the Superintendent on 6 November 2018 (at Schedule 3) was valid as a final certificate served in accordance with clause 37.4 of the Contract. As such, the Principal was required to return the second bank guarantee 14 days later, on 20 November 2018. 5. The Contractor is entitled to the return of the second bank guarantee with interest under clause 37.5 of the Contract, together with the associated costs incurred in maintaining the bank guarantee where it was not returned as required under the Contract. The bank fees paid between when the second bank guarantee should have been returned until now totalled $43,240.

DAMAGES: DEFECTS CLAIM 1. The fifth question is whether the Contract ousts common law damages for defective building work. The starting point was explained by Lord Diplock in Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 at 718: … one starts with the presumption that neither party intends to abandon any remedies for its breach arising by operation of law, and clear express words must be used in order to rebut this presumption. … So when one is concerned with a building contract one starts with the presumption that each party is to be entitled to all those remedies for its breach as would arise by operation of law … To rebut that presumption one must be able to find in the contract clear unequivocal words in which the parties have expressed their agreement that this remedy shall not be available in respect of breaches of that particular contract. Followed in Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 699; [2000] HCA 64 at [23] (per Gleeson CJ, Gaudron and Gummow JJ). 1. In Turner Corporation Pty Ltd v Austotel Pty Ltd (1994) 13 BCL 378, Cole J (as his Honour then was) reviewed a standard form of building contract – not dissimilar to the Contract at hand – and concluded that the contract provided a code which established the rights, obligations and liabilities of the parties, and mechanisms by which completion of the Works was to be achieved to practical completion and during the defects liability period: at 394. Further, at 395: There is, in my view, no room for a 'wider common law right' in the Proprietor to treat non-compliance with the contractual obligation by the Builder as a separate basis for claiming damages … That is because the contract specifies and it confers upon the Proprietor its rights flowing from such a breach; that is, the parties have, by contract, agreed upon the consequences to each of the Proprietor and the Builder, both as to the rights and powers flowing from and the consequences of, such breach. 1. His Honour acknowledged that whether a contract codified the rights and liabilities of the parties depended on the construction of each individual contract, "If a party's common law right to sue for damages for breach of contract is to be contractually removed, it must be done by clear words. … However, it does not mean that express words are required. If on the proper construction of the contract as a whole, it can be said that a party has surrendered its common law right to damages, that construction must be given effect to, notwithstanding absence of express words surrendering the common law right to damages:" at 395. 2. Turner was followed in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302, where White J (as his Honour then was) observed that Cole J's decision had then stood for 15 years "without adverse comment": at [74]. Further, White J agreed with Cole J's reasoning: at [77]. More recently in Bedrock Construction and Development Pty Ltd v Crea [2021] SASCA 66, Doyle JA (with whom Livesey and Bleby JJA agreed) followed Turner and Bitannia: at [127]-[128]. Doyle JA observed at [130]: I do not think there is any room, in the face of the express contractual provisions for addressing defects, for the existence of some wider common law right to recover damages of that nature. Such a right would cut across the contractual regime agreed between the parties. 1. Turner was recently distinguished in Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373, where the subcontract contained broad indemnities that were not qualified by reference to the defect rectification provisions: at [42]. Stynes J concluded at [43]: In light of such indemnity, and absent clear words excluding [the subcontractor's] liability in damages, a more harmonious construction of the Subcontract as a whole is one that permits [the builder] to rely on its common law right to damages even where it has not complied with the contractual provisions governing the notification and rectification of defects. 1. Her Honour did not, however, doubt the correctness of Turner and considered that the concerns expressed by Cole J could be addressed by the principles of mitigation of loss. If the builder failed to give the subcontractor notice of a defect or otherwise failed to provide the subcontractor with an opportunity to rectify the defect, the builder should not be able to recover more in damages than the amount that it would have cost the subcontractor to attend to rectification: at [45]. 2. Accordingly, the issue is whether the provisions of the Contract which dealt with defective work, in particular, clauses 29.3, 35 and 37.4, created a code governing the rights, obligations and liabilities of the parties, such that the Principal may be taken to have abandoned its entitlement to common law damages. 3. Clause 29.3 of the Contract enabled the Superintendent to give a direction to the Contractor in respect of defective work both before and after practical completion: 29.3 Defective work If the Superintendent becomes aware of work done … by the Contractor which does not comply with the Contract, the Superintendent shall as soon as practicable give the Contractor written details thereof. If the subject work has not been rectified, the Superintendent may direct the Contractor to do any one or more of the following (including times for commencement and completion): … (c) redesign, reconstruct, replace or correct the work ... If: (a) the Contractor fails to comply with such a direction; and (b) that failure has not been made good within 8 days after the Contractor receives written notice from the Superintendent that the Principal intends to have the subject work rectified by others, The Principal may have that work so rectified and the Superintendent shall certify the cost incurred as moneys due from the Contractor to the Principal. … 29.5 Timing The Superintendent may give a direction pursuant to this clause at any time before the expiry of the last defects liability period. 1. It will be recalled that clause 35 prescribed a procedure for rectifying defective work immediately prior to practical completion, so as not to affect the date for practical completion: see [30]. After practical completion, clause 35 obliged the Contractor to rectify all defects existing at the date of practical completion as soon as possible. Further, during the defects liability period, the Superintendent was entitled to give the Contractor a direction to rectify defects and also specify whether there would be a separate defects liability period – not exceeding 12 months – commencing when the rectification was completed. Further: If the rectification is not commenced or completed by the stated dates, the Principal may have the rectification carried out by others but without prejudice to any other rights and remedies the Principal may have. The cost thereby incurred shall be certified by the Superintendent as moneys due and payable to the Principal. 1. Further, clause 37.4 provided: 37.4 Final payment claim and certificate … Within 42 days after the expiry of the last defects liability period, the Superintendent shall issue to both the Contractor and the Principal a final certificate evidencing the moneys finally due and payable between the Contractor and the Principal on any account whatsoever in connection with the subject matter of the Contract. … The final certificate shall be conclusive evidence of accord and satisfaction, and in discharge of each party's obligations in connection with the subject matter of the Contract except for: … (b) defect or omission in the Works or any part thereof which was not apparent at the end of the last defects liability period, or which would not have been disclosed upon reasonable inspection at the time of the issue of the final certificate; … (d) unresolved issues the subject of any notice of dispute pursuant to clause 42, served before the 7th day after the issue of the final certificate. 1. I consider that, by these clauses, the Contract established a regime indistinguishable from those analysed in Turner and Bitannia. I note that, in clause 35, the Principal was entitled to have rectification works carried out by others if the Contractor did not rectify a defect by the date directed by the Superintendent, "without prejudice to any other rights and remedies the Principal may have". However, the Contract envisaged that a final certificate would be later issued, evidencing the moneys finally due and payable "on any account whatsoever in connection with the subject matter of the Contract": clause 37.4. Any other rights and remedies which the Principal may have against the Contractor for failing to rectify defects in accordance with the Superintendent's direction would surely fall within this description. 2. Unlike Hacer, the Contract does not contain detailed indemnities which suggest that the Principal was permitted to rely on its common law right to damages even if it had not complied with the contractual regime governing the notification and rectification of defects. 3. As such, I conclude that, by clear words, the parties to the Contract have surrendered their common law right to damages. Where practical completion was achieved on 25 September 2017, the final certificate produced by the Superintendent on 6 November 2018 (at Schedule 3) was served in accordance with clause 37.4 of the Contract. It follows, pursuant to clause 37.4, that the final certificate constituted "conclusive evidence" regarding defects, subject to the exceptions described in that clause.

Reasonable inspection 1. Save for defects referred to in the notices of dispute "served before the 7th day after issue of the final certificate", clause 37.4 provides that the Contractor is discharged from any liability under the Contract except for any defect "which was not apparent at the end of the last defects liability period, or which would not have been disclosed upon reasonable inspection at the time of the issue of the final certificate". Reasonable inspection does not involve having to undertake invasive procedures or access areas that are not readily visible, absent some reason to suspect the existence of a defect: Owners Corporation Strata Plan 61288 v Brookfield Multiplex [2012] NSWSC 1219 at [70]-[71] (per McDougall J). 2. The only expert evidence as to whether the alleged defects were apparent at the end of the last defects liability period, or which would have been disclosed upon reasonable inspection at the time of the issue of the final certificate, was that of the Contractor's experts, who opined that all of the defects would have then been apparent. Other than the use of a ladder, the experts were able to identify the alleged defects with relative ease. 3. The Principal submitted that the expert evidence on this topic was bare assertion and the Court would pay it no regard: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 604; [2011] HCA 21 at [37] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Rather, extensive inspections and investigations of the building were undertaken in 2017 and 2018, which did not reveal the defects identified after the commencement of the proceedings. Therefore, the Court ought conclude that such defects "would not have been disclosed upon reasonable inspection" prior to the commencement of the proceedings in December 2018. 4. I agree that the expert evidence of the Contractor's witnesses was simply stated, but so was the question posed: would this defect have been apparent to you upon reasonable inspection? By and large, the Principal's expert witnesses also agreed that the defects would have been apparent at the relevant time. 5. Further, whilst it is evident that, by the hearing, the Principal and its experts had gone over the buildings with a 'fine tooth comb', the extent to which the buildings were inspected for defects in the defects liability period – between September 2017 and October 2018 – is not entirely clear. Mr Worthington inspected the carpark in August 2017, referred to at [73]. This was before practical completion, when the Contractor's engineer accepted that further works were required. Where 'handover' of the project was then to occur on 1 September 2017, Mr Worthington recommended that he reinspect the completed works and provide a second report. No second report is in evidence. Mr Worthington's report was obviously preliminary in nature and not intended to capture defects in the work as completed. 6. The Superintendent and the architect inspected the buildings at about the date of practical completion – on 4, 8 and 15 September 2017 and 4 October 2017 – presumably for the purpose of ascertaining whether practical completion had been achieved. Their reports did identify a number of defects, presumably to be attended to either before practical completion was considered to have been achieved or during the defects liability period. 7. Ten months later, in June 2018, the Principal obtained an engineering report in respect of the carpark only, concerning concrete finish and construction joints. It was then not until four months later – and after the Contractor had issued its final payment claim – that the Principal proceeded to obtain a flurry of expert reports on the building. 8. That is, as far as the evidence reveals, there was no careful or detailed inspection of Building A and Building B for defects after Travelodge and Wilson Parking commenced operations in September 2017, save for a report obtained on the carpark in June 2018, which focused on particular concerns. The apparently fairly limited investigations undertaken by the Principal at the time do not lead me to infer that the defects for which damages are now sought were not apparent at the time on reasonable inspection. Rather, I infer that the Principal and the Superintendent may have been proceeding on the assumption that practical completion had not been achieved, and would not be achieved, until the rooftop terrace was approved for public use. Consequently, they may have been unprepared for the final payment claim when it came and undertook what inspections they could in the limited time they had to respond to the claim. Given time constraints, or a conviction that the final payment claim was invalid, it appears that only a limited inspection was done at the time. The contractual regime for the notification and rectification of defects applied nonetheless. 9. The schedule of defects served by the Principal on 6 November 2018 listed 150 items. The Principal's Scott Schedule served in June 2020 comprised 382 items. On the basis of the expert evidence adduced by the Contractor, I am satisfied that the defects in the Scott Schedule were apparent at the end of the defects liability period, being 25 September 2018, or would have been disclosed upon reasonable inspection at the time of the issue of the final certificate on 6 November 2018. To the extent that the defects in the Scott Schedule go beyond the schedule of defects served on 6 November 2018, the Principal is not entitled to seek the cost of rectifying such defects, where the contractual regime for the notification and rectification of the defects was not deployed.

Remaining defects 1. Many items in the Scott Schedule had been rectified by the conclusion of the hearing or were not pressed, leaving about 100 items. Ultimately, the Principal sought $1,691,403.90 for acoustic, concrete, fire, hydraulic, mechanical and general defects. 2. The Contractor accepted 25 items. The parties agreed that $21,872.17 was payable in respect of these items. The parties recorded their remaining disagreement in a Scott Schedule. Most of the remaining items were not included in the schedule of defects served by the Principal on 6 November 2018. I did not understand the Principal to cavil with the Contractor's categorisation of defects as to those which were included in the 6 November 2018 schedule and those which were not. I have removed the items which were not notified in accordance with the Contract and recorded my conclusions in relation to the remaining items under a further heading "Decision" in the Scott Schedule, a copy of which is attached to these reasons. The major items in the Scott Schedule are explained further below. 3. In considering the remaining items, I have applied the principle that, where building works are defective because they are not in conformity with contractual requirements, the court will award damages by reference to the costs of rectification, where this is reasonable and necessary: Bellgrove v Eldridge (1954) 90 CLR 613 at 617-618; [1954] HCA 36 (per Dixon CJ, Webb and Taylor JJ); Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916, [38]-[40] (Stevenson J). The Court may draw an inference about the existence of defects generally based on the presence of defects in samples, particularly where the evidence points to the existence of a design issue rather than an issue of poor workmanship: The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 at [185]-[191] (per Ward J).

Item 30: Face plates on ceiling in every guest room need to be replaced, patched and painted 1. Mr Abbott was instructed that the smoke alarm had been installed in 180 hotel rooms on the lower ceiling in the incorrect location. The smoke alarm was moved and a blank face plate installed in its place. Mr Abbott did not physically count the number of times he saw the face plate, but stated "there was lots of them." Mr Abbott considered that the use of a face plate was unsatisfactory; rectification had not been completed in an acceptable tradesmanlike manner and to an accepted industry standard. The cost of rectifying this visual defect was estimated at $28,662.40. Mr Abbott agreed that there was no code or specification that prevented blanks being used for this purpose, "only good workmanship", where experts may differ on what they consider to be good workmanship. 2. Mr Iskowicz observed that the smoke alarm had not been moved in several rooms and remained in the location identified on the design plans. Where the smoke alarms had been relocated from the bulkhead to the room ceiling, he considered that the work had been carried out in a tradesmanlike manner and any defect was aesthetic only. Mr Iskowicz agreed that, "In a perfect world", a hole in the gyprock ceiling would be plastered, sanded and painted so that the previous hole could not be seen, "that would depend on the nature of the discussions that took place". 3. As far as the contemporaneous records reveal, there was a problem with false fire alarms. On 12 January 2018, the Superintendent complained that the hotel had multiple false alarms and associated charges from the fire brigade, and suggested that the Contractor was obliged to pay these charges. On 16 January 2018, the Superintendent gave approval to the Contractor to commence rectification of the smoke detector issue by moving the smoke detectors, "This approval is not an instruction on how to rectify the issue, only that [the Contractor] may proceed with the option they see fit." Mr Baltovski said that, while the Contractor was not responsible for the fire alarms being falsely activated, it relocated the fire alarms and placed blank plates over their original locations, to assist Travelodge. The Contractor also assisted Travelodge to submit a waiver application for reimbursement of the invoices. 4. On 22 January 2018, the Superintendent advised the Contractor that the repair to the hole following the relocation of the smoke detectors was "NOT acceptable. A cover plate was never relayed nor approved by Travelodge. The hole must be repaired, patched and painted." On 13 March 2018, the Superintendent requested the Contractor to remove the face plates that had been installed where smoke detectors had been relocated, and to patch and paint the area to ensure a uniform finish across the ceiling, at no cost to the Principal; "This methodology was never approved by the client nor Travelodge." 5. As I understand Mr Iskowicz's evidence, the smoke alarms were installed in the correct location according to the plans. However, this location led to a series of false fire alarms, apparently due to steam from the bathroom or a nearby kettle. While the Principal has not established that the smoke alarm was installed in the wrong location, the fact that the location specified on the plans proved unworkable points to a defect, where the Contractor warranted that the drawings, including those provided by the Principal, were suitable for the Works: clause 2.2(a)(ii.a). 6. It is clear from the contemporaneous records that there was no discussion between the Superintendent and the Contractor as to how the hole left in the gyprock ceiling following the removal of the smoke alarm would be treated. Instead, the Superintendent left it to the Contractor to "proceed with the option they see fit". Presumably, installing a blank over the hole was quicker and cheaper. 7. I accept that the blank is less aesthetically pleasing than the treatment now sought by the Principal. The question is whether the blank is inconsistent with the Contractor's obligations under the Contract. Clause 29.1 obliged the Contractor to "use suitable new materials and proper and tradesmanlike workmanship". On balance, I consider that using a blank to cover the hole, rather than plaster and paint did not "use suitable new materials and proper and tradesmanlike workmanship" in the absence of the Superintendent or Principal agreeing that the quick, cheap solution was acceptable. 8. Ultimately, the Principal said the defect was present in 193 guest rooms. Extrapolating from Mr Abbott's calculations based on 180 rooms, the Principal submitted that the cost of fixing the defect in 193 rooms was $30,067.72. Mr Madden accepted Mr Abbot's calculations (based on 180 rooms) and thus I have accepted the extrapolated calculations put forward by the Principal.

Item 35: carpet at doorway not level with corridor 1. Mr Andary said he had inspected the carpets of each room and observed that the carpet inside the room is higher than the entry threshold below the door. Mr Abbott did not inspect every room and produced photographs of one room. Mr Abbott added that the fire seal on the bottom of the door was inconsistent in that some dragged on the carpet and some sat above the threshold. He considered this to be a visual defect which also damaged carpet and was a potential trip hazard. On the basis that the defect existed in every room, Mr Abbott estimated that the cost to rectify this was $16,385.60. 2. Mr Madden agreed with the estimated cost but disagreed as to the existence and scope of the defect. Mr Iskowicz noted that the specifications for the carpet in the room were different to those in the hallways. Underlay was specified for the rooms but not the hallways. The threshold for each room and the hallways was required to have a fire compliant transition, being a gap not greater than 10mm between the floor and the bottom of the door. Mr Iskowicz observed the required clearance had been provided and did not observe evidence of damaged carpet or trip hazards. He considered that the transition between the hallway surface and the room surface was consistent and compliant and there was no defect. 3. Mr Abbott said that it was typical in any development where different carpets were being used "to humour one or the other by way of another topping … to bring the two together … It's usually a quick swipe of … another topping that does that, it's not a big deal when a carpet goes down." A screen of a cement-based product was used to build one level up to match the two carpet heights. Mr Iskowicz disagreed as cut cement-based products were not used up against the carpet to lay the next carpet. The difference between the carpet heights was within a millimetre or two, "It's not really something I think that the people would have worried about when they were building." 4. Whilst I accept the Principal's submission that it may be reasonable to infer that the difference in carpet heights observed by Mr Abbott and Mr Andary was present for all hotel rooms, the evidence does not establish that any difference in the carpet heights at the door threshold is a defect, a trip hazard, or was caused by any breach by the Contractor of its obligations under the Contract. In particular, there was no evidence as to what the difference in height between the two carpets was and whether this posed any particular problem to hotel guests or staff. This defect is not established.

Item 149: The green external barricades were not approved by the client 1. Returning to the carpark crash rails, the Principal submitted that the plans and details consistently showed the crash barrier extending to cover the slab edge. The crash rail system as a whole was required to meet the architectural intent of the contract drawings. The crash rail supplied and installed by the Contractor is fixed to the top of the slab with the slab edge exposed. There is no evidence that any variation was sought by the Contractor, or directed or approved, in order to carry out these works in the manner it did. The Contractor's response to the Principal's complaint was to paint the slab edge green. The appropriate method of rectification is the replacement of the existing crash rails with a compliant system, at an estimated cost of $97,238. 2. The Contractor submitted that there was no expert evidence to establish a breach of contract. The scope of works mentioned nothing of the screens or façade. The complaint made by the Principal was said to be new. The Scott Schedule was said to relate to a different defect. 3. The history of the development of the plans in respect of the carpark crash rails is earlier described at [52]-[61]. The design for the crash rails moved from a crash rail with a separate façade structure to a combined structure following the "value engineering" process. However, the revised plans and details continued to refer to crash rails "combined with cantilevered balustrade with perforated & corrugated metal panels". The details continued to depict the panels extending over the slab edge. 4. I agree that what has been installed does not comply with this detail and, whilst the architect appears to have been consulted as to the crash rails to be installed, the Contractor does not appear to have sought, or obtained, a variation from the Superintendent, as required by the Contract. Clause 36.1 of the Contract provided that the Contractor was not to vary the works except as directed (including, approved) in writing. Installation of the crash rails drew the immediate protest of the architect and the Superintendent. I am satisfied that the Contractor breached the Contract. 5. More difficult is what damages, if any, should be awarded. The Scott Schedule in respect of this item claimed, "The green external barricades were not approved by the client". Mr Abbott requested more information from the Principal as to the suggested breach. Mr Iskowicz agreed that more information was required in order to assess this item. 6. Mr Abbott's costing for this item involved removal of the existing green barricades and replacement by Rhinostop Elite type 1 system and the installation of a new hand rail. However, the Principal's complaint is not that the crash rail does not comply with the Contract but that the external façade was not installed in accordance with the plans and details. Mr Abbott has not costed the installation of this façade. Rectification in the manner costed by Mr Abbott would not accord with the plans and details either and, presumably, would be less satisfactory than the current structure. Thus, the costings provided do not assist. 7. Further, from the photographs of the crash rails as installed (see [57]), it appears that the crash rails protrude beyond the slab edge such that it may not be possible to install corrugated metal panels on the outer edge of the crash rail to align with the slab edge. 8. Whilst I accept that the crash rails installed may not meet the architectural intent of the contract drawings, the costs of entirely removing the crash rail system and re-installing a structure which precisely accords with the drawings and plans may be difficult to justify, that is, the cost of rectification may not be reasonable or necessary. In any event, there is no evidence as to what that cost may be where Mr Abbott has estimated the cost of rectification in a manner which is not, in fact, what the Principal wants to occur.

Preliminaries and Builder's Margin 1. Mr Abbott allowed 15% for preliminaries. Mr Madden agreed with that figure if the defects were found to exist and were as extensive as suggested. However, if the defects were limited in quantum to $170,000, then it would not be reasonable to allow a cost for a contractor to undertake all these works. The works would most likely be undertaken by contractors already engaged for maintenance works. In that event, Mr Madden allowed $18,000 for a facilities manager to manage the works, being approximately 200 hours. This represented preliminaries of about 10.5%. 2. The Principal submitted that it was not a builder nor was it involved in the construction industry. It would have to appoint a building or project manager to administer the work necessary to rectify the defects. Nor was it reasonable to expect a facilities manager to undertake the role of builder or project manager. I agree and will allow preliminaries at the percentage suggested by Mr Abbott. 3. Mr Abbott also allowed 15% for the builder's margin. Mr Madden suggested 10% as, based upon his recent review of tenders, the normal builder's margins were now in the vicinity of 3% to 6%. 4. The Principal submitted that Mr Madden's view appeared to be heavily influenced by his experience with greenfield projects, something that Mr Abbott identified as a distinguishing feature in the present case. In the circumstances, the allowance by Mr Abbott should be accepted. Where Mr Abbott had no formal qualifications as a quantity surveyor, the Contractor submitted that the evidence of Mr Madden would be preferred by the Court. I generally preferred the evidence of Mr Madden and will adopt his figure of 10%, noting that it exceeds the figure he is presently seeing by a healthy margin in any event. 5. The total of the agreed defects and the defects which I have found to be established in the attached Scott Schedule total $164,445. Adding preliminaries and builder's margin, this becomes $208,023.

ORDERS AND COSTS 1. Whilst the Contractor is entitled to judgment and orders in respect of unpaid GST and the bank guarantees, the Contractor invited the Court to deduct any sums which the Court determined were payable for building defects. I request the parties to confer and provide final orders to reflect the set-off between the Contractor's claim and the Principal's cross-claim, noting (without including interest calculations): 1. the Contractor is entitled to $188,000 for unpaid GST, damages of $27,025 in respect of the first bank guarantee, damages of $43,240 in respect of the second bank guarantee and an order that the Principal release and deliver up second bank guarantee; and 2. the Principal is entitled to liquidated damages of $254,100 and rectification costs of $208,023. 1. As to costs, the Contractor submitted that the Principal has had the benefit of the use of the site since 12 September 2017, more than 5 years ago, leasing the premises to lessees including Travelodge and Wilson Parking. Notwithstanding this, the Principal refused to concede that practical completion of the works had been achieved. The Principal maintained a cross-claim for a significant award of damages for defective works, initially said to be $8.85 million but ultimately reduced to $1.7 million. The Contractor contended that the Principal was only entitled to a modest award of $72,503. Whilst the Contractor had returned to perform further works at the premises over the past five years, this was done without admission and on a commercial basis. The Contractor was entitled to the return of its bank guarantee and damages. Overall, the Contractor submitted that it was entitled to its costs of the proceedings. 2. The Principal submitted that many of the defects about which it complained were only rectified after the commencement of proceedings in December 2018 or after the bringing of a cross-claim in March 2019. While no damages were claimed for rectification of such defects, the scope of the dispute between the parties would have been substantially narrower if these defective works had been performed in accordance with the Contract. Further, the existence of these (now remedied) defects was said to demonstrate that it was reasonable for the Principal to commission experts to undertake relevant investigations. Irrespective of the final quantum of the unremedied defects, the Principal should have the costs of its expert evidence, including in relation to the hydraulic defects. 3. The Contractor has substantially succeeded in respect of the relief which it sought. The Principal succeeded on its cross-claim, although the degree of success may be described as modest indeed. To some extent, that is because the Contractor has already rectified defective building work during the pendency of these proceedings. However, there is a limit to which I should treat this rectification as an acceptance by the Contractor that the building works were defective and its responsibility. First, the rectification was expressly undertaken on a commercial and without admission basis. Second, as these defects were not the subject of contest at trial, I have not considered the expert evidence in relation to these defects nor made any findings. Third, a party should not be discouraged from rectifying suggested defects on a without admissions basis. If the court was to proceed to take such rectification work as evidence that the defect in fact existed, including by awarding costs in favour of the other party, there would be little reason to resolve complaints in this manner. 4. As to the suggestion that the Principal should, at least, have its costs in respect of its expert reports, it does appear that the Contractor reviewed these reports and proceeded to propose solutions to fix the problems identified by the experts and to undertake rectification works. However, if the Principal had used the contractual regime for notification and rectification of defects by informing the Contractor of these defects in the defects liability period, then the extent of defects to be determined in these proceedings may have been far less or these proceedings may have proved unnecessary. 5. Further, the expert reports also considered a wide range of defects which were not identified in the schedule of defects provided by the Principal on 6 November 2018 and thus were not actionable in these proceedings where the defects were apparent, or would have been apparent on reasonable inspection, on that date. The Contractor was put to the expense of meeting that evidence, including by commissioning a large number of experts itself. A large portion of the hearing was devoted to defects which ultimately do not form part of this judgement. 6. Overall, I consider that the Contractor is entitled to the costs of its claim whilst the Principal should receive a portion of its costs of the cross-claim commensurate with its degree of success. Where the Contractor's costs of its claim are likely far less than the Principal's costs of the cross-claim, a portion of the latter commensurate with the Principal's degree of success is probably roughly equivalent to the Contractor's costs of its claim. In the result, I consider it appropriate in the circumstances to make no order as to costs. 7. For these reasons, I make the following orders: 1. Direct the parties to confer and, within 14 days, provide short minutes of order, preferably agreed, which reflect these reasons for judgment. 2. Direct the parties to notify any errors or omissions within 14 days.

********** Scott Schedule (302889, rtf)

Amendments 06 March 2023 - Correction of date on coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2023